Theofanis (Theo) Mitsios and Tanielu (Danny) Faalele v KDR Victoria Pty Ltd T/A Yarra Trams

[2015] FWC 5817

[2015] FWC 5817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Theofanis (Theo) Mitsios and Tanielu (Danny) Faalele
v
KDR Victoria Pty Ltd T/A Yarra Trams
(B2015/1211)

COMMISSIONER LEE BRISBANE, 21 AUGUST 2015

Proposed protected action ballot of employees of KDR Victoria Pty Ltd - order issued.

[1] This matter involves an application by the Mr Theofanis (Theo) Mitsios and Mr Tanielu (Danny) Faalele (the Applicants) for a protected action ballot order in relation to certain employees of KDR Victoria Pty Ltd T/A Yarra Trams (the Respondent).

[2] Section 443(1) of the Fair Work Act 2009 (the Act) states:

“(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.

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.”

[3] On 20 August 2015, my Chambers was advised by the Respondent’s representative that it would not object to the application provided that the Applicant’s agreed to provide five working days’ notice in respect of any industrial action to be taken of the type described in questions 1, 4 and 5.

[4] I listed the matter before me today. The Applicant’s supplied sworn affidavits addressing the requirements of the Act.

[5] The Applicant’s representative, Ms Kazakoff, on behalf of the Applicants, provided an undertaking on record that five working days’ notice will be given in respect of any action proposed to be taken of the type described in questions 1, 4 and 5.

[6] Having heard from the parties, I note I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent. The ballot will be conducted as a postal ballot.

[7] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR571116] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

C Karakoff sought and was granted permission to represent both Applicants.

A Millar sought and was granted permission to represent the Respondent.

Hearing details:

2015

Melbourne and Brisbane (video hearing):

August 21.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR571118>