Transport Workers' Union of Australia v SITA Australia Pty Ltd

[2013] FWC 8276

[2013] FWC 8276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
SITA Australia Pty Ltd
(B2013/1338)

COMMISSIONER DEEGAN CANBERRA, 24 OCTOBER 2013

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

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Transport Workers’ Union of Australia (TWU) for a protected action ballot order in relation to its members employed by SITA Australia Pty Ltd (the respondent). The application was made on 18 October 2013.

[2] According to the application the TWU sought a ballot of members of the TWU employed by the respondent based at the employer’s yard at 41 Alderson Place Hume ACT 2620. A statement of Klaus Pinkas, the ACT Sub-branch Secretary of the TWU was filed in support of the application.

[3] Mr Pinkas stated that he had been attempting to negotiate an enterprise agreement on behalf of TWU members employed by the respondent at 41 Alderson Place, Hume. He further claimed that he had met with the respondent for this purpose on several occasions including 27 June 2013, 21 August 2013, 13 September 2013 and 14 October 2013. He stated that there were outstanding concerns in relation to a number of clauses in the proposed agreement. He noted that the TWU were genuinely trying to reach agreement.

[4] By email on 21 October 2013 Mr Jon Dyster, General Manager Human Resources, for the respondent, raised jurisdictional objections to the making of the ballot order as follows:

• The TWU members at the respondent’s yard at 41 Alderson Place Hume were currently covered by an agreement approved on 15 May 2013 with an expiry date of 30 April 2017;



• Mr Pinkas had not been attempting to negotiate a collective agreement for TWU members at 41 Alderson Place.

[5] Mr Dyster noted that the TWU had been negotiating a proposed greenfields agreement with the respondent to cover employees that will be employed at 11 Alderson Place Hume from 29 October 2013. He stated that there were currently no SITA employees at 11 Alderson Place.

[6] Mr Dyster noted that SITA objected to the making of the ballot order as

• Section 417(1)(a) of the Act prohibited the taking of industrial action before the nominal expiry date of an existing enterprise agreement has passed and



• Section 413(2) of the Act provides that industrial action must not relate to a greenfields agreement.

[7] As a consequence of the respondent’s objection the application was listed for hearing on 22 October 2013.

[8] At the hearing of the matter, the TWU representative outlined the background to the application noting that the respondent had successfully competed for a tender for a contract with the ACT Government and would commence work under that contract on 29 October 2013. The proposed agreement was to cover employees of the respondent employed for the purposes of that work. In response to the respondent’s objections it was put that there was a typographical error in the application and the draft order and that the order was intended to ballot TWU members employed by the respondent at 11 Alderson Place Hume, not those at 41 Alderson Place, Hume.

[9] It was also put by the TWU that the proposed agreement being negotiated by Mr Pinkas did not meet the requirements of a greenfields agreement set out in s. 172(2)(b) of the Act as the business of the respondent was not a genuine new enterprise. In this respect, the TWU relied on the decision of the Full Bench of the Australian Industrial Relations Commission in Patrick Cargo Pty Ltd v Transport Workers’ Union of Australia (2002) 115 IR 443.

[10] The TWU also argued that the respondent did have employees at 11 Alderson Place Hume as that yard was currently occupied by the current business contracted to the ACT Government for domestic waste collection and that the employees of that business had been offered, and had accepted, employment with SITA. A standard form letter of offer that had been distributed to those employees by the respondent was tendered. The TWU claimed that as a result of the offer made by SITA and the acceptance of that offer by employees of the current contractor, those employees were employees of SITA. Therefore, there were SITA employees at 11 Alderson Place who were members of the TWU and attempting to negotiate a proposed agreement with SITA.

[11] The TWU representative was asked how these people could be employees of the respondent as at the date of the application when the offer made was for employment commencing on 29 October 2013. It was argued that the mere fact of the offer and acceptance concluded the employment contract. The TWU argued that each person who accepted the offer of future employment was an employee from the date of the acceptance. This argument was contested by the respondent.

[12] The Commission indicated it could not accept the position of the TWU without further, more persuasive, argument. It was proposed that the matter be relisted at a later date to allow further argument on the point by the TWU and to enable the respondent to properly put a considered response. It was clear that the respondent had not been put on notice of the TWU argument given the form of the application (in particular the erroneous address of the workplace of the employees to be balloted).

[13] The representative for the TWU declined the offer of an adjournment and indicated that the argument that there were currently employees of the respondent who would be covered by the proposed agreement was not pressed.

[14] Section 437 of the Act relevantly provides:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

[15] Further, s.443(1) of the Act states:

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.

[16] Only a bargaining representative of an employee may apply under s.437 of the Act for a protected action ballot order. As the TWU did not press its argument that there are currently employees of the respondent who will be covered by the proposed agreement, I am unable to accept that the TWU is a bargaining representative for an employee who will be covered by the proposed enterprise agreement, as required by the Act. On the basis that the application was not validly made under s.437 of the Act, I dismiss the application.

[17] Given my finding that the application was not validly made, it was not necessary to deal with the question whether the proposed agreement was, as claimed by the respondent but denied by the TWU, a greenfields agreement.

[18] An order [PR543686] dismissing the application is published separately.

Appearances:

Mr C. O’Callaghan with Mr K. Pinkas, for the Transport Workers’ Union of Australia.

Mr J. Dyster with Mr J. Stewart, for the Respondent.

Hearing details:

2013.

Canberra:

October 22.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR543605>