National Union of Workers v Statewide Independent Wholesalers Ltd

[2013] FWC 9348

[2013] FWC 9348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Statewide Independent Wholesalers Ltd
(B2013/1511)

COMMISSIONER LEE MELBOURNE, 27 NOVEMBER 2013

Application for a protected action ballot by employees of Statewide Independent Wholesalers Ltd.

[1] This matter involves an application by the National Union of Workers (the Applicant) for a protected action ballot order in relation to certain employees of Statewide Independent Wholesalers Ltd (the Employer), made on 25 November 2013.

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

“(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.

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.”

[3] On 26 November 2013, my Chambers was advised by the Employer that it did not object to the application. The Employer did not seek to make submissions or be heard on the matter (that is, the Employer did not challenge that the Applicant has been and is genuinely trying to reach an agreement).

[4] The Applicant has provided a statutory declaration of Mr Dario Mujkic, Industrial Officer, NUW, declared on 26 November 2013, addressing the requirements of sections 437, 438, 440 and 443 of the Act.

[5] In the circumstances, I have decided to determine the matter on the papers.

[6] I am satisfied that the application meets the requirements of section 437 of the Act. I am satisfied that the application meets the requirements of section 438 of the Act, that is the application has not been made earlier than 30 days before the nominal expiry date of the enterprise agreement covering the employees who will be covered by the proposed enterprise agreement.

[7] I am satisfied that the requirements of section 440 of the Act have been met.

[8] I am satisfied that the requirements of section 443 of the Act have been met, in particular that the Applicant has been and is genuinely trying to reach an agreement with the Employer and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[9] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR545082] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR545081>