Australian Municipal, Administrative, Clerical and Services Union v Hazelwood Power T/A International Power GDF Suez
[2012] FWA 6276
•24 JULY 2012
[2012] FWA 6276 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
Australian Municipal, Administrative, Clerical and Services Union
v
Hazelwood Power T/A International Power GDF Suez
(B2012/1155)
COMMISSIONER GAY | MELBOURNE, 24 JULY 2012 |
Proposed protected action ballot by employees of Hazelwood Power T/A International Power GDF Suez.
[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (the Union) for a protected action ballot order in relation to certain employees of Hazelwood Power (trading as International Power GDF Suez (the Respondent).
[2] By email on 20 July 2012, Mr Steve Harkins on behalf of the Respondent, advised Fair Work Australia that the Respondent “...does not intend to oppose the ASU’s Application”.
[3] On 20 July 2012 Mr R Duffy of the Union emailed Fair Work Australia advising:
“As discussed we have some concerns about the list the employer provided to the AEC for the last PAB at Hazelwood.
The employer omitted about 8 ASU members from the list as they said they were redundant and would not be covered by the next agreement. This restructure/redundancy and coverage issue is the subject of ongoing EA negotiations and one of the reasons our members want to take industrial action.
The AEC have subsequently advised that lists normally include all members who are employed at the time of the ballot. The ASU believes that this should be the case at Hazelwood.
It would be our preference that the orders reflect this advice and I am happy to provide the details of the AEC contact person to you.
Can you ask the commissioner how he would like to handle this?”
[4] On 21 July 2012 Mr S Harkins for the Respondent responded in the following way:
“....I refer to Mr Duffy’s email below.
The allegation that Hazelwood omitted eight ASU members from the list of employees it provided to the AEC is false. On the contrary, by email sent at 3.49pm on Monday 2 July 2012, Jackie Nelson, Hazelwood’s Manager of Organisational & Workforce Development, provided the AEC with a complete list of all Hazelwood employees, as requested by the AEC, and the requisite declaration pursuant to Regulation 3.15(2) of the Fair Work Regulations 2009.
Nevertheless, Hazelwood did request the AEC to remove certain employees’ names from the roll of voters under section 454(3) of the Fair Work Act (the Act). The request was made on the basis that the relevant employees have:
applied for and accepted a voluntary redundancy package from Hazelwood; or
been given notice by Hazelwood of the termination of their employment on the grounds of redundancy.
In circumstances where those employees’ employment with Hazelwood was soon to cease, Hazelwood contended that they were not persons “who will be covered by the proposed enterprise agreement to which the ballot relates”, as required by section 453(a) of the Act. Hazelwood is unaware whether or not the AEC was satisfied, pursuant to section 454(3)(a) of the Act, that such persons were not eligible to be included on the roll of voters.
In any case, with respect to the present Application, Hazelwood is of the view that the compilation of the roll of voters is an issue to be determined in accordance with the procedures set out in Part 3-3, Division 8, Subdivision C of the Act, and not in an order made under section 443 of the Act.
The indication I provided you with yesterday – that Hazelwood did not intend to oppose the ASU’s Application – was based on the Draft Order served on Hazelwood at 4.13pm yesterday, Order 3.1 of which states that “The employees to be balloted are those who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the applicant for this protected action ballot order – refer s 437(5).” If the Applicant now seeks a different Order, Hazelwood reserves its right to oppose the Application.
We are happy to provide further information in relation to this issue, or appear before the Commission, if Commissioner Gay considers it necessary.”
[5] As a result of the issues raised by the parties in their email correspondence, the matter was listed for hearing on Friday 27 July 2012.
[6] On 23 July the Union further advised:
“Our members have indicated that they want our PAB application to be determined as quickly as possible.
On this basis alone, the ASU has decided not to press the point in relation to employees which Hazelwood has excluded from the roll.
We therefore rely upon the draft order (in respect of which Hazelwood has confirmed its consent) and request that the Commissioner determine the application on the papers as initially foreshadowed.”
[7] Following the Union’s request of 23 July 2012 for the application to be determined on the papers, the hearing was cancelled.
[8] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.
[9] I am satisfied that the requirements set out in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order [PR526784] based on the draft order provided by the Union has issued in conjunction with this decision.
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