National Union of Workers

[2016] FWC 1636

[2016] FWC 1636

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
(B2016/37)

DEPUTY PRESIDENT SAMS SYDNEY, 17 MARCH 2016

Proposed protected action ballot of employees of HP Distribution Pty Limited.

[1] On 14 March 2016, the National Union of Workers (the ‘Union’), lodged an application, pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’), for a protected action ballot of employees of HP Distribution Pty Ltd (the ‘respondent’). The proposed protected action ballot is to cover employees of the respondent who are members of the Union, for whom the Union is a bargaining representative and who work at 40 Blackbird Close and 1 Aviation Drive in Hoxton Park, New South Wales. Relevantly, the employees are covered by the HP Distribution Pty Ltd Greenfields Agreement 2011, which reached its nominal expiry date on 31 January 2016.

[2] The relevant statutory provisions governing the granting of an application of this kind 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.

[3] In support of the application, the Union relied on a statement of Mr James Nero, who is employed by the Union, and who represents the employees as part of his current duties. He explained that on 11 August 2015 he had served a log of claims endorsed by the Union’s members on the respondent. He listed twelve further dates between 27 August 2015 and 23 February 2016 on which he had attended meetings with the respondent to negotiate a new enterprise agreement. However, agreement on the major issues could not be reached and on 16 February 2016, the Union’s members authorised the Union to seek an application for a protected action ballot order. Mr Nero deposed that the Union remained ready, willing and able to discuss claims with or consider the offers of the respondent.

[4] On 15 March 2016, an officer of the respondent wrote to my chambers and advised that that the respondent did not object to the Commission making the order sought by the Union. The Union supplied an amended draft Order addressing some drafting issues on 16 March 2016 and the respondent advised that it had no objection to these changes. As a consequence, the application is determined ‘on the papers’.
[5] The Commission is 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 and the application is granted. An order reflecting the terms of the draft order will be published contemporaneously with this decision. It shall take effect on and from 17 March 2016.

DEPUTY PRESIDENT

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