Finance Sector Union of Australia v SGE Credit Union Limited

[2011] FWA 5047

[2011] FWA 5047

FAIR WORK AUSTRALIA

DECISION

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

Finance Sector Union of Australia
v
SGE Credit Union Limited
(B2011/3187)

DEPUTY PRESIDENT SAMS SYDNEY, 1 AUGUST 2011

Proposed protected action ballot of employees of SGE Credit Union Limited.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot of members of the Finance Sector Union of Australia (‘the Union’) employed by SGE Credit Union Limited (‘the respondent’). The application, filed on 26 July 2011, was accompanied by a statement from the Union’s Legal Organiser, Ms Angela Budai, which included extensive documentation demonstrating the extent of bargaining negotiations with the respondent since April this year. The Union seeks to ballot specified employees of the respondent who are members of the Union, for whom the Union is the bargaining agent and who would be covered by the proposed enterprise agreement.

[2] At a hearing of the application on 28 July 2011, Mr C Harris appeared for the Union and Mr N Chadwick, Solicitor, appeared, with permission, for the respondent. Mr Harris tendered a draft order for the Tribunal’s approval. Mr Chadwick did not dispute that the Union had been genuinely seeking to negotiate an agreement with the respondent. However, he raised specific concerns with the inclusion of ‘executives’ in the ballot and with two questions proposed to be included in the list of ballot questions. Mr Harris agreed to delete the reference to ‘executives’ in the draft order and to amend the question concerning ‘work to rule’ by specifying that it is to apply to the taking of scheduled breaks. While Mr Chadwick did not support the application, in light of the changes proposed by the Union, he did not oppose Fair Work Australia (FWA) granting the application and making the amended order.

[3] Section 443 of the Act provides as follows:

(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.

[4] Having considered the submissions of the parties, I am satisfied that this 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, given that the order is not opposed by the employer and Mr Chadwick’s acknowledgement in that respect, I am satisfied that this leg of s 443(1) has been met.

[6] As s 443(1)(a) and (b) have been complied with, FWA must make the protected action ballot order, as sought by the Union. I propose to do so and an order giving effect to this decision is published separately [PR512666].

DEPUTY PRESIDENT

Appearances:

Mr C Harris, Finance Sector Union of Australia

Mr N Chadwick, Chadwick Workplace Law, for SGE Credit Union Limited

Hearing details:

2011
SYDNEY
28 July

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<Price code A, PR512733>