Australian Workers' Union v TAD Pty Ltd

[2009] FWA 1048

[2009] FWA 1048

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Application for a protected action ballot order

Australian Workers’ Union
v
TAD Pty Ltd
(B2009/10775)

COMMISSIONER SMITH MELBOURNE, 13 NOVEMBER 2009

Proposed protected action ballot by employees of TAD Pty Ltd.

[1] The following decision is issued in relation to proceedings conducted on 11 November 2009.

[2] An application for a protected action ballot has been made by the Australian Workers’ Union (AWU) to determine whether employees of TAD Pty Ltd (TAD) wish to engage in particular protected industrial action for a proposed agreement.

[3] The application specifies the group of employees who are to be balloted and the questions to be put including the nature of the proposed industrial action. The application further specifies that the Australian Electoral Commission is to be the protected action ballot agent.

[4] I am satisfied that the ASU has given a copy of the application to TAD and to the employees who are to be balloted within 24 hours of the application being made.

[5] Section 443 of the Fair Work Act 2009 (the Act) provides that the Commission must make a protected action ballot in relation to a proposed enterprise agreement if firstly, the application has been made under s.437 of the Act, and secondly, that Fair Work Australia is satisfied that each applicant has been and is genuinely trying to reach agreement with the employer of the employees who are to be balloted.

[6] TAD objected to the this application insofar as it appeared to cover employees of TAD who were not subject to the current agreement. The application was amended as follows:

Employees of the Respondent who are on-hired to The Australian Steel Company (Operations) Pty Ltd at 528-550 Ballarat Rd, Sunshine, Victoria and are members of the Australian Workers’ Union and are covered by the TAD Pty Ltd Metal & Associated Industries (Smorgon Steel Reinforcing) (Victoria) Agreement 2007 – 2009.

[7] During the proceeding TAD submitted there was some uncertainty about the scope of the wages claim. This was clarified by the AWU and TAD was given 24 hours to determine if its bargaining position could accommodate that claim. By email, I was advised that it continued to resist the claim.

[8] I am satisfied that the AWU is genuinely trying to reach agreement with the TAD. It follows that an order will be made. I am satisfied that the draft order provided complies with s.443(3) of the Act.

[9] The date on which the ballot order closes will be 20 days from the date that the order is made.

COMMISSIONER

Appearances:

P Reilly with K Tapara for the Australian Workers’ Union.

M Hawthorn on behalf of TAD Pty Ltd.

Hearing details:

2009.

Melbourne:

November, 11.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR990653>