National Union of Workers v Ross Cosmetics Australia Pty Ltd

[2012] FWA 3057

[2012] FWA 3057

FAIR WORK AUSTRALIA

DECISION

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

National Union of Workers
v
Ross Cosmetics Australia Pty Ltd
(B2012/657)

COMMISSIONER ROE MELBOURNE, 10 APRIL 2012

Proposed protected action ballot by employees of Ross Cosmetics Aust Pty Ltd.

[1] This is an application for a protected action ballot by members of the National Union of Workers (NUW) in respect to those the NUW represents in bargaining employed by Ross Cosmetics Aust Pty Ltd (the Respondent). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act). The Application was made in the morning of 4 April 2012 and was determined on 5 April 2012.

[2] The matter was heard on 5 April 2012.

[3] The nominal expiry date of the current Enterprise Agreement has passed.

[4] The applicant seeks to ballot employees of the Respondent who would be subject to a proposed enterprise agreement and who are represented by the bargaining representative, the NUW.

[5] In considering this matter I must apply s.443 of the Act which provides:

“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.

(2) FWA 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.

(4) If FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA 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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[6] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that the Application was served upon the Respondent and the AEC as the ballot agent as required by Section 440 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, as required by Section 438 of the Act.

[7] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. I am satisfied, after hearing submissions from the NUW that this is in fact the case. The Respondent employer did not oppose my finding that the parties are genuinely trying to reach an agreement or the making of the Orders sought.

[8] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Applicant and as varied by agreement during the proceedings. At the conclusion of the proceedings I advised the parties that I would issue the Order. I have published that Order separately.

COMMISSIONER

Appearances:

Ms E Masters appeared for the Applicant.

Ms G Collier appeared for the Respondent.

Hearing details:

2012
Melbourne
April 5

Printed by authority of the Commonwealth Government Printer

<Price code A, PR522248>