Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Veolia Environmental Services

[2011] FWA 6044

[2011] FWA 6044

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
Veolia Environmental Services
(B2011/3356)

DEPUTY PRESIDENT SAMS SYDNEY, 6 SEPTEMBER 2011

Proposed protected action ballot by employees of Veolia Environmental Services .

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot of members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) (‘the Union’) employed by Veolia Environmental Services (‘the employer’), at its Tomago site in New South Wales. The Union seeks to ballot all employees of the employer who are presently covered by the Veolia Environmental Services Industrial Services Northern NSW Union Collective Agreement 2008 (‘the Agreement’) for whom the Union is a bargaining agent and who would be covered by a new enterprise agreement. The Agreement expired on 25 August, 2011.

[2] The relevant statutory provisions governing this application are set out at s 443 of the Act 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.

[3] I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The Tribunal has been advised that the employer does not oppose the making of the proposed order.

[4] In these circumstances, I have determined the matter “on the papers”. Given that I am satisfied that s 443(1)(a) and (b) have been complied with, FWA must make the protected ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

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