Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourse, Public Authorities, Water Boards Union Western Australian Division v Shire of Mundaring

[2014] FWC 4443

[2014] FWC 4443

FAIR WORK COMMISSION

DECISION

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

Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourse, Public Authorities, Water Boards Union - Western Australian Division
v
Shire of Mundaring
(B2014/919)

COMMISSIONER BULL PERTH, 4 JULY 2014

Proposed protected action ballot by employees of Shire of Mundaring.

[1] This is an application by the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourse, Public Authorities, Water Boards Union - Western Australian Division (LGRCEU) for a protected action ballot pursuant to s.437 of the Fair Work Act 2009 (the FW Act) made on 30 June 2014.

[2] The LGRCEU is a bargaining representative for its members, who are said to be covered by the proposed replacement agreement. The employees are engaged to work at the Shire of Mundaring (the Respondent). The previous agreement, the Shire of Mundaring Municipal Employees Collective Enterprise Agreement 2011, reached its nominal expiry date on 30 June 2014.

[3] Following the filing of the application with the Commission, the Respondent verbally advised they opposed the application and the matter was listed for hearing.

[4] On 2 July 2014 the Respondent provided written submissions objecting to questions 5, 6, 15 and 19 of the Draft Order and proposed amendments to those questions.

[5] The matter was listed for hearing on 3 July 2014. At the hearing the LGRCEU advised that it consented to the proposed amendments to the Draft Order put by the Respondent.

[6] In respect to determining this matter I am required under s.433 of the FW Act to issue a secret ballot order where I am satisfied that the LGRCEU is genuinely trying to reach an agreement.

[7] The specific terms of s.443 are extracted below:

“443 When FWC must make a protected action ballot order

(1) 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) 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) 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.”

[8] The legislation as expressed above at s.443(1) requires that the Commission must make a protected action ballot order if satisfied the application has been made under s.437 and the Applicant has been, and is, genuinely trying to reach an agreement with the employer.

Conclusion

[9] I am satisfied that the application has been made under s.437.

[10] In respect of whether the LGRCEU is genuinely trying to reach an agreement I rely on the information provided on the application. Joint discussions between parties commenced on the 19 February 2014. Items for negotiation were tabled and discussions proceeded on these items as of 5 March 2014. There were a further seven meetings held between March 2014 and June 2014.

[11] In early June 2014 the employer put forward a draft agreement which was rejected by a majority of employees.

[12] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the information provided, that the LGRCEU has been, and is, genuinely trying to reach an agreement with the Respondent, I therefore must make the order as sought by the LGRCEU and will do so with the proposed consent amendments.

[13] An order [PR552725] based on the draft provided by the LGRCEU together with the agreed changes will issue in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR552732>

Appearances:

Mr A. Johnson, for the LGRCEU

Mr B. Taylor, for the Shire of Mundaring

Hearing details:

2014.
Perth.
3 July.