National Union of Workers v Swire Cold Storage Pty Ltd

[2014] FWC 4412

[2014] FWC 4412

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Swire Cold Storage Pty Ltd
(B2014/917 and B2014/918)

COMMISSIONER ROE MELBOURNE, 2 JULY 2014

Proposed protected action ballot by employees of Swire Cold Storage Pty Ltd.

[1] There are two applications for protected action ballots by members of the National Union of Workers (NUW) employed by Swire Cold Storage Pty Ltd (the employer). The applications are 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 and who would be covered by the proposed enterprise agreements.

[1] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

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

“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.

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] To begin, I am satisfied that the Applications have been made in accordance with Section 437 of the Act. I am satisfied that the Applications were not made earlier than 30 days prior to the nominal expiry date of the current agreements, Swire Cold Storage Pty Ltd and National Union of Workers - Clayton and Lyndhurst Enterprise Agreement 2011 and Swire Cold Storage Pty Ltd and National Union of Workers Laverton Collective Agreement 2011, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. My Associate contacted the employer asking whether they objected to the order being issued in relation to both B2014/917 and B2014/918. The employer advised the Fair Work Commission that they did not oppose the making of the Order.

[4] Therefore, the next matter to which attention must be given is whether the statutory requirements have been met.

[5] The NUW provided written materials that satisfy me that 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.

[6] 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 describe the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order in both cases, as sought by the NUW.

COMMISSIONER

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