National Union of Workers v Corporate Express Australia Ltd
[2011] FWA 3694
•10 JUNE 2011
[2011] FWA 3694 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
National Union of Workers
v
Corporate Express Australia Ltd
(B2011/2958)
COMMISSIONER LEWIN | MELBOURNE, 10 JUNE 2011 |
Proposed protected action ballot by employees of Corporate Express.
[1] This matter concerns an application by the National Union of Workers (NUW) for an order pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot to be conducted by the Australian Electoral Commission.
[2] The application was filed on 7 June 2011.
[3] The application is made in respect of employees of Corporate Express Australia Ltd (Corporate Express) for whom the NUW, the bargaining agent for a proposed Enterprise Agreement, between Corporate Express and its employees.
[4] The relevant statutory provisions are set out below:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) 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 the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
...
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.”
[5] On 9 June 2011 I issued directions that the NUW file grounds in support of the application and that such grounds be served upon Corporate Express by close of business 10 June 2011.
[6] At 12:36 pm on 10 June 2011 the NUW complied with the direction and filed grounds in support of the application, which were served upon Corporate Express. The grounds filed by the NUW included an affidavit of an official of the organisation, Adam Auld.
[7] Mr Auld’s statement relevantly outlines that the NUW and Corporate Express have been in negotiations for the making of a new agreement since March 2011 during which time six meetings have occurred between the parties. Mr Auld stated that whilst progress has been made there have been a number of changes to the bargaining positions of both parties and there are several substantive matters that are preventing the parties from reaching an agreement.
[8] At 1:25pm on 10 June 2011 Corporate Express notified Fair Work Australia that it agreed that the NUW was genuinely trying to reach agreement with Corporate Express.
[9] I am satisfied that the NUW is a bargaining agent able to make the application in this matter and that the NUW is genuinely trying to reach an agreement as required by the Act for the purposes of this application.
[10] In these circumstances I must make an order sought by the application. Corporate Express has made no submissions as to the form or content of the order. Accordingly, I will make an order in the terms sought by the application.
COMMISSIONER
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