Transport Workers' Union of Australia-Victorian/Tasmanian Branch

[2013] FWC 8611

[2013] FWC 8611

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia-Victorian/Tasmanian Branch
(B2013/1374)

COMMISSIONER LEWIN MELBOURNE, 31 OCTOBER 2013

Proposed protected action ballot by employees of Tenix Australia Pty Ltd.

Introduction

[1] On 29 October 2013, the Transport Workers’ Union of Australia- Victorian/Tasmanian Branch (TWU) made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The TWU sought to ballot employees of Tenix Australia Pty Ltd (Tenix) who are TWU members and who would be covered by a proposed Enterprise Agreement. Included in the TWU’s application is a Draft Order.

Hearing

[2] The application was heard on Thursday, 31 October 2013. At the hearing the parties agreed to an Order being issued provided that the TWU amended the Order, in one respect to correct the identity of the employer, and in the other to provide that the date by which voting in the protected action ballot is to close is 25 working days from the date of the Order.

[3] Supplementary material was provided by the TWU prior to the hearing that contains detailed information describing the TWU’s attempts to genuinely reach an Enterprise Agreement with Tenix on behalf of the employees who are to be balloted. 1 The supplementary material is not disputed by Tenix. I am satisfied that the TWU are genuinely trying to reach agreement with Tenix accordingly.

[4] I have decided to issue a protected action ballot order. 2 The reasons for the issuing of the Order are as follows:

Statutory Provisions

[5] The relevant statutory provisions are set out below:

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.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) 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 applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[6] I am satisfied that the TWU is a bargaining representative of employees who will be covered by a proposed Enterprise Agreement, and therefore have standing to make the Application under s.437(1) of the Act. This is not disputed by Tenix. It is also uncontested by Tenix that the application specifies the group of employees to be balloted, 3 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.4

[7] The proposed Enterprise Agreement is not a greenfields agreement or a multi-enterprise agreement. 5 The application provides for the protected action ballot to be conducted by the Australian Electoral Commission.6

[8] I am satisfied that the employer received the application as required by s.440 of the Act.

Form of Order

[9] The duly amended form of the Order proposed by the TWU is set out below:

1. Pursuant to s.443 of the Fair Work Act 2009 (the Act) and an application by the Transport Workers Union of Australia (TWUA) Fair Work Australia orders:

1. Protected Action Ballot to be held

The Transport Workers Union of Australia is to hold a Protected Action Ballot of employees of Tenix Australia Pty Ltd described in clause 2 of this order.

2. NAME OF PERSON AUTHORISED TO CONDUCT THE BALLOT

The ballot is to be conducted by the Australian Electoral Commission.

3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED

In accordance with s.437(5) of the Act, the employees to be balloted are those who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the applicant for this protected action ballot order.

4. DATE BY WHICH BALLOT CLOSES

The date by which voting in the protected action ballot is to close is 25 working days from the date of this Order.

5. QUESTIONS

The questions to be put to voters in the ballot are:

In support of reaching an Enterprise Agreement with Tenix Australia Pty Ltddo you authorise protected industrial action against your employer, separately, concurrently and/or consecutively, in the form of:

1. Overtime Bans - employees will refuse to work outside of ordinary hours,	Yes  / No
2. Work bans - Employees will refuse to perform part of their usual duties excluding any duties involving food safety obligations on employees or other regulatory requirements.	Yes /  No
3. Four Hour Stoppages - Employees will cease the performance of all work for four hour stoppages. The action may be organised and/or engaged in on consecutive occasions.	Yes / No
4. Twenty Four Hour Stoppages - Employees will cease the performance of all work for twenty four hour stoppages. This action may be organised and/or engaged in on consecutive occasions.	Yes / No
5. Indefinite Stoppage - Employees will cease work for an indefinite period.	Yes / No

Conclusion

[10] S.443 of the Act prescribes when the Commission must make a protected action ballot order as follows:

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.

[11] Having regard to all of the above, I must make an Order under s.443 of the Act. I will do so accordingly.

Appearances:

Mr M Wirrik and Mr G Ingantino for the Applicant

Mr D North and Mr I Carter for Tenix Australia Pty Ltd

Hearing details:

Before Commissioner Lewin

2013

Melbourne:

31 October.

 1   Exhibit A1.

 2   PR 536551.

 3 S437(3)(a) Fair Work Act 2009.

 4 S437(3)(b) Fair Work Act 2009.

 5 S437(2) Fair Work Act 2009.

 6 S.441 Fair Work Act 2009.

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<Price code C, PR544057>