Maritime Union of Australia, The v P & O Automotive & General Stevedoring Pty Ltd (Poags)

[2011] FWA 8373

[2011] FWA 8373

FAIR WORK AUSTRALIA

DECISION

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

Maritime Union of Australia, The
v
P & O Automotive & General Stevedoring Pty Ltd (POAGS)
(B2011/4033)

DEPUTY PRESIDENT SAMS SYDNEY, 5 DECEMBER 2011

Proposed protected action ballot by employees of P & O Automotive & General Stevedoring Pty Ltd (POAGS).

[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 Maritime Union of Australia (‘the Union’) employed by P & O Automotive & General Stevedoring Pty Ltd (POAGS) (‘the respondent’). The application was filed on 1 December 2011. The Union seeks to ballot those employees specified in clause 5 of the Draft Order, for whom the Union is a bargaining agent and who would be covered by a proposed enterprise agreement.

[2] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

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.

[3] 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.

[4] On 1 December 2011, the respondent identified an error in the nominal start times listed in the application (Form F34) and the draft order. Mr C Ryan, from the Union, provided the Tribunal with written confirmation of the Union’s consent to amending the draft order. Pursuant to s586 of the Act, I amend the application (Form F34) and draft order as follows:

● The first question in Clause 4 ‘Question(s) to be put’ of the Form F34 to be replaced with the words ‘an unlimited number of bans on the commencement of work shifts other than work shifts with a nominal start time of 0730 hours, 0800 hours, 1500 hours and 2200 hours for an indefinite period’.
● The first question in Clause 7 ‘Questions’ of the draft order to be replaced with the words ‘an unlimited number of bans on the commencement of work shifts other than work shifts with a nominal start time of 0730 hours, 0800 hours, 1500 hours and 2200 hours for an indefinite period’.

[5] In addition, the employer confirmed that it does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’. Given that I am satisfied that s 443(1)(a) and (b) have been complied with, FWA must make the protected ballot order, as sought by the Union. Accordingly, an order in terms of the amended draft order will be published contemporaneously with this decision.

DEPUTY PRESIDENT

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