Australian Workers Unionv.Compass Group (Australia) Pty Limited

[2011] FWA 7189

[2011] FWA 7189
[Note: a correction has been issued to this document - see 2011FWA7189_PR515916 signed 20 October 2011]

FAIR WORK AUSTRALIA

DECISION

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

Australian Workers Union
v.
Compass Group (Australia) Pty Limited
(B2011/3511)

COMMISSIONER CONNOR WOLLONGONG, 10 OCTOBER, 2011

Proposed protected action ballot by employees of Compass Group (Australia) Pty Limited

[1] An application has been lodged under s.437 of the federal Fair Work Act 2009 (the Act) by the Australian Workers Union seeking an order for a protected action ballot of its members employed by Compass Group (Australia) Pty Limited. Those AWU members are engaged in canteen services for the Port Kembla steelworks and are presently covered by the terms of the Compass Group (Australia) Pty Limited BlueScope Steel Food Services Collective Agreement 2008 which had a nominal expiry date of Wednesday, 30 March, 2011.

[2] Negotiations for a new enterprise agreement have commenced and there have been numerous meeting between Compass Group and the AWU — on Thursday, 6 January, 2011, Wednesday, 2 March, 2011, Tuesday, 29 March, 2011, Tuesday, 12 April, 2011 and Tuesday, 3 May, 2011. In a written statement accompanying the AWU application, Mr Andy Gillespie, the branch secretary of the AWU (South Coast and Southern Highlands Branch), has referred to telephone calls he has had with Compass Group management, viz:

"...During these conversations I was advised that the company would be unwilling to meet with me for further negotiations until they were certain that they had won a contract with BlueScope..."

[3] The Compass Group disputes that claim but acknowledges that there have been delays in the negotiations. The major issue in dispute is the question of wages. It is the view of the AWU — and me — that the negotiations should nevertheless continue between Compass Group and the AWU and Compass Group has agreed to do so and has made an offer to the AWU, which has nevertheless been rejected by it.

[4] In terms of s.443:

"(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under s.437; and

(b) FWA 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) FWA 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 group 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.

(4) If FWA 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 FWA decides, under subsection 444(1) is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 443(3) is to be the independent advisor for the ballot.

(5) If FWA 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.

Note: Under subsection 414(1) before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee."

[5] The AWU application for a protected action ballot was lodged on Friday, 23 September, 2011 and it was allocated to me and received by me on Tuesday, 27 September, 2011. Such applications are to be dealt with expeditiously and, if practicable within two days [s.441(1)]. However, it was not until Wednesday, 5 October, 2011 that I was in a position to set proceedings down with respect to it in the premises Fair Work Australia now shares with the New South Wales Industrial Relations Commission at 90 Crown Street, Wollongong. Compass Group has sought some time to review its position with the matter. I therefore adjourned the proceedings until Monday, 10 October, 2011 and Tuesday, 18 October, 2011. Ms McCrohan, representing the AWU in the proceedings pressed for the protection action ballot order.

[6] It is a requirement of ss.440 and 441(2) that I be satisfied that within 24 hours after making an application for a protected action ballot order, a copy of the application is provided to the employer. That has been done and Ms Holmes, representing Compass Group by teleconference, indicated that it has no objection to the protected action ballot order sought by the AWU.

[7] I am also satisfied that the application for a protected action ballot before me complies with the requirements of ss.437 and 440. The applicant and the employees have been identified in the draft order provided to me by the AWU. The protected action ballot closes no later than 20 working days from the date of the order. The question to be put in the ballot is whether or not, for the purpose of supporting or advancing claims made in respect of current negotiations for a proposed enterprise agreement, a range of specified industrial actions — work stoppages of varying duration, an indefinite strike or indefinite or periodic overtime bans — should be considered. The ballot is to be conducted by the Australian Electoral Commission as the ballot agent.

[8] I grant the order sought by the AWU.

COMMISSIONER

Appearances:

Laura McCrohan for the Australian Workers Union

Cathy Holmes for Compass Group (Australia) Pty Limited

2011
Wollongong
October, 5 and 10

Printed by authority of the Commonwealth Government Printer

<Price Code A, PR515893>