The Australian Workers’ UnionvDepartment of Sustainability and Environment
[2012] FWA 3186
•2 MAY 2012
[2012] FWA 3186 |
|
EX-TEMPORE DECISION |
Fair Work Act 2009
s.437—Protected action
The Australian Workers’ Union
v
Department of Sustainability and Environment
(B2012/664)
State and Territory government administration | |
DEPUTY PRESIDENT SMITH | MELBOURNE, 2 MAY 2012 |
Proposed protected action ballot by employees of Department of Sustainability and Environment.
[1] The following decision, now edited, was issued during proceedings conducted on 13 April 2012.
[2] This is an application for a protected action ballot by members of The Australian Workers’ Union, AWU employed by the Department of Sustainability and Environment. The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).
[3] The applicant seeks to ballot employees covered by the Field Staff Agreement 2009 who are members of the AWU and who would be covered by the proposed enterprise agreement.
[4] 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.
[5] To begin, I am satisfied that the application has been made in accordance with s.437 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 of the employees who are to be balloted. I am satisfied, after hearing submissions from Mr Winter, on behalf of the AWU, that this is the case.
[7] The employer opposes the application on the basis that it believes it is premature and that authority hasn’t yet been given by the government for it to commence bargaining.
[8] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AWU.
DEPUTY PRESIDENT
Appearances:
C. Winter for The Australian Workers’ Union.
C. Henry on behalf of the Department of Sustainability and Environment.
Hearing details:
2012.
Sydney/Melbourne:
April, 13.
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