Construction, Forestry, Mining and Energy Union-Australian Capital Territory Branch v Holcim (Australia) Pty Limited

[2012] FWA 4583

[2012] FWA 4583

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union-Australian Capital Territory Branch
v
Holcim (Australia) Pty Limited
(B2012/820)

COMMISSIONER DEEGAN CANBERRA, 29 MAY 2012

Proposed protected action ballot by employees of Holcim (Australia) Pty Ltd

[1] This decision relates to an application made by the Construction, Forestry, Mining and Energy Union (the union) on 25 May 2012, for a protected action ballot of employees of Holcim (Australia) Pty Ltd (the Employer). The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The employer has advised the Tribunal that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] The relevant employees of the employer are currently covered by the CEMEX Australia Pty Ltd Southern NSW Quarries Agreement 2009, which had a nominal expiry date of 30 April 2012. Negotiations are currently taking place in relation to a new enterprise agreement.

[4] The union seeks to ballot employees of the employer who are employed in the three named quarries in New South Wales, who will be covered by the proposed enterprise agreement and who the union represents as a bargaining representative.

[5] The relevant section of the Act, s.443, 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.

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

[7] In support of the application, the union filed a statutory declaration dated 25 May 2012 made by Mr Cameron Hardy, an organiser from the Construction, Forestry, Mining and Energy Union.

[8] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the union that the applicant has been and is, genuinely trying to reach an agreement with the employer of the employees whom are to balloted.

[9] As ss.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. An Order [PR524520] to this effect is issued separately.

COMMISSIONER

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<Price code A, PR524524>