Construction, Forestry, Mining and Energy Union v ACT Government (represented by and acting through the Health Directorate)

[2011] FWA 4961

[2011] FWA 4961

FAIR WORK AUSTRALIA

DECISION

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

Construction, Forestry, Mining and Energy Union
v
ACT Government (represented by and acting through the Health Directorate)
(B2011/3203)

COMMISSIONER DEEGAN BRISBANE, 2 AUGUST 2011

Proposed protected action ballot by employees of the Health Directorate.

[1] This is an application for a protected action ballot of members of the Construction, Forestry, Mining and Energy Union (Union) employed by the ACT Government Health Directorate (Employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[2] The Union seeks to ballot specified employees of the Employer who are members of the Union, for whom the Union is a bargaining agent, and who would be covered by the proposed enterprise agreement.

[3] Section 443 of the Act provides:

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.

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

[5] As to whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted, I am satisfied that this is the case given that the Order is not opposed by the Employer.

[6] A brief hearing was convened on Friday 29 July in order to canvass whether the Employer would be making an application under s.443(5) of the Act for an extension of the notice period required to be given by the Union prior to taking any protected industrial action. After the hearing the Employer advised Chambers that it did not wish to make any applications in respect of the orders sought as it had received assurances from the Union addressing its concerns.

[7] As noted, the Order is not opposed by the Employer and in the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold any further hearings.

[8] As s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. My order will issue separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR512626>