Construction, Forestry, Mining and Energy Union (NSW Branch) v Lyondellbasell Australia Pty. Ltd

[2011] FWA 3862

[2011] FWA 3862

FAIR WORK AUSTRALIA

DECISION

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

Construction, Forestry, Mining and Energy Union (NSW Branch)
v
Lyondellbasell Australia Pty. Ltd
(B2011/116)

COMMISSIONER CAMBRIDGE SYDNEY, 21 JUNE 2011

Proposed protected action ballot by employees of Lyondellbasell Australia Pty Ltd.

[1] On 17 June 2011, the Construction, Forestry, Mining and Energy Union (New South Wales Branch) – Energy Division (CFMEU), made an application for a protected action ballot order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the CFMEU who are employees of Lyondellbasell Australia Pty Ltd (the employer).

[2] The application seeks a ballot of employees of the employer who are members of the CFMEU who would be covered by a proposed enterprise agreement. The application included a Statement of Ms Lorraine Usher dated 17 June 2011 (the Statement). In summary, the Statement provided information about events involving attempts made by the CFMEU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The application was listed for Hearing before Fair Work Australia (FWA) on 21 June 2011, at which time the following appearances were recorded:

Mr A. Bukarica together with Ms L. Usher appeared for the CFMEU;

Ms J. Mansfield, solicitor from Blake Dawson, together with Mr J. Duff appeared on behalf of the employer.

[4] In view of the materials filed and the submissions made by the partiesduring the Hearing, FWA provided an extemporary determination of the application and this Decision is issued as confirmation of that determination.

[5] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“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.”

[6] In this instance I am satisfied that the application has been made in accordance with section 437 of the Act. In particular, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[7] For the benefit of the Australian Electoral Commission who is to conduct the protected action ballot, I note that the parties have expressed a preference to have the ballot conducted by way of a postal ballot. I am prepared to endorse that preference.

[8] Therefore, pursuant to subsection 443(1) of the Act, FWA must make the protected action ballot order sought by the CFMEU. Accordingly an Order [PR510669] is issued separately.

COMMISSIONER

Appearances:

Mr A. Bukarica together with Ms L. Usher appeared for the CFMEU;

Ms J. Mansfield, solicitor from Blake Dawson, together with Mr J. Duff appeared on behalf of the employer.

Hearing details:

Sydney, 21 June 2011

Printed by authority of the Commonwealth Government Printer

<Price code A, PR510668>