Australian Workers' Union, The v Broadspectrum (Australia) Pty Ltd

[2020] FWC 4568

[2020] FWC 4568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Broadspectrum (Australia) Pty Ltd
(B2020/472)

COMMISSIONER RIORDAN SYDNEY, 31 AUGUST 2020

Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd employed at Port Kembla engaged in any electrical/mechanical and/or miscellaneous rail infrastructure maintenance services work.

[1] On 27 August 2020, the Australian Workers’ Union (the AWU) made an application for a Protected Action Ballot Order (PABO) in accordance with section 437 of the Fair Work Act 2009 (the Act).

[2] The AWU seeks a PABO in relation to employees of Broadspectrum (Australia) Pty Ltd employed at Port Kembla engaged in any electrical/ mechanical and/or miscellaneous rail infrastructure maintenance services work who are members of the AWU who would be subject to the proposed enterprise agreement and for whom the AWU is the bargaining representative.

[3] The Fair Work Commission (the Commission) received correspondence from the employer on 28 August 2020, advising that it opposed the application. The application was set down for hearing on 28 August 2020.

[4] The hearing on 28 August 2020, was adjourned at the request of the Respondent due to the unavailability of the Respondent’s advocate for family reasons. The matter was to be heard on 31 August 2020. Prior to the hearing on 31 August 2020, the Respondent withdrew their opposition to the AWU’s application.

[5] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

Statutory Provisions

[6] The relevant provision of the Act in relation to this application are:

436 Object of this Division

The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.

Conclusion

[7] On the basis of the material before me, including the statutory declaration of Chris Newbold of the AWU, declared on 27 August 2020, I am satisfied that the requirements in section 443(1) of the Act have been met.

[8] Order (PR722240) giving effect to this decision will be issued concurrently.

COMMISSIONER

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