National Union of Workers v The Shell Company of Australia Limited

[2009] FWA 250

[2009] FWA 250

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

National Union of Workers
v
The Shell Company of Australia Limited
(B2009/10445)

COMMISSIONER LEWIN MELBOURNE, 8 SEPTEMBER 2009

Proposed protected action ballot by employees of Shell Company of Australia - Bitumen operations.

[1] This matter concerns an application by the National Union of Workers for an order pursuant to s.447 of the Fair Work Act 2009 (the Act) for a protected action ballot to be conducted by the Australian Electoral Commission, and put to the persons employed by The Shell Company Australia Limited (Shell) as bitumen operators.

[2] The matter was listed for hearing at 2.30 pm on Thursday 13 August 2009. The application was subsequently adjourned. It became apparent that the application would not be contested. My Associate later contacted Mr Lange of the Respondent’s legal representatives, who advised that Shell “did not oppose the issue of the draft orders on the terms that they appeared in the application.”

[3] At approximately 9.30 am on 25 August 2009, I prepared a Draft Order in this matter, and provided a copy of that draft order to the parties. The parties were invited to respond to the proposed draft orders by 5.00 pm on 25 August 2009. An Order was issued that day.

[4] The Tribunal is not required to hold a hearing in order to make a determination subject to s.437 of the Act. The relevant statutory provisions are set out below:

“590 Powers of FWA to inform itself

(1) FWA may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), FWA may inform itself in the following ways:

(a) by requiring a person to attend before FWA;

(b) by inviting, subject to any terms and conditions determined by FWA, oral or written submissions;

(c) by requiring a person to provide copies of documents or records, or to provide any other information to FWA;

(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);

(e) by requiring an FWA Member, a Full Bench or the Minimum Wage Panel to prepare a report;

(f) by conducting inquiries;

(g) by undertaking or commissioning research;

(h) by conducting a conference (see section 592);

(i) by holding a hearing (see section 593).

593 Hearings

(1) FWA is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

(2) If FWA holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

Confidential evidence in hearings

(3) FWA may make the following orders in relation to a hearing that FWA holds if FWA is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) orders that all or part of the hearing is to be held in private;

(b) orders about who may be present at the hearing;

(c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;

(d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

(i) evidence given in the hearing;

(ii) matters contained in documents before FWA in relation to the hearing.

(4) Subsection (3) does not apply to the publication of a submission made to FWA for consideration in an annual wage review (see subsection 289(2)).

[5] Written submission were received on behalf of the Respondent and the Respondent submitted amendments to be made to the Draft Orders. The NUW filed correspondence in support of the issue of the Draft Orders on the amended terms. Amendments to the Draft Order were made in accordance with the Respondent’s request.

[6] On what was before me I was satisfied that the statutory requirements for the making of a protected action ballot order had been met and that an order should be issued in accordance with the statutory direction prescribed by s.443(1) of the Act.

[7] The Order specified the matters required by s.443(1) of the Act. A copy of the Order was provided to the applicant, to the respondent, and the ballot agent in accordance with s.445 of the Act.

COMMISSIONER

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