United Workers' Union v Martin Brower Pty Ltd

[2021] FWC 4597

[2021] FWC 4597

FAIR WORK COMMISSION

DECISION

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

United Workers' Union
v
Martin Brower Pty Ltd
(B2021/599)

COMMISSIONER CAMBRIDGE SYDNEY, 2 AUGUST 2021

Proposed protected action ballot of employees of Martin Brower Pty Ltd.

[1] On 27 July 2021, the United Workers' Union (UWU), made an application for a Protected Action Ballot Order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the UWU who are employees of Martin Brower Pty Ltd (the employer) whose employment is to be regulated by a proposed agreement to replace the Martin Brower Australia Pty Ltd and National Union of Workers – Sydney Warehouse Enterprise Agreement 2018.

[2] The application seeks a ballot of employees of the employer who are members of the United Workers' Union (UWU), who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Pareen Minhas (the Statutory Declaration) dated 27 July 2021. In summary, the Statement provided information about events involving attempts made by the UWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 28 July 2021, advising that the employer opposed the application for a Protected Action Ballot Order, which required the matter to be listed for proceedings. Consequently, the application was listed for Mention and Directions by Telephone before the Commission on 2 August 2021, at which time the following appearances were recorded:

Ms P Minhas appeared for the UWU;

Mr I Lilley appeared for Martin Brower Pty Ltd.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“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.

(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.”

[5] In this instance, the employer opposed the application upon the basis of asserted safety concerns regarding question 5 of the draft Protected Action Ballot Order. The UWU stated that they did not press that question, and with the removal of that question, the Parties had reached a consent position which has enabled the matter to be determined on the filed material.

[6] On that basis, I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[7] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a Protected Action Ballot Order. The Order shall be made in the terms as broadly sought by the UWU. Accordingly an Order [PR732272] is issued separately.

COMMISSIONER

Appearances:

Ms P Minhas appearedfor the United Workers' Union.

Mr I Lilley appeared for the employer.

Hearing details:

2021.
Sydney:
August, 2.

Printed by authority of the Commonwealth Government Printer

<PR732271>