Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Isis Central Sugar Mill Company Limited

[2016] FWC 7660

[2016] FWC 7660

FAIR WORK COMMISSION

DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Isis Central Sugar Mill Company Limited
(B2016/1116)

DEPUTY PRESIDENT SAMS SYDNEY, 21 OCTOBER 2016

Protected action ballot of employees of Isis Central Sugar Mill Company Limited.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘the Union’) employed by Isis Central Sugar Mill Company Limited (‘the employer’) who are employed in the Isis Central Sugar Mill in Childers, Queensland. The Union seeks to ballot those employees of the employer who are members of the Union and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining agent.

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

443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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) The FWC 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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 Fair Work Commission (the ‘Commission') was advised on 20 October 2016, that the employer does not oppose the making of the proposed order.

[4] However, the employer submits that, pursuant to s 443(5) of the Act, the Commission should exercise the discretion to extend the period of notice referred to in s 414(2)(a) of the Act to a period of 5 working days. The employer submits that there are exceptional circumstances that would justify the extension of the notice period.The employer states that 3 working days’ notice is unlikely to provide sufficient notice for it to ensure the safety of the plant, quality of product and continuation of supply to customers. The Union does not oppose the extended period of notice being granted. In these circumstances, I have determined the matter ‘on the papers’.

[5] Section 443(5) is obviously directed to s 414(1) and (2) of the Act, which states as follows:

414 Notice requirements for industrial action

Notice requirements--employee claim action

(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.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph--that period of notice

[6] Given the nature of the employer’s operations and the Union applicant not opposing the notice period of 5 days, I am satisfied that there are exceptional circumstances to justify an extension of the notice period specified in s 414(2)(a) of the Act to 5 working days.

[7] Finally, given that I am also satisfied that s 443(1)(a) and (b) have been complied with, the Commission 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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