The Australian Workers' Union v Commonwealth of Australia (represented by and acting through the Department of Sustainability, Environment, Water, Population and Communities)

[2011] FWA 4155

[2011] FWA 4155

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
v
Commonwealth of Australia (represented by and acting through the Department of Sustainability, Environment, Water, Population and Communities)
(B2011/131)

COMMISSIONER DEEGAN CANBERRA, 30 JUNE 2011

Proposed protected action ballot by employees of the Department of Sustainability, Environment, Water, Population and Communities.

Introduction

[1] This is an application by the Australian Workers’ Union (the AWU) for a protected action ballot of its members employed by the Department of Sustainability, Environment, Water, Population and Communities (the Department) whose principal place of work is the Australian National Botanic Gardens in Canberra. The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The AWU seeks to ballot employees of the Department who are members of the AWU and who would be covered by the proposed enterprise agreement.

[3] The Department does not contest the making of the order or make any submissions on the matter.

Relevant legislative provisions

[4] In considering this matter I must apply s.443 of the Act which 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.

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.

Consideration

[5] I am satisfied that the application was made in accordance with s.437 of the Act.

[6] I am satisfied, on the basis of the unchallenged statement filed by Mr Robert O’Neil on behalf of the AWU, that the AWU has been, and is, genuinely trying to reach an agreement with the Department, the employer of the employees who are to be balloted.

Conclusion

[7] Having decided that s.443(1)(a) and (b) have been complied with, I am required to make the protected action ballot order, as sought by the AWU. My order is published separately.

COMMISSIONER

Appearances:

Mr Bruce Hogan and Mr Peter Hansen, Workplace Relations - Department of Sustainability, Environment, Water, Population and Communities, for the Respondent.

Mr Robert O’Neil,Union Official and Honorary Vice President - Australian Workers’ Union, for the Applicant.

Hearing details:

2011.

Canberra:

June, 30.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR511041>