Transport Workers' Union of Australia-New South Wales Branch

[2015] FWC 5329

[2015] FWC 5329

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia-New South Wales Branch
(B2015/1029)

DEPUTY PRESIDENT SAMS SYDNEY, 4 AUGUST 2015

Proposed protected action ballot of employees of Dyno Nobel Asia Pacific Pty Ltd.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’), for a protected action ballot of employees of Dyno Nobel Asia Pacific Pty Ltd (the ‘respondent’) employed at its Warkworth plant and at its Wilpinjong and Wambo mine operations, and who are members of the Transport Workers’ Union of Australia-New South Wales Branch (the ‘Union’). The application (Form F34) and a draft order were filed on 30 July 2015. Relevantly, the employees are covered by the Dyno Nobel Hunter Valley Enterprise Agreement 2011 [AE891319], which passed its nominal expiry date on 30 November 2014.

[2] The relevant statutory provisions governing the granting of such an application are set out at s 443 of the Act as follows:

443 When the FWC must make a protected action ballot order

(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.

[3] The Union’s application was supported by a statement of Mr Grant Rodger, an official of the Union. Mr Rodger set out his involvement in a team conducting negotiations for an enterprise agreement for employees, which also included another official of the Union, Mr Ray Fitzpatrick and five Union delegates. Mr Rodgers identified six dates between September 2014 and June 2015 on which the parties had met in relation to bargaining. However, he listed seven issues on which agreement could not be reached between the parties. Mr Rodgers deposed that the Union had been genuinely trying to reach an agreement, but this had not been successful.

[4] The matter was listed for hearing on 5 August 2015. However, after a representative of the respondent advised my chambers that it does not oppose the making of the orders sought by the Union, the hearing was cancelled and the matter has been determined ‘on the papers’.

[5] The Commission is satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Given that I am satisfied that ss 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order sought by the Union. Accordingly, the application is granted. An order reflecting terms of the draft order will be published contemporaneously with this decision. It shall take effect on and from 4 August 2015.

DEPUTY PRESIDENT

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