The Australian Workers’ Union

[2011] FWA 518

[2011] FWA 518

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
(B2011/2517)

COMMISSIONER CONNOR WOLLONGONG, 25 JANUARY 2011

Proposed protected action ballot by employees of Hanson Construction Materials Pty Ltd.

[1] On Tuesday, 18 January, 2011 the Australian Workers’ Union lodged an application under s.437 of the federal Fair Work Act 2009 (the Act) for an order for a protected action ballot for its members employed by Hanson Construction Materials Pty Limited at its Bass Point quarry site. The matter has been allocated to me as part of my regional commitments for the Illawarra region and I convened proceedings with respect to it on Tuesday, 25 January, 2011 in the premises which Fair Work Australia now shares with the New South Wales Industrial Relations Commission at 90 Crown Street, Wollongong. In the proceedings Mr Gillespie represented the AWU and Mr Clarkson represented Hanson.

[2] In that respect s.443 of the Act reads as follows:

“(1)FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under s.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 group 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 443(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.

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] It is a requirement of s.441 that applications for protected action ballot orders be dealt with expeditiously. It is also a requirement of s.441 that I be satisfied that within 24 hours after making an application for a protected action ballot order, a copy of the application is provided to the employer. Mr Clarkson confirmed that was the position.

[4] I am satisfied that the application for a protected action ballot before me complies with the requirements of ss.437 and 440. The applicant and the employees have been identified in the draft order provided to me by the AWU. The protected action ballot is to close no later than 20 working days from the date of the order, ie. Monday, 14 February, 2011. The question to be put in the ballot is whether or nor not, for the purpose of supporting or advancing claims made in respect of current negotiations for a proposed enterprise agreement, a range of specified industrial action, work stoppages of varying duration, an indefinite strike or indefinite or periodic overtime bans. The ballot is to be conducted by the Australian Electoral Commission as the ballot agent.

[5] Hanson does not oppose the orders being made according to the draft order provided to me. I make the protected action order in those terms which I will issue separately.

COMMISSIONER

Appearances:

Andy Gillespie for the Australian Workers Union

Anthony Clarkson for Hanson Construction Materials Pty Limited

2011

Wollongong

January, 25

<Price code A, PR506215>