National Union of Workers v Sigma Company Limited

[2012] FWA 7343

[2012] FWA 7343

FAIR WORK AUSTRALIA

DECISION

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

National Union of Workers
v
Sigma Company Limited
(B2012/1512)

COMMISSIONER ROE MELBOURNE, 24 AUGUST 2012

Proposed protected action ballot by employees of Sigma Company Limited.

[1] This is an application for a protected action ballot by members of the National Union of Workers (NUW) employed by Sigma Company Limited (the employer) in Western Australia. The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the NUW who would be covered by the proposed enterprise agreement, except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day the ballot order is made, unless such an employee has made a conditional termination of that instrument.

[3] 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.”

[4] 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 not made earlier than 30 days prior to the nominal expiry date of the current agreement as required by Section 438 of the Act. There are a number of collective agreements applying to various operations of Sigma Company Limited and covering the National Union of Workers. The NUW are seeking a collective agreement for employees who are covered by the Sigma (Western Australia) Enterprise Agreement 2010-2012 which has a nominal expiry date of 30 June 2012.

[5] I am satisfied that the employer received the Application as required by Section 440 of the Act. The employer was advised of the hearing of the Application. The Australian Industry Group on behalf of the employer advised my Associate in writing that they did not oppose the Application.

[6] 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 received submissions and accompanying material from Elizabeth Barrett on behalf of the NUW which demonstrates that bargaining has actively proceeded since May 2012.

[7] Given that the matter is not opposed and the material provided by the NUW I determined that a hearing was not necessary.

[8] I am satisfied that the proposed orders meet the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft orders therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[9] 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 NUW.

COMMISSIONER

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