Fair Work Act 2009

s.437 - Protected action

Burswood Resort (Management) Ltd T/A Crown Perth

Proposed protected action ballot of employees of Crown Perth who are members of United Voice and who will be covered by the proposed replacement enterprise agreement.

[1] On 26 September 2019, United Voice filed an application for a protected action ballot order (PABO) pursuant to s 437 of the Fair Work Act 2009 (Cth) (Act). The application concerned a proposed ballot of employees of Burswood Resort (Management) Limited T/A Crown Perth (Crown). The employees are members of United Voice and will be covered by a proposed enterprise agreement (proposed agreement) that would replace the Hospitality Sector WA United Voice - Crown Perth Enterprise Agreement 2016 (Crown Agreement), which presently covers their employment.

[2] Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a PABO within two working days after the application is made. Crown objected to the application in respect of the draft order sought. The matter was listed for hearing on 2 October 2019, given the public holiday in the Western Australia on 30 September 2019.

[3] On the afternoon of 1 October 2019, Chambers received correspondence from United Voice and Crown with respect to the status of the matter. Both confirmed that earlier in the day on 1 October 2019, the parties had conferred regarding Crown's objections and an agreed position had been reached. The agreed position was that the draft order would be amended as follows:

Actions 2 and 3: Insert the statement - Employees will not take action involving the wearing of clothing where pockets are prohibited.

Action 6: amended to - An unlimited number of bans for an unlimited duration on following log in/ log off protocol for table games.

Action 15: amended to - Industrial action in the form of closing game tables (by following proper closing procedures) for durations between 15 minutes and 1 hour.

Action 24: delete - An unlimited number of bans for an unlimited duration on counting or collecting boxes or cassettes of chips.

[4] Section 437 of the Act enables a bargaining representative to apply for a PABO. Subject to the restrictions in s 437(2A) and s 438(1) (which are not presently relevant), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s 443. Section 443 relevantly provides:

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:

(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.

[5] It is not in dispute that United Voice: (a) is a bargaining representative and entitled to make this application; (b) had made a proper application as required by the Act and has met the documentary and notice requirements for the application; and (c) is not prevented from bringing the application by virtue of s 438 given the nominal expiry of the Crown Agreement.

[6] It was confirmed that Crown was provided with a copy of the application within 24 hours of it being made as required by s 440 of the Act

[7] Based on the totality of the documentation filed, I am satisfied that the threshold requirements have been met.

[8] Having considered the submissions of both United Voice and Crown, and the contents of the draft order received by Chambers on 1 October 2019, I am satisfied that the statutory requirements have been met. An order, PR712843, based on the draft order and correspondence provided by the parties on 1 October 2019, will be issued concurrently with this decision.

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