“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Department of Parliamentary Services

[2011] FWA 3789

[2011] FWA 3789

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action ballot

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Department of Parliamentary Services
(B2011/2993)

COMMISSIONER DEEGAN CANBERRA, 16 JUNE 2011

Proposed protected action ballot by employees of Department of Parliamentary Services.

[1] This is an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), for a protected action ballot of its members employed by the Department of Parliamentary Services (DPS). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The AMWU seeks to ballot employees of the DPS who are members of the AMWU and who would be covered by the proposed enterprise agreement.

[3] DPS has advised that it does not contest the making of the order or make any submissions on the matter.

[4] In considering this matter I must apply s.443 of the Act which provides as follows:

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] I am satisfied that the application was made in accordance with s.437 of the Act.

[6] I am satisfied, on the basis of the unchallenged statement filed by Mr Ian Morrison on behalf of the AMWU, that the AMWU has been, and is, genuinely trying to reach an agreement with DPS, the employer of the employees who are to be balloted.

[7] Having decided that s.443(1)(a) and (b) have been complied with, I am required to make the protected action ballot order, as sought by the AMWU. My order is published separately.

COMMISSIONER

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