Application by Transport Workers' Union of Australia [2016] FWC 3364 (26 May 2016) [2016] FWC 3364 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.437 - Application for a protected action ballot order Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd (B2016/555) DEPUTY PRESIDENT BINET PERTH, 26 MAY 2016 Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd. [1] On 20 May 2016 the Transport Workers’ Union of Australia ( TWU ) applied for a protected action ballot order ( Application ) pursuant to section 437 of the Fair Work Act 2009 (Cwth) ( FW Act ). [2] The Application seeks an order to allow the TWU to conduct a ballot of its members to ascertain whether they support the taking of protected industrial action in relation to the negotiations for an enterprise agreement to replace the Transfield Services (Australia) Pty Ltd Western Australian Garrison Support Transport Services Agreement 2011 ( Proposed Enterprise Agreement ) [3] The Application indicates that the employees proposed to be balloted are the members of the TWU employed by Broadspectrum Services Pty Ltd in the State of Western Australia in the classifications to be covered by the Proposed Enterprise Agreement. [4] The Application was the subject of a conference on 25 May 2016 following email advice from the Respondent on 25 May 2016 that the Application in its current form was opposed. [5] Mr Cosi appeared on behalf of Broadspectrum Services Pty Ltd and advised the Fair Work Commission ( FWC ) that the employer had been wrongly named in the Application and should be Broadspectrum (Australia) Pty Ltd ( Broadspectrum) . He confirmed that he had authority to act on behalf of Broadspectrum. [6] The TWU applied to amend the Application to correct the name of the employer and any references to the named employer in the Application and draft order. The TWU application was granted pursuant to section 586 of the FW Act. [7] At the conference the parties agreed to changes to the draft order to address concerns Broadspectrum held in relation to the potential safety implications of the proposed industrial action. [8] The FWC is obliged to issue a protected ballot order in the following circumstances: “ 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. [9] Section 437 relevantly provides as follows: “ 437 Application for a protected action ballot order Who may apply for a protected action ballot order (1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement. (2) Subsection (1) does not apply if the proposed enterprise agreement is: (a) a greenfields agreement; or (b) a multi‑enterprise agreement. (2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement. Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute). Matters to be specified in application (3) The application must specify: (a) the group or groups of employees who are to be balloted; and (b) 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 applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person. Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)). (5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who: (a) will be covered by the proposed enterprise agreement; and (b) either: (i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or (ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order. Documents to accompany application (6) The application must be accompanied by any documents and other information prescribed by the regulations .” [10] The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement. The Application specifies the group of employees who are to be balloted. The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. The TWU have proposed that the Australian Electoral Commission conduct the ballot. The Application was accompanied by the documents and other information prescribed by the Fair Work Regulations 2009 (Cwth) . I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act. [11] The TWU has provided details of the steps taken by them to bargain and of the progress of bargaining to date. Broadspectrum do not contest this information. I am satisfied that the TWU has been, and is, genuinely trying to reach an agreement with Broadspectrum. [12] Having being satisfied that the requirements of subsections 443(1)(a) and (b) of the FW Act have been complied with the TWU application is granted and a protected action ballot order shall be issued. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, PR580792>