Australasian Meat Industry Employees Union, The

[2013] FWC 5056

[2013] FWC 5056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australasian Meat Industry Employees Union, The
(B2013/1054)

COMMISSIONER LEWIN MELBOURNE, 25 JULY 2013

Proposed protected action ballot by employees of Somerville Retail Services.

[1] On 23 July 2013, the Australasian Meat Industry Employees Union (AMIEU) made an Application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The AMIEU sought to ballot employees of Somerville Retail Services Pty Ltd (Somerville) who are AMIEU members and who would be covered by a proposed Enterprise Agreement.

[2] I have decided to issue a protected action ballot order. 1 The reasons for the issuing of the Order are as follows:

Statutory Provisions

[3] The relevant statutory provisions are set out below:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[4] I am satisfied that the AMIEU is a bargaining representative of employees who will be covered by a proposed Enterprise Agreement, and therefore have standing to make the Application under s. 437 pursuant to s.437(1) of the Act. This is not disputed by Somerville. It is also uncontested by Somerville that the Application specifies the group of employees to be balloted, 2 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.3

[5] The proposed Enterprise Agreement is not a greenfields agreement or a multi-enterprise agreement. 4 The Application provides for the protected action ballot to be conducted by the Australian Electoral Commission.5

[6] Included in the AMIEU’s Application is a Draft Order, Attachments that include Rule 4 of the Registered rules of the AMIEU and a Majority Support Determination issued by Commissioner Roe on 30 August 2012 in respect of Summerville Retail Services Pty Ltd and supplementary material, in the form of Affidavit signed by Mr Jarrod Jones on behalf of the AIMEU.

[7] The supplementary material contains detailed information describing the AMIEU’s attempts to genuinely reach an Enterprise Agreement with Somerville on behalf of the employees who are to be balloted, which is not disputed by Somervillle. I am satisfied that AMIEU are genuinely trying to reach agreement with Somerville accordingly.

[8] I am satisfied that the employer received the Application as required by s.440 of the Act. I received an email in Chambers at 4:08pm, Wednesday 24 July 2013, from Ms Soccio on behalf of Somerville advising that the Company does not object to the Application. The email is outlined below:

On behalf of SRS Pty Ltd, I confirm that the company will not be opposing the secret ballot order.

Form of Order

[9] The form of the Order proposed by AIMEU is set out below:

1. PROTECTED ACTION BALLOT TO BE HELD

The Australasian Meat Industry Employees Union (“Union”) is to hold a protected action ballot of employees of Somerville Retail Services (“Employer”) described in clause 3 of this order in relation to a proposed enterprise agreement.

2. NAME OF PERSON AUTHORISED TO CONDUCT THE BALLOT

The ballot is to be conducted by the Australian Electoral Commission.

3. GROUP OR GROUPS OF EMPLOYEES TO BNE BALLOTED

In accordance with section 437(5), the group or groups of employees to be balloted are: All employees of the Employer who are members of the Union, and for whom the Union is the bargaining representative, and who will be covered by the proposed enterprise agreement except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day the ballot order is made, unless such an employee has made a conditional termination of that instrument

4. DATE BY WHICH BALLOT CLOSES

The date by which the voting in the protected action ballot is to close is twenty (20) working days from the making of this order.

Note: The AEC may, with the consent of the Union, develop a timetable that provides for a close of voting before that date.

5. QUESTION(S) TO BE PUT

For the purpose of supporting or advancing claims made in respect of the proposed enterprise agreement with your employer, do you authorise the following types of industrial action being taken separately, concurrently or consecutively:

An unlimited number of stoppages of the peiformance ofworkfor 24 hours? Yes[] No[]

An unlimited number of stoppages of the peiformance ofworkfor up to 7 days’ duration? Yes[] No[]

An unlimited number of stoppages of the peiformance of work for an indefinite period? Yes[] No[]

An indefinite ban on the peiformance of overtime? Yes []No []

[10] It is noted that the AMIEU seeks to include in the Order a clause that provides for the Australian Electoral Commission (AEC), with the consent of the Union, to develop a timetable that provides for a close of voting before the date specified in Clause 4 of the Order. Clause 4 is provided above.

[11] In my view, the proper application of the relevant statutory provisions is that the order must prescribe with certainty when the protected action ballot is to close.

[12] For this reason that provision of Clause 4 of the Draft Order will not be included in an Order in relation to the Application.

Conclusion

[13] In these circumstances the following statutory provisions have application:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[14] Having regard to all of the above, I must make an Order under s.443 of the Act. I will do so accordingly. The order will not include the Note to part 4 of the draft order.

COMMISSIONER

 1   PR536551.

 2 S437(3)(a) Fair Work Act 2009.

 3 S437(3)(b) Fair Work Act 2009.

 4 S437(2) Fair Work Act 2009.

 5 S.441 Fair Work Act 2009.

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<Price code C, PR539387>