The Australian Workers' Union v Transfield Services (Australia) Pty Ltd

[2015] FWC 4260

[2015] FWC 4260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Transfield Services (Australia) Pty Ltd
(B2015/676)

COMMISSIONER ROE MELBOURNE, 24 JUNE 2015

Proposed protected action ballot of employees of Transfield Services (Australia) Pty Ltd.

[1] This is an application for a protected action ballot order by members of the Australian Workers’ Union (AWU) employed by Transfield Services (Australia) Pty Ltd (the employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the AWU who would be covered by the proposed enterprise agreement, except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day the ballot order is made, unless such an employee has made a conditional termination of that instrument.

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

“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.”

[4] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that there is no current Agreement which has not reached its nominal expiry date. s.438 of the Act is satisfied.

[5] I am satisfied that the employer received the Application as required by s.440 of the Act. The employer was advised of the hearing of the Application. The employer advised my Associate in writing that they did not oppose the Application. The employer acknowledged that he had received the email from FWC with the notice of listing and had been served with a copy of the application and the supporting documents. Having considered the material provided by the AWU, I am satisfied that the AWU complied with s.440 of the Act.

[6] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. I received a statement from Mr Bell on behalf of the AWU which demonstrates that bargaining has actively proceeded. I am satisfied that the AWU is genuinely trying to reach agreement with the employer on behalf of the employees who are to be balloted.

[7] I am satisfied that the proposed orders meet the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of s.443(3)(d). The draft orders therefore adequately describes the group of employees to be balloted as required by s.443(3)(b). The AEC will be the ballot agent.

[8] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AWU.

COMMISSIONER

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