National Union of Workers v Mars Australia Pty Ltd

[2016] FWC 1911

[2016] FWC 1911

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Mars Australia Pty Ltd
(B2016/373)

COMMISSIONER RYAN MELBOURNE, 29 MARCH 2016

Proposed protected action ballot of employees of Mars Australia Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by National Union of Workers (NUW) for a protected action ballot order in relation to employees of Mars Australia Pty Ltd (the Respondent). The application was made on 15 March 2016. The application did not include a draft order as required, and

[2] The Respondent notified the Commission that it held objections to the application and as such a Directions hearing was listed before Gostencnik DP on 18 March 2016. Consequently, directions were issued to the parties and a Hearing was listed before me on
1 April 2016.

[3] The Respondent’s representative, Ms Alison Spivey, corresponded directly with the NUW regarding the nature of the Respondent’s objections, which related to whether or not the NUW was genuinely trying to reach agreement with the Respondent and, it appears, an administrative error in the response given to question 2.2 in the Form F34 application.

[4] On 21 March 2016 the NUW filed its outline of submissions and witness statement of Neil Smith, an official of the NUW.

[5] On 24 March 2016 Ms Spivey wrote to the NUW and advised that it withdrew its objection and that it would not now be filing an outline of submissions in support of its objection, subject to the NUW filing an amended application which addressed the perceived error.

[6] From information before me now, the error referred to in the application was simply the omission of the Respondent’s name in the preamble to the questions, which I note was not duplicated in the draft order filed in this matter on 15 March 2016, and which I would in any event have simply dealt with by including the Respondent’s name in the preamble to the questions in any Order I issue.

[7] It should be noted that the Commission did not require an amended application to be filed by the NUW.

[8] On the basis of the material before me, it appears that the objections of the Respondent were spurious. As such I have vacated the Hearing listed for 1 April 2016 and will determine this matter on the papers.

[9] Section 443(1) of the Act states:

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.

[10] The NUW has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Neil Smith, an official of the NUW.

[11] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the NUW.

COMMISSIONER

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