National Union of Workers

[2015] FWC 6740

[2015] FWC 6740

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
(B2015/1159)

DEPUTY PRESIDENT SAMS SYDNEY, 1 OCTOBER 2015

Proposed protected action ballot of employees of Coles Group Supply Chain 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 Coles Group Supply Chain Pty Ltd (‘Coles’) who are members of the National Union of Workers (the ‘Union’) and for whom the Union is a bargaining representative and who work at 10 Roberts Road, Eastern Creek, New South Wales. Relevantly, the employees are covered by the Coles Eastern Creek (NUW) National Distribution Centre Enterprise Agreement 2012 [AE897242], which reached its nominal expiry date on 1 September 2015.

[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] The Union annexed to its Form F34 application, a statement of Ms Marisa Bernardi, an Organiser of the Union. Ms Bernardi said she had first met with representatives of Coles in relation to negotiations for a new enterprise agreement on 3 June 2015 and that a log of claims was endorsed by Union members and served on Coles on 10 June 2015. She listed fifteen further dates on which she had participated in bargaining meetings with Coles and Union delegates, the last of which was on 23 September 2015. Agreement was not able to be reached on some major issues. Ms Bernardi identified ten dates between 1 June and 15 September 2015 on which she had participated in mass meetings with Union members to keep them informed of negotiations. On 11 and 15 September 2015, Union members had endorsed the lodging of an application for a protected action ballot. Ms Bernardi stressed that the Union was ready, willing and able to continue discussions with Coles.

[4] On 28 September 2015, a representative of Coles confirmed, in a communication with my chambers, that Coles does not formally oppose the making of the orders sought by the Union. The determination of this matter was postponed pending the outcome of ultimately unsuccessful negotiations between the parties.

[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 30 September 2015.

DEPUTY PRESIDENT

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