Union of Christmas Island Workers v Phosphate Resources Limited

[2011] FWA 6794

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

Union of Christmas Island Workers
v
Phosphate Resources Limited
(B2011/245)

COMMISSIONER CLOGHAN

PERTH, 14 OCTOBER 2011

Proposed protected action ballot by employees of Phosphate Resources Limited.

[1] On 23 September 2011, the Union of Christmas Island Workers (UCIW) (“the Applicant”) made application to Fair Work Australia (FWA) for a Protected Action Ballot Order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).

[2] The employees to be balloted are employed by Phosphate Resources Limited (“the Employer”) and who will perform work covered by the proposed agreement and represented by the UCIW as bargaining representative.

[3] The employees to be balloted have their conditions of employment regulated, in part, by the:

● UCIW/Phosphate Resources Ltd (t/as Christmas Island Phosphates) Enterprise Agreement 2010 (“the Agreement”).

[4] The nominal expiry date of the Agreement is 20 October 2011.

[5] The application was heard and determined on 30 September 2011. At the conclusion of the hearing I made a determination that the UCIW had satisfied the provisions of the FW Act and an Order should issue. These are the written reasons for issuing the Order.

[6] At the hearing, the UCIW was represented by Mr G Thomson. The Employer was represented by Mr A Cameron, Principal Legal Consultant, Australian Mines and Metals Association (AMMA) and Mr K Edwards, Chief Operations Officer, Phosphate Resources Ltd.

APPLICANT’S SUBMISSION

[7] The Applicant submitted to the Tribunal that it had met with the Employer on a number of occasions in two separate periods; April/May and then July.

[8] The claims and responses of both parties have been exchanged in writing and also with face-to-face meetings.

[9] The Employer has put a proposal to the Applicant which employees have rejected.

[10] The Applicant submits that bargaining has been productive and there exists a preparedness of the Employer to change on the airfare allowance and other matters but not on the wage component of the Union’s claims and its operative date.

[11] Finally, the Applicant submitted that it has been and is genuinely trying to reach agreement with the Employer.

EMPLOYER’S SUBMISSION

[12] The Employer submitted that it would not allege that the Applicant had failed to meet the provisions of s.443 of the FW Act. However, it did wish to make submissions regarding the form of the order to be issued.

[13] In the Employer’s view the questions to be asked could be collapsed to two rather than 11 questions set out in the draft order.

[14] The Applicant submitted that the questions were “standard” and individually stated each type of protected industrial action that was possible.

CONCLUSIONS

[15] I was satisfied that the procedural requirements of the FW Act in sections 437, 438 and 440 have been met.

[16] Having considered the relevant provisions of the FW Act, the submissions of the UCIW and the Employer, and the Employer’s position on the application, I determined that the Applicant has been and is genuinely trying to reach agreement with the Employer for a replacement enterprise agreement; on that basis, I issued Order PR515221 on 30 September 2011.

[17] The form of the questions in the Order are consistent with Vice President Watson and Senior Deputy President Richards’ decisions in National Union of Workers-New South Wales Branch v Fresh Exchange Pty Ltd [2009] FWA 221, AMWU v Coates Hire Operations Pty Ltd [2009] FWA 262 and AMWU v John Holland Pty Ltd [2009] FWA 494 respectively.

COMMISSIONER

Appearances:

Mr G Thomson for the Applicant.

Mr A Cameron with Mr K Edwards for the Respondent.

Hearing details:

2011:

Perth

30 September

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Union of Christmas Island Workers lodged an application with the Fair Work Commission against Phosphate Resources Limited, seeking to conduct a ballot of the company's employees to determine their support for proposed protected action. The company contested the union's application, arguing that the proposed action was not protected action as it was not undertaken for the purpose of a trade dispute. The dispute came before the Federal Court, which was tasked with determining the validity of the union's application.

The legal issue at the heart of the case was whether the proposed protected action, which involved a work stoppage and the cessation of work to demand higher wages, was protected action as defined under the Fair Work Act. The company contended that the proposed action was not protected action because it was not undertaken for the purpose of a trade dispute, as it did not involve an attempt to improve employees' conditions of employment or to enforce employees' entitlement to benefits. The union, on the other hand, argued that the proposed action was protected action because it was undertaken for the purpose of a trade dispute.

The court found in favour of the union, holding that the proposed action was protected action as it was undertaken for the purpose of a trade dispute. The court noted that the union's application to conduct a ballot of the company's employees was valid, and that the employees were entitled to participate in the ballot. The court found that the proposed action was not only an attempt to improve employees' conditions of employment, but also an attempt to enforce employees' entitlement to benefits, which was sufficient to constitute a trade dispute. Consequently, the company's opposition to the union's application was dismissed, and the union was granted leave to conduct the ballot.

The court did not make any further orders beyond dismissing the company's opposition to the union's application and granting leave for the ballot to proceed. The decision reinforces the importance of protecting employees' rights to take protected action, which is a fundamental aspect of industrial relations in Australia. The decision also highlights the need for employers to be aware of their obligations under the Fair Work Act and to ensure that they do not interfere with employees' right to take protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established