Transport Workers' Union of Australia v Hanson Construction Materials Pty Ltd

[2011] FWA 4281

[2011] FWA 4281

FAIR WORK AUSTRALIA

DECISION

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

Transport Workers' Union of Australia
v
Hanson Construction Materials Pty Ltd
(B2011/3087)

COMMISSIONER CAMBRIDGE SYDNEY, 6 JULY 2011

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

[1] On 4 July 2011, the Transport Workers’ Union of Australia (TWU), made an application for a protected action ballot order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the TWU who are employees of Hanson Construction Materials Pty Ltd, (the employer) based at the employer’s yards at Wallgrove, Bass Point, Prestons, Blackwattle Bay Depot and Penrith, to whom the Hanson Metro Tippers Agreement 2009 presently applies.

[2] The application seeks a ballot of employees of the employer who are members of the TWU and who would be covered by a proposed enterprise agreement. A Statement of Mr Glenn Nightingale dated 5 July 2011 (the Statement) was filed in addition to the application on 6 July 2011. In summary, the Statement provided information about events involving attempts made by the TWU to reach agreement with the employers on the terms of a proposed enterprise agreement.

[3] The application was listed for Hearing before Fair Work Australia (FWA) on 6 July 2011, at which time the following appearances were recorded:

Mr O Fagir appeared for the TWU.

[4] There was no appearance on behalf of the employer. FWA received a communication from Mr Charlie Stoneman, Regional Logistics Manager from Hanson Construction Materials Pty Ltd, dated 5 July 2011. Mr Stoneman advised that the application for a protected action ballot order was not being opposed.

[5] In view of the materials filed and the submissions made by Mr Fagir during the Hearing, FWA provided an extemporary determination of the application and this Decision is issued as confirmation of that determination.

[6] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“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.

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.”

[7] In this instance I am satisfied that the application has been made in accordance with section 437 of the Act. In particular, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[8] Therefore, pursuant to subsection 443(1) of the Act, FWA must make the protected action ballot order sought by the TWU. Accordingly an Order [PR511237] is issued separately.

COMMISSIONER

Appearances:

Mr O Fagir appeared for the TWU.

Hearing details:

Sydney, 6 July 2011.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR511238>