David Mezger v One Earth Outlet Pty Ltd T/A Solar Doctor

[2015] FWC 2941

[2015] FWC 2949

FAIR WORK COMMISSION

DECISION

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

Maritime Union of Australia
(B2015/476)

DEPUTY PRESIDENT SAMS SYDNEY, 29 APRIL 2015

Proposed protected action ballot of employees of National Maritime Services Pty Ltd.

[1] This is an application pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’ ) for a protected action ballot of employees of National Maritime Services Pty Ltd (the ‘respondent’), who are members of the Maritime Union of Australia (the ‘Union’). The application (Form F34) and a draft order were filed on 27 April 2015. The Union seeks to ballot those employees described in clause 3 of the draft orders, who are members of the Union and who are proposed to be covered by an enterprise agreement. Relevantly, the employees are covered by the National Maritime Services & Maritime Union of Australia Enterprise Agreement 2012 [AE406506], which passed its nominal expiry date on 11 March 2015.

[1] The relevant statutory provisions governing the granting of such an 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.

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.’

[2] The Union’s application was supported by a statement of Mr Paul Garrett, Assistant Secretary of the Sydney Branch of the Union. Mr Garrett said that he had responsibility for negotiating terms and conditions of employment for the members of the Union employed by the respondent. The Union and the respondent had exchanged correspondence on 2 March 2015 in which it was agreed to commence negotiations for a new enterprise agreement. The Union had submitted a log of claims on 13 March 2015 and the parties had met on 13 and 27 March and 8 April 2015. A settlement was proposed by the respondent’s representative on 8 April 2015, confirmed in writing on 17 April. After meeting with its members on 24 April 2015, the Union advised the respondent’s bargaining representative that its proposal was not accepted.

[3] Mr Garrett deposed that the Union had been genuinely bargaining in good faith to reach an agreement, but the parties remained apart on key claims. The decision had been made in consultation with its members to lodge this application.

[4] I note that the respondent initially verbally advised my chambers that it opposed the making of the order. However, after the matter was listed for hearing on 29 April 2015, the respondent contacted the Commission to advise that it no longer opposed the making of the order. The hearing was cancelled and the matter has therefore been determined ‘on the papers’.

[5] 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. Given that I am satisfied that ss 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order sought by the Union. The application is granted. An order in terms of the draft order will be published contemporaneously with this decision. It shall take effect on and from 29 April 2015.

DEPUTY PRESIDENT

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