Transport Workers' Union of Australia v Cleary Bros (Bombo) Pty Ltd t/a Cleary Bros

[2013] FWC 689

[2013] FWC 689

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Cleary Bros (Bombo) Pty Ltd t/a Cleary Bros
(B2013/574)

DEPUTY PRESIDENT SAMS SYDNEY, 31 JANUARY 2013

Application for a proposed protected action ballot of employees employed by Cleary Bros (Bombo) Pty Ltd - amended application - consent - application granted - order made.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’), for a protected action ballot of members of the Transport Workers’ Union of Australia (the ‘Union’) employed by Cleary Bros (Bombo) Pty Ltd (the ‘respondent’) at a number of locations on the South Coast of New South Wales. The application (Form 34) and a draft order were filed on 23 January 2013. The Union seeks to ballot those employees specified in clause 5 of the draft order, for whom the Union is a bargaining agent and who would be covered by a proposed enterprise agreement.

[2] The relevant statutory provisions governing this application are set out at s 443 of the Act 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.

[3] I am 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.

[4] On 29 January 2013, Ms L Sullivan, for the respondent, proposed that the draft order be amended so that the scope of the order be limited to employees of the respondent’s Concrete Division, who are members of the Union, and who would be subject to the proposed enterprise agreement. In doing so, she noted that the employees of the Transport Division of the respondent are currently negotiating a separate enterprise agreement. She also proposed certain amendments to the ballot time to ensure compliance with the requirements of the Act. Mr C O’Callaghan, from the Union, provided the Fair Work Commission (‘the Commission’) with written confirmation of the Union’s consent to amending the draft order as proposed.

[5] In addition, the respondent confirmed that it did not oppose the making of the amended order and that it did not oppose the Commission determining the matter without a hearing. I accepted that course of action and accordingly, I have determined the matter ‘on the papers’.

[6] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected ballot order, as sought by the Union and the application is granted. An order in terms of the amended draft order will be published contemporaneously with this decision. It shall take effect on and from 31 January 2013.

DEPUTY PRESIDENT

<Price code A, PR533655>