In this case, Fair Work Australia overturned a decision of Harrison DP granting a protected action ballot order on the basis that some of the employees who would be covered by the proposed agreement were already covered by another agreement which had not yet passed its nominal expiry date. The commission found that Item 17 of Schedule 13 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 prevented an application for ballot order from being made if “any of the employees” covered by the transitional agreement which had not passed its nominal expiry date were included within the group to be covered by the proposed agreement.
The existing agreement was a transitional agreement made under the Workplace Relations Act 1996. It covered employees engaged in the “life extension, maintenance, repair and/or rehabilitation on industrial or power station sites”. The group of employees to be balloted for the proposed agreement was those employees who “work at Eraring Power Station on the Eraring Energy Shutdown and Upgrade Construction Project”. On the facts, the commission found that some of the employees would have been covered by both agreements.