Transport Workers' Union of Australia-New South Wales Branch v Hanson Construction Materials Pty Ltd

[2011] FWA 7915

[2011] FWA 7915

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia-New South Wales Branch
v
Hanson Construction Materials Pty Ltd
(B2011/3463)

COMMISSIONER DEEGAN CANBERRA, 16 NOVEMBER 2011

Proposed protected action ballot by employees of Hanson Construction Materials Pty Ltd.

[1] This is an application, filed on 14 November 2011, for a protected action ballot of members of the Transport Workers’ Union of Australia (Union) employed by the Hanson Constructions Pty Ltd (Employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[2] The Employer has advised the Tribunal that it does not intend to oppose the application. Accordingly, I have determined the matter on the basis of the documents filed.

[3] The Union seeks to ballot specified employees of the Employer. These are the employees who will be covered by the proposed enterprise agreement and whom are represented by the Union, as a bargaining representative, in the negotiations for the enterprise agreement.

[4] The relevant section of the Act, section 443, provides as follows:

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.

[5] I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] In support of the application the Union filed a statement affirmed by Mr Klaus Pinkas on 15 November 2011. It was Mr Pinkas’s evidence that the Union has been, and is, genuinely trying to reach agreement with the Employer on the terms of a new agreement.

[7] For the purposes of s.443(1)(b) of the Act I am satisfied, on the basis of the unchallenged evidence brought by the Union, that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[8] As s.443(1)(a) and (b) have been complied with I must make a protected action ballot order, as sought by the Union. My Order [PR516783] is issued separately.

COMMISSIONER

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<Price code A, PR516782>