The Australian Workers’ Union

[2014] FWC 3292

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
(B2014/771)

COMMISSIONER LEWIN

MELBOURNE, 16 MAY 2014

Proposed protected action ballot by employees of Cheetham Salt Limited.

[1] On 16 May 2014, Australian Workers’ Union (AWU) made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The AWU sought to ballot employees of Cheetham Salt Limited (Cheetham) who are CEPU members and who would be covered by a proposed Enterprise Agreement.

[2] I have decided to issue a protected action ballot order. 1 The reasons for the issuing of the Order are as follows:

Statutory Provisions

[3] The relevant statutory provisions are set out below:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) 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 the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[4] I am satisfied that the AWU is a bargaining representative of employees who will be covered by a proposed Enterprise Agreement, and therefore have standing to make the application under s.437(1) of the Act. This is not disputed by Cheetham. It is also uncontested by Cheetham that the application specifies the group of employees to be balloted, 2 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.3

[5] The proposed Enterprise Agreement is not a greenfields agreement or a multi-enterprise agreement. 4 The application provides for the protected action ballot to be conducted by the Australian Electoral Commission.5

[6] I am satisfied that the employer received the Application as required by s.440 of the Act.

[7] Supplementary material was provided in the form of an affidavit by the AWU that contains detailed information describing the AWU’s attempts to genuinely reach Agreement with Cheetham on behalf of the employees who are to be balloted. I am satisfied that the AWU are genuinely trying to reach agreement with AWU accordingly.

[8] On 16 May 2014 my chambers received a copy of an email sent by Mr David Seymour, General Manager Operations with Cheetham to Mr Patrick Reilly of the AWU informing the that the Employer does not oppose the application.

Conclusion

[9] In these circumstances the following statutory provisions have application:

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.

[10] Having regard to all of the above, I must make an Order under s.443 of the Act. I will do so accordingly.

COMMISSIONER

1 PR 544074.

2 S437(3)(a) Fair Work Act 2009.

3 S437(3)(b) Fair Work Act 2009.

4 S437(2) Fair Work Act 2009.

5 S.441 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

The Australian Workers’ Union brought proceedings against Cheetham Salt Limited in the Fair Work Commission, seeking authorisation for a protected action ballot amongst the employees of the respondent. The Union aimed to conduct a ballot to determine whether the employees wished to engage in protected industrial action. The dispute centred on the eligibility of the employees to participate in the proposed industrial action, including whether they were protected by the relevant provisions of the Fair Work Act 2009. The Fair Work Commission was required to determine the eligibility of the employees to participate in the proposed industrial action and the appropriateness of the ballot process.

The Commission examined the eligibility of the employees to engage in protected action under the Fair Work Act. This involved assessing whether the employees were protected employees and whether the proposed action constituted protected action. The Commission also needed to consider whether the proposed ballot process complied with the requirements of the Act. In making its determination, the Commission evaluated the evidence presented by both parties and the legal framework governing industrial action in Australia.

After considering the submissions and evidence, the Commission determined that the employees were eligible to participate in the proposed industrial action and that the ballot process was appropriate. The Commission found that the employees were protected employees and that the proposed action constituted protected action. The Commission also concluded that the proposed ballot process complied with the requirements of the Act. Accordingly, the Commission authorised the proposed protected action ballot, enabling the employees to determine whether they wished to engage in industrial action.

The Commission's decision authorised the proposed protected action ballot by the employees of Cheetham Salt Limited. The employees could now proceed with the ballot to determine whether they wished to engage in industrial action. The Commission's decision provided clarity and certainty to both parties, enabling them to move forward with the industrial action process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established