National Union of Workers v BOC Limited

[2013] FWC 9785

[2013] FWC 9785

The attached document replaces the document previously issued with the above code on 12 December 2013.

The reference PR54555 in paragraph [10] has been amended to PR545556.

Abbygayle Lang

Associate to Deputy President Gostencnik

Dated 13 December 2013

[2013] FWC 9785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.447 - Application for variation of protected action ballot order

National Union of Workers
v
BOC Limited
(B2013/1550)

The Australian Workers’ Union
v
BOC Limited
(B2013/1551)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 12 DECEMBER 2013

Application for a variation of Protected Action Ballot Order in B2013/1403

Application for a variation of a Protected Action Ballot Order in B2013/1408.

[1] On 6 December 2013 I issued orders (PR545412 and PR545414) amending protected action ballot orders made on 11 November 2013 (PR544421 and PR544416). The effect of the amendment was to extend the time by which the protected action ballots were to close to 20 December 2013. These are my reasons for making the amendment orders.

[2] The National Union of Workers (NUW) and the Australian Workers’ Union (AWU) are each bargaining representatives in respect of a proposed enterprise agreement which is the subject of bargaining with BOC Limited. On 7 November 2013 the NUW made an application under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in respect of employees of BOC Limited who are members of the NUW and who would be covered by the proposed enterprise agreement. On 8 November 2013 the AWU also made an application in respect of its members who would be covered by the proposed enterprise agreement. The applications were not opposed by BOC Limited and having been satisfied that each of the bargaining representatives in respect of their respective applications has been, and was, at the time I determined each the applications, genuinely trying to reach an agreement with BOC Limited, I made such orders.

[3] The Australian Electoral Commission (AEC) was in each case nominated to conduct the ballot. In consequence of an administrative oversight on the part of the AEC, the AEC was not able to conclude the ballots within the 20 working days specified in each order. On 4 December 2013 the AEC applied to vary each of the protected action ballot orders to enable the protected action ballot in each case to close by no later than 20 December 2013.

[4] BOC Limited did not consent to the variations sought by the AEC and proposed either that the applications for variation be adjourned and not considered until 2014 or alternatively, that the protected action ballot orders be amended so as to provide for the protected action ballots in each case to close in late January 2014. BOC Limited argued that the course they proposed in relation to the amendment applications was appropriate because the AEC had also been appointed by BOC Limited to conduct a ballot of employees who would be covered by the proposed agreement in order to ascertain whether a majority of employees support the agreement. The coincidence of this ballot with protected action ballots would, it was submitted, create confusion and would be contrary to the requirement for bargaining to proceed efficiently and fairly. If a majority of employees voted to support the proposed agreement then a protected action ballot would be unnecessary. If a majority of employees did not support the proposed agreement then a protected action ballot could still occur in late January 2014.

[5] Both the NUW and the AWU opposed BOC Limited’s position and supported the proposed amendment advanced by the AEC. The Unions submitted that they did not accept that concurrent or overlapping ballots would be confusing or contradict the requirement for bargaining to proceed efficiently and fairly. They submitted that concurrent or overlapping ballots are common and that the right of employees to take protected action might be prejudiced if the proposed agreement is not supported by a majority of employees and the protected action ballot is delayed.

[6] I am not persuaded by BOC Limited’s submission particularly as the bargaining representatives do not support the approval of the proposed agreement which is the subject of an approval ballot to be conducted by the AEC. I do not accept that the concurrent or overlapping conduct of protected action ballots would create confusion or be contrary to the requirement that bargaining proceed efficiently and fairly. To the contrary, the conduct of the protected action ballots at this time would make clear to members of the NUW and the AWU that their bargaining representatives do not support the proposed agreement. In this way rather than confuse, it will in my view assist in those employees making an informed choice.

[7] Furthermore the protected action ballots did not proceed pursuant to my original orders through no fault of the bargaining representatives. There has already been a significant delay in the conduct of the ballot. When making a protected action ballot order the Commission must specify a date that will enable a protected action ballot to be conducted as expeditiously as practicable. Overlapping or concurrent ballots will not in my view, affect the practicality of conducting ballots by 20 December 2013. Given the delay that has been occasioned by the administrative error made by the AEC it would not be appropriate to set a date for the conduct of the ballot in late January 2014 or to otherwise adjourn the applications for variation of the orders to a date after the ballot being conducted on the approval of the proposed agreement.

[8] The AEC has advised by its applications to vary, that it is practicable for it to conduct the protected action ballots so that the ballot would close on 20 December 2013. In the circumstances I satisfied that I should make the variation to the protected action ballot orders sought by the AEC.

[9] Variation orders giving effect to this decision have already been issued in PR545412 and PR545414.

[10] As a postscript, I note that since issuing the amendment orders I received notice of an application by the NUW which was not opposed by BOC Limited to revoke the protected action ballot order PR544421 as varied by PR545412. I made a revocation order on 10 December 2013 (PR545556).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR545654>