Textile, Clothing and Footwear Union of Australia v Riverside Textiles Pty Ltd

[2011] FWA 1325

Note: An appeal pursuant to s.604 (C2011/3488) was lodged against this decision and the order arising from this decision [PR507159] - refer to Full Bench decision dated 25 March 2011 [[2011] FWAFB 1789] for result of appeal.

[2011] FWA 1325

FAIR WORK AUSTRALIA

DECISION

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

Textile, Clothing and Footwear Union of Australia
v
Riverside Textiles Pty Ltd
(B2011/2601)

COMMISSIONER GOOLEY MELBOURNE, 1 MARCH 2011

Proposed protected action ballot by employees of Riverside Textiles Pty Ltd.

[1] The Textile, Clothing and Footwear Union of Australia (TCFUA) applied for a protected action ballot order pursuant to section 437 of the Fair Work Act 2009 (the FW Act). The application was lodged in Fair Work Australia on 25 February 2011.

[2] The matter was listed for hearing on 28 February 2011.

[3] Section 443 of the FW Act provides as follows:

“Section 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.”

[4] I am satisfied that the procedural requirements of the FW Act have been complied with.

[5] I am satisfied that the TCFUA is not seeking to include in the proposed agreement an unlawful term.

[6] I am further satisfied that the applicant is genuinely trying to reach an agreement with the employer.

[7] I have therefore decided to grant the application. An order [PR507159] will issue accordingly. The order will operate on and from today’s date. I will produce written reasons for this decision.

COMMISSIONER

Appearances:

M Richards for the Textile, Clothing and Footwear Union of Australia.

C Hartigan for Riverside Textiles Pty Ltd.

Hearing details:

2011

Melbourne:

February 28.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR507191>