Australian Municipal, Administrative, Clerical and Services Union v Electricity Networks Corporation trading as Western Power
[2009] FWA 5
•7 JULY 2009
[2009] FWA 5 |
|
DECISION |
Fair Work Act 2009
Sch. 13, Cl 14A - Application for an order that industrial action is taken to be authorised by a protected action ballot
v
Electricity Networks Corporation trading as Western Power
(B2009/10014)
Electrical power industry | |
COMMISSIONER WILLIAMS | PERTH, 7 JULY 2009 |
Application for an Order that protected industrial action authorised under WR Act in relation to a proposed collective agreement is taken to be authorised under FW (TP & CA) Act, involving PR986239 and PR986240.
[1] This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for an order pursuant to s.14A of Schedule 13 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TP &CA) Act), set out below.
“14A FWA may order that industrial action is taken to be authorised by a protected action ballot
(1) A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.
(2) The application must be made within 28 days after the WR Act repeal day.
(3) FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:
(a) on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and
(b) all such industrial action organised or engaged in by the person was:
(i) authorised by a protected action ballot under section 478 of the WR Act; and
(ii) protected action within the meaning of the WR Act; and
(c) the person did not first organise or engage in such industrial action on or after the WR Act repeal day; and
(d) no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and
(e) the proposed enterprise agreement will cover those employees; and
(f) the person is genuinely trying to reach agreement in relation to the proposed enterprise agreement; and
(g) it is reasonable in all the circumstances to make the order.
(4) Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.
(5) For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.”
[2] The ASU has been bargaining with Electricity Networks Corporation trading as Western Power for a collective agreement to regulate the terms and conditions of employment. That bargaining was initiated and proceeded under the Workplace Relations Act 1996 (WR Act). On 20 March 2009 I made a protected action ballot order under s.462 of the WR Act. 1 Protected industrial action has been taken in reliance on that order. The parties have not yet concluded an agreement.
[3] This application was made on 1 July 2009, that is, within 28 days after the WR Act repeal day which was 1 July 2009.
[4] The ASU have provided evidence in the form of an affidavit from Mr Burlinson, the Industrial Campaign Coordinator of the ASU which positively addresses the requirements set out in s.14A(3) of Schedule 13 of the FW (TP & CA) Act. This evidence confirms that:
a) On or after 1 March 2009, the ASU organised industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement.
b) All such industrial action organised by the ASU was authorised by a protected action ballot under s. 478 of the WR Act; and was protected action within the meaning of the WR Act.
c) The ASU did not first organise or engage in such industrial action on or after 1 July 2009, the WR Act repeal day.
d) No collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before 1 July 2009, the WR Act repeal day.
e) The enterprise agreement proposed by the ASU will cover those employees.
f) The ASU is genuinely trying to reach agreement in relation to the proposed enterprise agreement.
[5] The respondent in this matter had initially opposed the application. However following private discussions with the ASU the respondent has advised the Commission that it consents to an order being issued as sought by the ASU on the basis of the following that has been agreed between the parties:
- That the applicant undertakes not to exercise its right to take any form of protected industrial action permitted by the Order until after midnight on July 24th 2009.
- That the applicant and the respondent mutually undertake not to take any form of industrial action, protected or unprotected, against the other or the applicant's members until after midnight on July 24th 2009.
[6] It was also agreed and was recorded on transcript that the respondent would provide paid one hour meetings each week, up to Friday 24 July 2009 and commits to hold negotiations for a collective agreement with the ASU in this period. The negotiations will involve a team of four people from Western Power lead by Bisica Gavaranich and five people from the ASU being an ASU Official plus four delegates.
[7] Returning to the statutory requirements, the evidence of Mr Burlinson satisfies me that the requirements in s.14A(3)(a) to (f) of Schedule 13 of the FW (TP & CA) Act have been met. As for the requirement in s.14A(3)(g) of Schedule 13 of the FW (TP & CA) Act there is nothing that has been put that supports a finding that it is not reasonable, in all the circumstances, to make the order sought.
[8] The application made is consistent with s.14A(1) and (2) of Schedule 13 of the FW (TP & CA) Act. The application also satisfies the requirements in s.14A(3) of Schedule 13 of the FW (TP & CA) Act. Consequently I will exercise the discretion conferred by s.14A(3) of Schedule 13 of the FW (TP & CA) Act to make the order sought.
BY FAIR WORK AUSTRALIA
COMMISSIONER
Appearances:
Mr D Schapper for the Australian Municipal, Administrative, Clerical and Services Union
Mr R Allen of Freehills Lawyers for the Electricity Networks Corporation trading as Western Power
Hearing details:
2009.
Perth:
July 6.
1 PR986239
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