National Union of Workers

[2015] FWC 6585

[2015] FWC 6585

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
(B2015/1343)

DEPUTY PRESIDENT SAMS SYDNEY, 24 SEPTEMBER 2015

Proposed protected action ballot of employees of Woolworths 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 Woolworths Ltd employed at its Brisbane Liquor Distribution centre in Stapylton, Queensland, and who are members of the National Union of Workers (the ‘Union’). The application (Form F34) and a draft order were filed on 21 September 2015. Relevantly, the employees are covered by the Woolworths Limited Brisbane Liquor Distribution Centre Enterprise Agreement 2013 [AE406463], which reached its nominal expiry date on 2 August 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] In the application, the Union advised that it had served a log of claims on Woolworths Ltd on 24 April 2015 and confirmed that it was a bargaining representative for at least one of the employees to be covered by the proposed enterprise agreement. The parties had met on no less than twelve occasions to negotiate the terms of the proposed enterprise agreement. The Union claimed that it had amended its bargaining position throughout the bargaining process. On 23 September 2015, a representative of the respondent confirmed, in a communication with my chambers, that Woolworths Ltd does not oppose the making of the orders sought by the Union.

[4] 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 24 September 2015.

DEPUTY PRESIDENT

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