Liquor, Hospitality and Miscellaneous Union v St John Ambulance Australia

[2010] FWA 9918

[2010] FWA 9918

FAIR WORK AUSTRALIA

DECISION

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

Liquor, Hospitality and Miscellaneous Union
v
St John Ambulance Australia
(B2010/3734)

COMMISSIONER SMITH DARWIN, 22 DECEMBER 2010

Proposed protected action ballot by employees of St John Ambulance Australia (NT).

[1] This is an application for a protected action ballot by members of the Liquor, Hospitality and Miscellaneous Union (LHMU) employed by St John Ambulance Australia. The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of St John Ambulance Australia who are members of the aforementioned union and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply s.443 of the Act which 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.

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] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[5] The next matter to which attention must be given is 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, after hearing submissions from Ms Early, on behalf of the LHMU, that this is the case.

[6] St John Ambulance Australia did not attend the proceedings and made no submission in writing or otherwise. It was notified and did not advise of its intention not to attend.

[7] However, it did send a letter to the LHMU outlining some concerns. The LHMU correctly drew this letter to my attention and on that basis consideration was given to the matters raised. Against the background of that consideration amendments were made to the questions to be asked but it was regrettable that St John Ambulance Australia did not attend to enable its views to be better understood.

[8] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the LHMU, with amendments. My order will issue shortly.

COMMISSIONER

Appearances:

E Early with J Wickham for the Liquor, Hospitality and Miscellaneous Union.

Hearing details:

2010.

Darwin:

December, 22.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR505385>