Transport Workers' Union of Australia v Remondis Australia Pty Ltd

[2017] FWC 3408

[2017] FWC 3408

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Remondis Australia Pty Ltd
(B2017/518)

COMMISSIONER CAMBRIDGE SYDNEY, 27 JUNE 2017

Proposed protected action ballot of employees of Remondis Australia Pty Ltd.

[1] On 23 June 2017, 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 Remondis Australia Pty Ltd (the employer) whose employment is to be regulated by a proposed agreement to replace the Remondis Australia Pty Ltd Waste Management, Hunter Area Domestic and Commercial Enterprise Agreement 2012- 2015.

[2] The application seeks a ballot of employees of the employer who are members of the TWU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statement of Daryll Elliott (the Statement) dated 21 June 2017. In summary, the Statement provided information about events involving attempts made by the TWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 26 June 2017, advising that the employer opposed the application for a protected action ballot Order. The application was listed for Hearing before the Commission in Sydney on 27 June 2017, at which time the following appearances were recorded:

Mr H Lau appeared for the TWU;

Mr M Ratcliffe and Mr A Tsui appeared for Remondis Australia Pty Ltd.

[4] 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 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.

(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.

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.”

[5] In this instance, the employer opposed the application upon the basis that it was not made in accordance with Rule 31 (1) (b) of the Fair Commission Rules 2013. The relevant part of Rule 31 is in the following terms:

“31 Application for a protected action ballot order

(1) An application under section 437 of the Act for a protected action ballot order must be accompanied by:

(a) a draft order in the terms sought by the applicant; and

(b) a statutory declaration by the applicant setting out the basis on which the Commission can be satisfied that the requirements of paragraph 443(1)(b) of the Act have been met.”

[6] The application included a signed and dated statement made by an official of the TWU, Mr Daryl Elliott, which went to circumstances that were said to satisfy the requirements of paragraph 443 (1) (b) of the Act. The statement of Mr Elliott was not provided by way of a statutory declaration in the format prescribed by Form F34B.

[7] At the Hearing held today to deal with the employer’s opposition to the application, it has been confirmed that the factual circumstances as set out in the statement provided by Mr Elliott were not contested by the employer. Consequently the employer’s opposition to the application has been confirmed to be confined to the incorrect format by which information was provided in the form of a statement of Mr Elliott rather than by way of a statutory declaration in the Form F34B format.

[8] Having considered that the application has been opposed on the basis of what might be described as a technical irregularity in the form or manner in which the application was made, the Commission has determined to exercise the discretion provided by s. 586 (b) of the Act. Accordingly, the Commission waives any irregularity that may have arisen in the form or manner in which the application was made in this instance. Frankly, it is highly regrettable that the employer would oppose the application, particularly after Mr Elliott subsequently provided a Form F34B statutory declaration after the TWU had been alerted to the technical irregularity.

[9] Consequently, I am satisfied that the application has been made in accordance with section 437 of the Act. Further, 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.

[10] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot Order. The Order shall be made in the terms as broadly sought by the TWU. Accordingly an Order [PR594075] is issued separately.

COMMISSIONER

Appearances:

Mr H Lau appearedfor the Transport Workers’ Union of Australia.

Mr M Ratcliffe and Mr A Tsui appearedfor Remondis Australia Pty Ltd.

Hearing details:

2017.

Sydney:

June, 27

Printed by authority of the Commonwealth Government Printer

<Price code A, PR594074>