The Australian Workers' Union v Australian National Hotels Pty. Limited T/A Wrest Point

[2012] FWA 7206

[2012] FWA 7206

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Australian National Hotels Pty. Limited T/A Wrest Point
(B2012/1502)

COMMISSIONER DEEGAN CANBERRA, 22 AUGUST 2012

Proposed protected action ballot of employees of Australian National Hotels Pty. Ltd T/A Wrest Point.

[1] This decision relates to an application made by the Australian Workers’ Union (the union) on 20 August 2012, for a protected action ballot of employees of Australian National Hotels Pty. Limited T/A Wrest Point (the employer). The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The employer has advised the Tribunal that it does not intend to oppose the application. Accordingly I have determined the matter on the basis of the documentation filedby the union.

[3] The relevant employees of the employer are currently covered by the Wrest Point Hotel Casino Maintenance Enterprise Agreement 2006 [AG874203], which had a nominal expiry date of 4 March 2012. Negotiations are currently taking place in relation to a new enterprise agreement.

[4] The union seeks to ballot employees who are members of the union, employees of the employer who will be covered by the proposed enterprise agreement and who the union represents as a bargaining representative.

[5] The relevant section of the Act, s.443, provides 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.

[6] I am satisfied that the application has been made in accordance with s.437 of the Act.

[7] In support of the application, the union filed a statement that was provided by Robert Flanagan, Assistant Branch Secretary, from the union.

[8] According to Mr Flanagan the union, in collaboration with the Construction, Forestry, Mining and Energy Union, has participated in negotiations for the new agreement on approximately 7 occasions between 12 June 2012 and 9 August 2012. Mr Flanagan stated that despite bargaining in good faith, the union has been unable to reach an agreement with the employer.

[9] For the purposes of s.443(1)(b) of the Act, I am satisfied that the applicant has been and is, genuinely trying to reach an agreement with the employer of the employees whom are to balloted.

[10] As ss.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. That Order [PR528222] is issued separately.

COMMISSIONER

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<Price code A, PR528221>