Australian Workers' Union, The v Bekaert Wire Ropes Pty Ltd

[2016] FWC 6548

[2016] FWC 6548

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.447 - Application for variation of protected action ballot order

Australian Workers' Union, The
v
Bekaert Wire Ropes Pty Ltd
(B2016/957)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Bekaert Wire Ropes Pty Ltd
(B2016/959)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 12 SEPTEMBER 2016

Application for a variation of the Protected Action Ballot Orders in B2016/910 and B2016/913.

[1] On 5 September 2016 the Australian Workers’ Union (AWU) lodged an application pursuant to s.447 of the Fair Work Act 2009 (the Act) for variation of a protected action ballot. The order which is sought to be varied was made by Senior Deputy President Drake on 25 August 2016 (B2016/910) [PR584642].

[2] On 5 September 2016 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) also lodged an application pursuant to s.447 of the Act for variation of a protected action ballot. The order which is sought to be varied was made by Senior Deputy President Drake on 25 August 2016 (B2016/913) [PR84644].

[3] The employer in respect of both applications/orders is Bekaert Wire Ropes Pty Ltd (the Employer) which operates a factory in Newcastle, New South Wales. The two orders issued by Senior Deputy President Drake are in the same terms.

[4] The AWU and CEPU (the Unions) are acting as a bargaining unit. The variations sought to add an additional option for industrial action in Clause 5 “QUESTIONS” of the orders issued by Her Honour, namely:

“Indefinite or periodic bans on paperwork;

Yes [ ] No [ ]”

[5] The Unions submit that this question was inadvertently omitted from the original applications. They also advise that the ballot had been set down for 14 September 2016. The Australian Electoral Commission (AEC) has advised that it will require additional time to conduct the ballot if the orders are varied. Therefore, a variation to Clause 4 of the orders is also sought.

Legislative Provisions

[6] Section 447 provides:

“(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or
(b) if the ballot has not been held before that date and the FWC consents—after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.”

[7] The applications have been lodged before voting takes place. The Commission therefore has a discretion to vary the orders if it considers the variation appropriate.

Commission Proceedings

[8] The orders made by Senior Deputy President Drake were made with the consent of the employer. However, the employer expressed some concern about the variation. Accordingly, a hearing by telephone was held on 8 September – most of the parties being in Newcastle.

[9] The Employer’s concern about the proposed variation was that it might impinge on the need for safety standards to be maintained and also the quality accreditation of the plant and products might be interfered with.

[10] The Unions accepted that there should be an exemption where safety might be compromised but objected to any further exemption. Therefore, full agreement was not reached.

[11] It seems to me that a safety exemption is appropriate. However, the further exemption would tend to have the effect of detracting from the Unions’ rights under the Act to take protected action.

[12] I am satisfied that the orders should be varied so that:

● The date by which the ballot closes shall be 20 days from the date of the variation.

● An additional question be added as follows:

“indefinite or periodic bans on paperwork provided that paperwork which is essential to the safety processes of the plant shall be exempt.”

[13] Orders varying the two protected action ballot orders issued by senior Deputy President Drake on 25 August 2016 are attached to this decision.

DEPUTY PRESIDENT

Appearances:

A. Gounis with P. Delaney for the AWU;

R. De La Cuadra with J. Page for the CEPU;

A.M. Willis for Bekaert Wire Ropes Pty Ltd.

Hearing details:

2016:

September 8 (by telephone).

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