Australasian Meat Industry Employees' Union, The v Western Contracting (Vic) Pty Ltd
[2011] FWA 889
•9 FEBRUARY 2011
[2011] FWA 889 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australasian Meat Industry Employees' Union, The
v
Western Contracting (Vic) Pty Ltd
(B2011/2553)
COMMISSIONER ROE | MELBOURNE, 9 FEBRUARY 2011 |
Proposed protected action ballot by employees of Western Contracting (Vic) Pty Ltd.
[1] This is an application for a protected action ballot by members of the Australasian Meat Industry Employees Union (AMIEU) employed by Western Contracting (Vic) Pty Ltd (the Employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).
[2] The applicant seeks to ballot employees of the Employer who would be covered by the proposed enterprise agreement and who are members of the AMIEU. The particular employees are those who are members of the Union and are employed to work as slaughterers on the slaughter floor at the meal processing establishment operated by the Employer at Nott Road Ararat who are covered by the Western Contracting Slaughtering Section Ararat and Western Contracting Pty Ltd Enterprise Agreement (the Agreement) and for whom the AMIEU is the bargaining representative.
[3] In considering this matter I must apply s.443 of the Act which provides:
“443 When FWA must make a protected action ballot order
(1) FWA 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) FWA 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.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) 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 FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
[4] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, as required by Section 438 of the Act. That Agreement has a nominal expiry date of 1 January 2011 (Clause 1A of the Agreement). I am satisfied that the Employer received the Application as required by Section 440 of the Act.
[5] Mr Barrie Chalkley, union organiser for the AMIEU gave evidence that all or nearly all of the slaugheterpersons who would be covered by the proposed agreement are members of the Union and that to the best of his knowledge the AMIEU is the only bargaining representative representing employees who would be covered by the proposed agreement. (Paragraph 10 of the Statement of Barrie Chalkley).
[6] I am satisfied that the AMIEU under its rules is entitled to represent the slaughterpersons employed by the Employer.
[7] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. I am satisfied, after considering the evidence of Mr Chalkley, that this is the case. Mr Chalkley gave evidence that a log of claims has been presented to the Employer and that there have been four meetings with the Employer to discuss the claims. A number of issues have been resolved. The AMIEU is prepared to engage in further negotiations. The Employer did not challenge this evidence.
[8] The scope of the agreement sought by the AMIEU is the same as the scope of the current Agreement.
[9] I received email advice from Ted Rogers on behalf of the Employer on 9 February 2011 that “Western Contracting does not oppose the application for protected action ballot order”.
[10] Having decided that s.443(1) (a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AMIEU.
[11] I have considered the draft order prepared by the AMIEU. I am satisfied that it meets the requirements of Section 443(3). The Australian Electoral Commission will be the ballot agent. I am satisfied that the questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order adequately describes the group of employees to be balloted as required by Section 443(3)(b).
[12] The order sought will be issued separately.
COMMISSIONER
Appearances:
Mr B Chalkley for the Applicant.
No appearance from the Respondent.
Hearing details:
2011
Melbourne
February 9
Printed by authority of the Commonwealth Government Printer
<Price code A, PR506651>
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