Transport Workers' Union of Australia v SITA Australia Pty Ltd T/A SITA Environmental Solutions

[2011] FWA 6078

[2011] FWA 6078

FAIR WORK AUSTRALIA

DECISION

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

Transport Workers' Union of Australia
v
SITA Australia Pty Ltd T/A SITA Environmental Solutions
(B2011/212)

COMMISSIONER ASBURY BRISBANE, 8 SEPTEMBER 2011

Proposed protected action ballot by employees of SITA Australia at Lower Nudgee, Gold Coast and Rocklea - Request by Employer for amendment of questions refused - Application granted.

[1] This decision concerns an application by the Transport Workers Union of Australia (TWU) pursuant to s. 437 of the Fair Work Act 2009 (the Act) for a protected action ballot Order. The application was made on Friday 2 September 2011 at 3.32 pm, and relates to employees who are members of the Union employed by SITA Australia Pty Ltd at Lower Nudgee, Gold Coast and Rocklea.

[2] Directions were issued requiring the Employer to provide a response in writing by 12.00 pm on Monday 5 September 2010, advising whether there was an objection to the Order in the terms sought, and whether it was seeking to have its objections heard by Fair Work Australia. The TWU was directed to file an outline of submissions and statements of evidence from any witnesses in support of the application by 4.00 pm on Monday 5 September 2011. The Employer was directed to file an outline of submissions and statements of evidence from any witnesses by 12.00 pm on Tuesday 6 September, in the event it elected to object to the making of the Order.

[3] The Directions also indicated that if there was an objection to the Order being made, the matter would be heard at 5.00 pm on Tuesday 6 September and if there was no objection the application would be determined on the basis of material on the file.

[4] The TWU filed its material in line with the Directions. The Employer forwarded correspondence on 6 September 2011 stating that it did not object to the Order being made, and would not seek to have an objection heard. The Employer went on to state that it wished to have noted for the record that while the TWU application may technically meet the requirements of the Act, it was made prematurely. Further, the Employer requested that the TWU amend its application to add a further preliminary question, which asked whether employees supported the taking of any form of protected industrial action against the employer. The basis upon which the amendment is sought, is the number and complexity of the questions.

[5] The TWU responded to that correspondence, rejecting the contention that the application for a protected action ballot order was made prematurely, and declining to amend its application by including the additional preliminary question sought by the Employer.

[6] The employer subsequently confirmed that it did not wish to be heard by Fair Work Australia in relation to the contents of its letter and relied on those contents.

[7] I am satisfied, on the basis of the submissions filed by the TWU, and the Statement of Mr Adam Michael Carter, Legal Officer for the TWU, that the enterprise agreements covering the employees have reached their nominal expiry date, as required by s.438 of the Act. I am also satisfied that the relevant requirements of s.443 and s.437 of the Act have been met. Accordingly, pursuant to s.437, the Order must be made.

[8] I am not satisfied that the form of the questions in the draft order filed by the TWU should be amended by inserting an additional preliminary question. The questions set out in the draft order are clear and unambiguous, and are of a type commonly specified in protected action ballot orders. I can see no basis for the addition of a question in terms sought by the Employer. I am also of the view that it would not be appropriate to take the step of amending the questions in the manner sought by the employer on the basis of correspondence.

[9] An Order will issue with this decision containing the questions set out in the draft order filed by the TWU.

COMMISSIONER

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