The Association of Professional Engineers, Scientists and Managers, Australia & The Construction, Forestry, Mining & Energy UnionVOceanic Coal Pty Ltd

[2011] FWA 7358

[2011] FWA 7358

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 437 - Applications for protected action ballot orders

The Association of Professional Engineers, Scientists and Managers, Australia & The Construction, Forestry, Mining & Energy Union
V
Oceanic Coal Pty Ltd
(B2011/3770 & B2011/3781)

DEPUTY PRESIDENT SAMS SYDNEY, 26 OCTOBER 2011

Proposed protected action ballot by employees of Oceanic Coal Pty Ltd.

[1] This decision concerns two applications, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot of members of the Association of Professional Engineers, Scientists and Managers, Australia (‘APESMA’) and the Construction, Forestry, Mining and Energy Union (‘CFMEU’) employed by Oceanic Coal Pty Ltd (‘the employer’), at its West Wallsend site in New South Wales. APESMA and the CFMEU seek to ballot all employees of the employer who are presently covered by the West Wallsend Staff and Deputies Collective Agreement 2007 (‘the Agreement’) for whom APESMA and the CFMEU are bargaining agents and who would be covered by a new enterprise agreement.

[2] The relevant statutory provisions governing these applications are set out at s 443 of the Act as follows:

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.

[3] I am satisfied that the applications have been made in accordance with the requirements of s 437 of the Act and that APESMA and the CFMEU are genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The Tribunal has been advised that the employer does not oppose the making of the proposed order.

[4] In these circumstances, I have determined the matter ‘on the papers’. Given that I am satisfied that s 443(1)(a) and (b) have been complied with, FWA must make the protected action ballot orders, as sought by APESMA and the CFMEU. Accordingly, orders in the terms of the draft orders attached to both applications was published on 25 October 2011.

DEPUTY PRESIDENT

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