"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Aspen Pharma Pty Ltd (Noble Park site only)
[2011] FWA 4117
•29 JUNE 2011
[2011] FWA 4117 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Aspen Pharma Pty Ltd (Noble Park site only)
(B2011/126)
National Union of Workers
v
Aspen Pharma Pty Ltd
(B2011/3026)
COMMISSIONER ROE | ADELAIDE, 29 JUNE 2011 |
Proposed protected action ballot by employees of Aspen Pharma Pty Ltd.
[1] There are two applications for protected action ballots by members of the National Union of Workers (NUW) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) employed by Aspen Pharma Pty Ltd (the employer). The Application by the AMWU only applies to the Noble Park site. The applications originally identified the company as Aspen Pharmaxare Australia Pty Ltd. The employer acknowledged receipt of the Applications but advised that the employing company was in fact Aspen Pharma Pty Ltd. I agreed to vary the applications and Orders accordingly. The applications are made pursuant to s.437 of the Fair Work Act 2009 (the Act).
[2] The applicants seeks to ballot employees of the employer who are members of the NUW and the AMWU respectively who would be covered by the proposed enterprise agreement, except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day the ballot order is made, unless such an employee has made a conditional termination of that instrument.
[3] The NUW represented its members and the AMWU and its members. The AiGroup represented the employer.
[4] In considering this matter I must apply s.443 of the Act which provides:
“443 When FWA must make a protected action ballot order
(1) FWA 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) 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 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.
(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 444(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] To begin, I am satisfied that the Applications have been made in accordance with s.437 of the Act. I am satisfied that the Applications were not made earlier than 30 days prior to the nominal expiry date of the current agreement, Bristol Myer Squibb, NUW and AMWU Enterprise Agreement 2006, as required by Section 438 of the Act. I am satisfied that the employer received the Applications as required by Section 440 of the Act.
[6] The next matter to which attention must be given is whether or not the applicants have been, and are, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The AiGroup on behalf of the employer outlined the bargaining process which had occurred to date. The AiGroup argued that there were further bargaining meetings scheduled and expressed some concerns as to whether the evidence was sufficient to establish that the unions are genuinely trying to reach agreement. Following suggestions from the Tribunal the draft orders were varied by agreement to allow for two further bargaining meetings to occur prior to the commencement of the ballot. The parties then agreed that it was appropriate I should find that the unions are genuinely trying to reach an agreement with the employer and I so find.
[7] I am satisfied that the proposed orders meet the requirements of Section 443. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft orders therefore adequately describes the groups of employees to be balloted as required by Section 443(3)(b). The AiGroup submitted than one form of industrial action proposed, a ban on paperwork, could have adverse implications for the occupational health and safety of employees and could lead to a breach of workplace safety legislation. In my view this was not an impediment to the granting of the order but is a matter which can be addressed by the employer when and if that industrial action is actually proposed or taken. I suggested, and the unions agreed, a minor amendment to ensure consistency of timing of the two ballots. The AEC will be the ballot agent.
[8] Having decided that s.443(1) (a) and (b) have been complied with, I must make a protected action ballot orders, as sought by the NUW and the AMWU with the amendments agreed during the proceedings.
COMMISSIONER
Appearances:
Dario Mujkic and Mark Cole of the National Union of Workers for the Applicants.
Robert Rondinelli of the AiGroup and Vicki Nagle of the employer for the Respondent.
Hearing details:
2011
Melbourne
June 28
Printed by authority of the Commonwealth Government Printer
<Price code A, PR510989>
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