"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Australian Capital Territory Government T/A Australian Capital Territory..

[2011] FWA 1578

[2011] FWA 1578

FAIR WORK AUSTRALIA

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
Australian Capital Territory Government T/A Australian Capital Territory Internal Omnibus Network (ACTION)
(B2011/2641)

COMMISSIONER DEEGAN CANBERRA, 11 MARCH 2011

Proposed protected action ballot by employees of Australian Capital Territory Government T/A Australian Capital Territory Internal Omnibus Network (ACTION).

[1] This is an application for a protected action ballot by members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the Union”) employed by the Australian Capital Territory Internal Omnibus Network (ACTION) (“the Employer”). The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[2] The applicant seeks to ballot specified employees of the Employer who are members of the Union, for whom the Union is a bargaining agent, and who would be covered by the proposed enterprise agreement.

[3] Section 443 of the Act 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.

[4] I am satisfied that the application has been made in accordance with s.437 of the Act.

[5] As to whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted, I am satisfied that this is the case.

[6] The Order is not opposed by the Employer.

[7] As s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. My order will issue separately.

COMMISSIONER

Appearances:

Ms Jane Timbrell, AMWU, for the applicant

Ms Heidi Robinson, ACT Government Solicitor, for the respondent

Hearing details:

Friday, 11 March 2011, Canberra ACT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR507521>