Australian Municipal, Administrative, Clerical and Services Union v Electricity Generation and Retail Corporation T/A Synergy

[2016] FWC 1554

[2016] FWC 1554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 – Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v
Electricity Generation and Retail Corporation T/A Synergy
(B2016/353)

DEPUTY PRESIDENT BINET PERTH, 10 MARCH 2016

Proposed protected action ballot of employees of Electricity Generation and Retail Corporation trading as Synergy.

[1] On 4 March 2016 the Australian Municipal, Administration, Clerical and Services Union (ASU) applied for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cwth) (FW Act).

[2] The Application seeks an order for a ballot to be conducted of employees of the Electricity Generation and Retail Corporation T/A Synergy (Synergy) who are represented by the ASU as their bargaining agent and who would be covered by the proposed Synergy Sites Enterprise Agreement 2016 (Proposed Agreement).

[3] The ASU provided a statement from Mr Wayne Wood in support of the Application.

[4] The Application was the subject of a conference on 8 March 2016 following email advice from Synergy on 4 March 2016 that the Application was opposed (Conference). Following negotiations amongst the parties Synergy advised that it consented to a revised order being made. The ASU has agreed to the content of the revised order.

[5] The Fair Work Commission (FWC) is obliged to issue a protected ballot order in the following circumstances:

“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.

(2) The FWC 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 the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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.

[6] Section 437 relevantly provides as follows:

“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.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

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) If 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.”

[7] The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement. The Application specifies the group of employees who are to be balloted. The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. The ASU have proposed that the Australian Electoral Commission conduct the ballot. The Application was accompanied by the documents and other information prescribed by the Fair Work Regulations 2009 (Cwth). I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act.

[8] The ASU has filed evidence of the steps taken by them to bargain and of the progress of bargaining to date. I am satisfied that the ASU has been, and is, genuinely trying to reach an agreement with Synergy.

[9] At the Conference convened on 8 March 2016 Synergy made submissions in support of an application that the FWC exercise its discretion to increase the subsection 414(2)(a) notice period from three working days to seven working days. The ASU did not oppose this application. I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period to seven working days as sought by Synergy.

[10] Having being satisfied that the requirements of subsections 443(1)(a) and (b) of the FW Act have been complied with the ASU application is granted and a protected action ballot order shall be issued.

DEPUTY PRESIDENT

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