Fair Work Australia has shut off an avenue to industrial action
where even one employee sought to be covered under a new enterprise
agreement is covered by an old agreement which is not about to
expire. The decision in Power Projects International Pty Ltd v
"Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union" known as the Australian Manufacturing
Workers' Union  FWAFB 1327 is an important
clarification both of the availability of protected action ballot
orders, and the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009.
The application for protected action ballot
PPI's employees perform work under maintenance contracts.
They are covered by a certified agreement made in 2008 under the
Workplace Relations Act 1996. PPI then won the contract to perform
upgrade work. The unions argued that the upgrade work was not
covered by the 2008 Agreement, and approached to PPI to negotiate
an enterprise agreement to apply to the upgrade work. They then
applied under section 437 of the Fair Work Act for protected action
ballot orders, which were granted by Deputy President Harrison.
What happens if the employees are covered by a
The key issue in this case was whether these protected action
ballot orders could be made at all. This turned on item 17 of
Schedule 13 of the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009, which restricts when protected
action ballot orders may be made where the employees are already
covered by a collective agreement-based transitional instrument,
such as a collective agreement, workplace determination, or a
pre-reform certified agreement.
The Full Bench of the Fair Work Australia said they
couldn't: if any of the employees presently
covered by the 2008 Agreement were included within the group to be
covered by the proposed agreement, the applications for ballot
orders could proceed no further.
This decision is similar to the approach taken by Senior Deputy
President Hamberger in Construction, Forestry, Mining and Energy
Union v Pilbara Iron Company (Services) Pty Ltd, Hamersley Iron Pty
Ltd and Robe River Iron Mining Co Pty Ltd (2010) FWA 8210.
Implications for employers
This decision is an important clarification of the way that the
industrial relations system transitions to the Fair Work Act.
It makes it clear that employers will not be subject to
industrial action in relation to a proposed enterprise agreement
even one employee that would be covered by the proposed new
agreement is still covered by a transitional agreement; and
that agreement has more than 30 days to run before its nominal
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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