Transport Workers' Union of Australia

[2010] FWA 9809

[2010] FWA 9809

FAIR WORK AUSTRALIA

DECISION

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

Transport Workers' Union of Australia
(B2010/3729)

COMMISSIONER LEWIN MELBOURNE, 17 DECEMBER 2010

Proposed protected action ballot by employees of Murray Goulburn Co-Operative Co. Limited.

[1] This Decision concerns an application by the Transport Workers’ Union of Australia (TWU) for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The application was lodged in Fair Work Australia on 15 December 2010.

[2] Pursuant to s.441(1) of the Act, Fair Work Australia must determine an application under s.437 of the act within 2 working days after the application is made. On 16 December 2010 the application was listed for hearing by video link between Melbourne and Sydney at 11.00 am on 17 December 2010.

[3] Mr Michael Burns of the TWU appeared from Sydney by video link. Mr John Berger, Mr Luke McCrone and Mr Michael O’Brien appeared in Melbourne for the TWU. Mr David McLaughlin, a solicitor, appeared, with permission, in Melbourne on behalf of Murray Goulburn Co-Operative Company Limited (MGC).

[4] During the Hearing, the TWU outlined the history of the proposal of an enterprise agreement to MGC as bargaining agent for its members employed by the company and the history of negotiations between the TWU as bargaining agent for its members and MGC since August 2010.

[5] The Hearing was adjourned around 11.30 am to allow Mr McLaughlin time to seek further instructions and finalise the position of MGC in relation to the application.

[6] A telephone Hearing was conducted at 1.30 pm on 17 December 2010. Mr Andrew Douglas, a solicitor, represented MGC during the telephone Hearing. Mr Douglas informed the Tribunal that MGC did not oppose the application and did not make any submissions on behalf of MGC in relation to the application.

[7] Section 437(1) of the Act sets out who may apply for a protected action ballot order, and includes “a bargaining representative of an employee who will be covered by a proposed enterprise agreement, ...” I am satisfied that the TWU is competent to make the application pursuant to s.437 of the Act.

[8] Section 440 of the Act sets out prescribed notice requirements for applicants in relation to protected action ballot orders, and provides that “within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, ...” I am satisfied that the notice requirements have been met.

[9] On what is before me, I am satisfied that the TWU was “has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted” pursuant to s.443 of the Act.

[10] Accordingly, an order for protected action ballot will issue.

COMMISSIONER

Appearances:

Mr Michael Burns, Mr John Berger, Mr Luke McCrone and Mr Michael O’Brien for the Transport Workers’ Union of Australia

Mr David McLaughlin and Mr Andrew Douglas, solicitors, appearing for Murray Goulburn Co-Operative Company Limited

Hearing details:

2010

December 17

Melbourne-Sydney

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<Price code A, PR505245>