United Voice v Cabra Vale Ex-Active Servicemens Club Ltd and Cabra Vale Diggers at Campbelltown RSL

[2015] FWC 2169

[2015] FWC 2169

FAIR WORK COMMISSION

DECISION

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

United Voice
v
Cabra Vale Ex-Active Servicemens Club Ltd & Cabra Vale Diggers at Campbelltown RSL
(B2015/393)

DEPUTY PRESIDENT SAMS SYDNEY, 30 MARCH 2015

Proposed protected action ballot of employees of Cabra Vale Ex-Active Servicemen's Club Ltd & Cabra Vale Diggers at Campbelltown RSL.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (the ‘Act’) for a protected action ballot of employees of Cabra Vale Ex-Active Servicemens Club Limited and Cabra-Vale Diggers at Campbelltown RSL (the ‘Clubs’) who are members of the Liquor & Hospitality Division, United Voice. The application (Form F34) and a draft order were filed on 26 March 2015. The Union seeks to ballot those employees described in cl 3 of the draft orders, who are members of the Union and for whom the Union is their bargaining representative. Relevantly, the employees are covered by the Cabravale Ex Active Servicemans Club Limited and Cabravale Diggers at Campbelltown RSL Employee Enterprise Agreement 2011 - 2014, which reached its nominal expiry date on 22 November 2014.

[2] The relevant statutory provisions governing the granting of such an application are set out at s 443 of the Act 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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

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

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.’

[3] The Union’s application was supported by a signed statement of Ms Joanne King, an Industrial Officer of the Union. She deposed that she had represented Union members in enterprise agreement negotiations with the Clubs. The Clubs had issued a Notice of Employee Representational Rights, and negotiations commenced on 13 October 2014. Further meetings took place on 3 September, 1 October and 3 December 2014 and then on 11 February and 10 March 2015. Ms King stated that the Union had promptly advised the Clubs of resolutions passed at off duty meetings in respect to terms and conditions within the proposed enterprise agreement, which had been ongoing between 13 August 2014 and 10 March 2015. The members had indicated on 23 and 24 March 2015 that they wished to engage in protected industrial action. The Clubs were notified of this resolution by way of correspondence dated 25 March 2015. Ms King identified the issues on which the parties had been unable to reach agreement as being guaranteed pay rises for all employees over the nominal term of the proposed agreement, increases to the value of meal vouchers and the provision of a ten minute break for employees working shifts of four hours or greater. Ms King denied that the Union was engaged in pattern bargaining.

[4] The Clubs advised my chambers on 26 March 2015 that they did not oppose the making of the order. The matter has therefore been determined ‘on the papers’.

[5] I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Given that I am satisfied that ss 441(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order sought by the Union and the application is granted. An order in terms of the draft order will be published contemporaneously with this decision. It shall take effect on and from 30 March 2015.

DEPUTY PRESIDENT

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