Australian Municipal, Administrative, Clerical and Services Union v Transfield Services (Australia) Pty Ltd

[2015] FWC 2849

[2015] FWC 2849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Transfield Services (Australia) Pty Ltd
(B2015/466)

COMMISSIONER GREGORY MELBOURNE, 24 APRIL 2015

Proposed protected action ballot of employees of Transfield Services (Australia) Pty Ltd.

[1] The Australian Municipal, Administrative, Clerical and Services Union (“the ASU”) has made application for a protected action ballot order under s.437 of the Fair Work Act 2009 (Cth) (the Act) in respect of its members employed by Transfield Services (Australia) Pty Ltd (“Transfield”) who carry out work in respect of a contract Transfield has with the Mornington Peninsula Shire Council. The application is supported by a statutory declaration made by Mr James Weissmann, an organiser with the ASU. It states that the nominal expiry date of the existing Agreement that now covers the parties is 31 March 2015.

[2] Transfield opposes the application on the basis that it is premature, given the ongoing negotiations between the parties, and the possibility of an agreed outcome being reached in the near future.

[3] Section 443 of the Act provides that the Commission must make a protected action ballot order if an application has been made under s.437, and the associated requirements of the Act have been satisfied, including that the Applicant is genuinely trying to reach agreement.

[4] I am satisfied that the ASU is a bargaining representative for the employees sought to be covered by the proposed Agreement. I am also satisfied the application specifies the group of employees to be balloted and the questions to be put, including the nature of the proposed protected action. I am also satisfied the requirements of s.440 of the Act have been satisfied and within 24 hours of making this application the ASU gave a copy to Transfield and the ballot agent.

[5] As indicated, I am also satisfied the ASU is “genuinely trying to reach agreement” in accordance with the requirements of s.443.

[6] The ASU’s log of claims was provided to Transfield on 5 March 2015. It concerns a proposed enterprise agreement for Transfield’s employees who carry out work in respect of a contract Transfield has with the Mornington Peninsula Shire Council. The Statutory Declaration provided by Mr Weissmann indicates that negotiations between the parties have taken place on 7 separate occasions since that time, the last occasion being on 21 April 2015. It also indicates that agreement has been reached on a number of matters in those negotiations, but a range of issues still remain outstanding. I am satisfied that through these processes the ASU has made known to Transfield the nature of its claims and the basis upon which an agreement is sought to be concluded. I am also satisfied that Transfield has in response foreshadowed, at least in general terms, its attitude to the proposed Agreement.

[7] I am satisfied, in conclusion, that the requirements of the Act in respect of an application made under s.437 have been met. I accordingly propose to make an Order in the terms sought by the ASU. That Order will be issued in conjunction with this decision.

COMMISSIONER

Mr James Weissmann appeared on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

Mr Nick Koletsis appeared on behalf of Transfield Services (Australia) Pty Ltd.

Hearing details:

2015.

Melbourne:

23 April.

Printed by authority of the Commonwealth Government Printer

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