Union of Christmas Island Workers v Phosphate Resources Limited
[2011] FWA 6794
•14 OCTOBER 2011
[2011] FWA 6794 |
|
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
<Price code A, PR515246>
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