The Australian Workers' Union v ACI Operations Pty Ltd T/A Oi Sydney

[2016] FWC 6907

[2016] FWC 6907

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
v
ACI Operations Pty Ltd T/A OI Sydney
(B2016/932);

ACI Operations Pty Ltd T/A OI Brisbane
(B2016/933);

ACI Operations Pty Ltd T/A OI Melbourne
(B2016/934);

ACI Operations Pty Ltd T/A OI Adelaide
(B2016/935).

DEPUTY PRESIDENT LAWRENCE SYDNEY, 26 SEPTEMBER 2016

Proposed protected action ballot of employees of ACI Operations Pty Ltd - OI Sydney; Brisbane; Melbourne; Adelaide.

[1] On 29 August 2016 the Australian Workers’ Union (AWU) lodged four applications for protected action ballot orders pursuant to s.437 of the Fair Work Act 2009 (the Act). The applications were made in respect of members of the AWU who are employed by ACI Operations Pty Ltd (T/A O-I) at its glass manufacturing plants in Sydney, Brisbane, Melbourne and Adelaide.

[2] The applications and the current agreements are as follows:

Sydney:	O-I Sydney Glassworkers Workplace Agreement 2013	[AE402295]
Brisbane:	O-I Brisbane Glassworkers Workplace Agreement 2013	[AE401381]
Melbourne:	O-I Melbourne Glassworkers Workplace Agreement 2013	[AE402099]
Adelaide:	O-I Adelaide Plant Workplace Agreement (Glassworkers) 2013	[AE402314]

[3] The protected action ballot orders are sought, as a result of bargaining, to renew these agreements. This bargaining, to date has not been successful.

[4] Section 437 of the Act sets out the required content of a protected action ballot order:

“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.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed 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.

(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.”

[5] Section 443 sets out when the Commission must grant a protected action ballot order:

“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.

(2) The FWC 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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.”

[6] The proposed ballot questions are the same in each of the applications except that the Sydney application has an additional question for employees to consider. There was an obvious typographical error in the original application in this respect.

[7] On 22 September 2016, The AWU lodged an amended application in respect of Sydney, correcting this question as follows:

“Work ban of up to 12 hours on duties relating to re-sorting operations?”

[8] Pursuant to s.586 of the Act I grant this amendment.

[9] I am currently dealing with the bargaining dispute between the AWU and O-I in respect of these agreements as a result of an application by the AWU pursuant to s.240 of the Act (B2016/547). I have chaired conferences of the parties on 15 June, 22 August and 16 September 2016. Further conferences are scheduled for 4 and 12 October 2016.

[10] These proceedings satisfy me that the applicant, the AWU, has been and is genuinely trying to reach agreement with O-I.

[11] The four protected action ballot applications had been listed for hearing on 22 September. However, as a result of the conference in B2016/547 on 16 September it was agreed that O-I would not oppose the applications and they would be dealt with “on the papers”. This is reflected in my statement issued on 19 September.

[12] In summary I am satisfied that the requirements of s.443 have been met.

[13] I am also satisfied that ss.438 and 440 have been complied with.

[14] Therefore, pursuant to s.443(1) of the act, the Commission must make the protected action ballot orders sought by the AWU.

[15] Orders in respect of each of the four applications are issued together with this decision.

DEPUTY PRESIDENT

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