National Union of Workers v Martin Brower Australia Pty Ltd

[2015] FWCA 5541

[2015] FWC 5569

FAIR WORK COMMISSION

REASONS FOR DECISION

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

National Union of Workers
v
Martin Brower Australia Pty Ltd
(B2015/660)

DEPUTY PRESIDENT SAMS SYDNEY, 14 AUGUST 2015

Proposed protected action ballot of employees of Martin Brower Australia Pty Ltd – orders opposed – whether applicant genuinely trying to reach agreement – uncontested and uncontradicted evidence – evidence must be accepted – order must be made.

[1] On 11 August 2015, the Commission granted an application, pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’) filed by the National Union of Workers (the ‘Union’) and issued protected action ballot orders in relation to members of the National Union of Workers employed by Martin Brewer Australia Pty Ltd who work at 11 Bessemer Street, Blacktown NSW 2148. These are my reasons for doing so.

[2] The application (Form F34) and a draft order were filed on 5 August 2015. Relevantly, the employees are covered by the Mckey Distribution – Sydney Warehouse Agreement 2012 [AE896275], which passed its nominal expiry date on 31 July 2015. The relevant statutory provisions governing the granting of applications 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’s application was supported by statements of Mr Terry McQuillan (Union Official) and Mr Nick Belan (Union Organiser). Mr Belan stated that he has had responsibility for the relevant members’ industrial interests since late 2014. He had discussed potential claims with the site delegates prior to the commencement of negotiations for a new enterprise agreement. A log of claims was endorsed by the members and served on the respondent on 6 May 2015. Negotiations began on 27 May 2015. Prior to taking extended personal leave, he had briefed Mr McQuillan, who took over the negotiations for the Union. After returning from leave, Mr Belan attended a meeting with Mr McQuillan, Union Delegates and the respondent on 30 July 2015.

[4] In his statement, Mr McQuillan explained he had attended meetings with the respondent and Union delegates on 17 June, 1 July, 22 July and 30 July 2015, with a further meeting scheduled for 12 August 2015. The Union had made a genuine effort to negotiate an outcome, but agreement on major issues could not be reached. Mr McQuillan had met with Union members on 15 July, 16 July, 27 July and 30 July 2015. Members had endorsed an application for protected action ballot orders at the latter two meetings.

[5] The applciation was listed for hearing on 11 August 2015 after the respondent indicated that it wished to be heard as to the orders being proposed. Mr M Valentin appeared with Mr T McQuillan for the Union and Mr I Lilley appeared with Ms S Sharma for the respondent. While Mr Lilley objected to the application on the basis that the respondent did not believe the Union was genuinely trying to reach an agreement, he did not require Mr McQuillan and Mr Belan for cross examination. No evidence was relied on by the respondent. That being the case, and in the absence of any contrary evidence, Mr McQuillan’s and Mr Belan’s evidence must be accepted.

[6] As I was satisfied that the application was 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 (ss 443(1)(a) and (b)), the Commission must make the protected action ballot order. The application was granted. An order reflecting the terms of the draft order was issued on 11 August 2015.

DEPUTY PRESIDENT

Appearances:

Mr M Valentin and Mr T McQuillan for the National Union of Workers.

Mr I Lilley and Ms S Sharma for Martin Brewer Australia Pty Ltd.

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<Price code A, PR570787>