Holcim (Australia) Pty Ltd v Transport Workers Union of New South Wales o/b LLL Holdings Pty Ltd & Ors [2012] NSWIRComm 36

Industrial Relations Commission New South Wales Medium Neutral Citation: Holcim (Australia) Pty Ltd v Transport Workers Union of New South Wales o/b LLL Holdings Pty Ltd & Ors [2012] NSWIRComm 36 Hearing dates: 23 April 2012 Decision date: 30 April 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: 1. That a secret ballot be conducted in relation to matter No IRC 46 of 2012 - Application by Holcim (Australia) Pty Ltd for Approval of a Contract Agreement. 2. That the secret ballot be conducted as follows: a. Each of the respondents to the proceedings, being LLL Holdings Pty Ltd, Fishers Ghost Roofing Pty Ltd, Blackmack Pty Ltd and TKMC Pty Ltd, be eligible to vote by a person having authority to bind the company. b. Voting will be a secret postal ballot conducted by the Industrial Registrar as returning officer. c. One ballot paper, initialled by the Industrial Registrar, will be sent by registered post to each of the companies eligible to vote on 4 May 2012: i) the ballot shall contain the question at Annexure A of these orders; ii) completed ballot papers are to be returned in an unmarked envelope enclosed in the supplied envelope addressed to: Industrial Registrar Private and Confidential GPO Box 3670 SYDNEY NSW 2001 iii) the date on which the ballot will be closed and on which votes will be counted will be 18 May 2012; iv) the result of the ballot will be determined immediately if all votes are cast before the close of the ballot; v) the question will be taken to have been answered by any marking which indicates selection of either option; vi) the Industrial Registrar shall advise the Commission in writing of the result of the ballot no later than 21 May 2012; included in the written advice shall be the number of votes cast, the number of voters in favour of the question, the number of votes not in favour of the question and the number of votes abstained. 3. Annexure A shall be as follows: see body of Decision. 4. The Registrar shall act in accordance with orders 1 to 3 inclusive hereof. 5. The parties shall attend the Commission at 9.30 am on 23 May 2012 to receive the result of the secret ballot and any further directions that are deemed necessary by the Commission. 6. Liberty to apply on reasonable notice. Catchwords: CONTRACT AGREEMENT - Application by principal contractor for the approval of a Contract Agreement - Objection by Transport Workers' Union of NSW and carriers to be subject to Agreement - Contention by TWU and carriers that Agreement is a common law contract and not a Contract Agreement within the meaning of the Industrial Relations Act 1996 - Application by principal contractor for a secret ballot - Objection by TWU and carriers to conduct of a secret ballot - Contention that proposed Contract Agreement not consistent with requirements of the Industrial Relations Act - Consideration of the provisions of Ch 6 of the Industrial Relations Act - Commission disquiet regarding proposed Agreement - Secret ballot ordered Legislation Cited: Industrial Relations Act 1996 Industrial Relations (General) Regulation 2001 Cases Cited: Re Review of the Principles for Approval of Enterprise Agreements 2002 [2002] NSWIRComm 342; (2002) 121 IR 144 Category: Procedural and other rulings Parties: Holcim (Australia) Pty Ltd (Applicant) Transport Workers Union of New South Wales on behalf of LLL Holdings Pty Ltd and others (Respondent) Representation: Mr S Prince of counsel (Applicant) Mr A Hatcher SC (Respondent) Workplace Advisory Group (Applicant) Transport Workers Union of New South Wales (Respondent) File Number(s): IRC 46 of 2012