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[2014] FWC 5110
procedural. Protected action ballot order approved in terms sought by the NUW, subject to potential editorial amendments by the Commission to reflect the normal form of such orders.
1 cited instrument linked from this judgment.
The Fair Work Commission granted the National Union of Workers' application for a protected action ballot order. The Commission found that once the statutory requirements were met—namely, that an application was made under s.437 and the union was genuinely trying to reach an agreement with the employer—it had no discretion and was required to make the order. The employer's concern that the ballot would delay negotiations was rejected as irrelevant to the statutory criteria in s.443 of the Fair Work Act 2009.
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s.437 - Application for a protected action ballot order
Proposed protected action ballot of employees of Veyance Belting Pty Ltd - Ballot order approved.
[1] The following decision, now edited, was issued in transcript on 28 July 2014.
[2] This is an application by the National Union of Workers (the NUW) for the making of a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The application is opposed by the respondent employer, Veyance Belting Pty Ltd, on the basis that it apprehends that the conduct of a ballot would delay negotiations. Section 443 of the Act sets out the circumstances in which the Fair Work Commission (the Commission) must make a protected action ballot order. In s.443(1) of the Act, the circumstances in which an order must be made is that an application has been made under s.437 and that has occurred by way of the application made on 22 July 2014.
[3] Secondly, if the Commission is 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, and in that context Veyance Belting Pty Ltd does not dispute the proposition that that is so, that the NUW has been and is genuinely trying to reach an agreement. In those circumstances, having regard to s.443(1) of the Act, I must and will make the protected action ballot order sought by the NUW. It will be in the terms set out in the draft application filed by the NUW save for some potential editorial action on the part of the Commission to reflect the normal form of such orders. The issue of potential delay raised by Veyance Belting Pty Ltd, in my view, is not relevant to the statutory matters in s.443 of the Act.
E. Barrett with A Rilley for the National Union of Workers.
L Wilson with M Seeley and A Palazzolo for Veyance Belting Pty Ltd.
Printed by authority of the Commonwealth Government Printer
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Protected action ballot order approved in terms sought by the NUW, subject to potential editorial amendments by the Commission to reflect the normal form of such orders.