Applications by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy,...

[2022] FWC 931

[2022] FWC 931

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Applications by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and The Australian Workers' Union.

(B2022/336, B2022/337, B2022/338)

COMMISSIONER PLATT ADELAIDE, 22 APRIL 2022

Proposed protected action ballot of employees of ASC Shipbuilding Pty Ltd T/A BAE Systems Maritime Australia - applications granted - orders issued

1. The following reasons for decision relate to my decision to issue protected action ballot orders[1] on Thursday, 21 April 2022.

1. On 19 April 2022, three separate applications (the Applications) were made by the Australian Workers’ Union (the AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (together, the Unions), seeking protected action ballot orders (PABOs) pursuant to s.437 of the Fair Work Act 2009 (the Act) in relation to employees of ASC Shipbuilding Pty Ltd T/A BAE Systems Maritime Australia (BAE Systems) to determine whether eligible employees wish to engage in specified protected industrial action for a proposed enterprise agreement.

1. On 20 April 2022, upon request from the Commission, the Applicants each filed amended applications clarifying the group of employees that were being proposed to be balloted. Each of the applications was identical save for the group of employees that was to be balloted.

1. On 21 April 2022, the Respondent advised the Commission that the Applications were opposed on the basis that:

·   The Commission could not be satisfied that the Unions are, or have been, genuinely trying to reach agreement; and

·   the proposed questions put forward by the Unions in the draft orders failed to express the action with sufficient clarity to enable the employees to make an informed choice as to whether to support the proposed action.  

1. BAE Systems also sought, if the Applications were granted, that the period of notice of protected industrial action be extended to 7 days.

1. The matters were jointly listed for conference at 2.00pm on 21 April 2022. The parties were notified that if the matters did not resolve through conciliation, they would proceed to a Hearing at 3.00pm on 21 April 2022. The matters did not resolve at conciliation and the parties were given further time to provide material to support their positions.  The Hearing commenced shortly after 3.30pm.

1. The AWU was represented by Mr Nathan Crack, the AMWU by Mr Stuart Gordon and the CEPU by Mr Simon Pisoni. BAE Systems was represented by Ms Lauren Krollig. The representatives of each of the Unions filed a witness statement and were cross-examined. Mr Gordon also filed email correspondence between the parties and a marked-up copy of the proposed agreement. The Respondent did not file any written witness statements, but Mr Steve Marsh, Head of Production for BAE Systems, attended to give evidence.

1. During the proceedings, the Unions provided amended draft orders which alleviated the concerns of the Respondent in regards of the questions. As such, the Respondent indicated that they no longer pressed that objection.

1. There was no submission that the requirements of s.437(2A) or s.440 of the Act had not been met, and there was evidence on file that the Australian Electoral Commission had been served each of the Applications by email.

1. The remaining issues in dispute were whether the Unions were genuinely trying to reach an agreement as per s.443(1)(b), and if I was minded to grant the Applications, whether exceptional circumstances existed such that it was necessary to extend the period of notice to a period longer than 3 working days as per s.443(5).

Genuinely trying to reach agreement

1. Section 443(1) of the Act states that:

“The FWC must make a protected action ballot order in relation to a proposed 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.”

1. It was common ground between the witnesses that the Unions and the Employer served a log of claims in July 2021 and that the parties had met on at least 16 occasions. The Unions had been afforded opportunities to consult with members concerning the proposed agreement’s content. The employer was seeking to redraft the existing agreement in simpler terms and the Unions held concerns that those revisions did not reflect the existing agreement provisions.  There were also concerns about the recent wage proposal which led to members instructing the Unions to lodge the Applicants for a PABO.   

1. The parties appear to be going through an orthodox bargaining process. Each of the witnesses agreed that the list of outstanding claims had reduced from the commencement of bargaining, and that significant progress towards reaching an agreement was being made.

1. Whilst parties may have strong views in relation to bargaining for the proposed agreement, the Unions’ involvement in the above bargaining meetings and the fact that each party agrees that the parties have made significant process towards reaching agreement indicates to me that each of the Applicants have been, and are, genuinely trying to reach an agreement. I am satisfied that the requirements of s.443(1) have been met.

Period of notice

1. Section 443(5) of the Act states that:

“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.”

1. The onus is on the Respondent to demonstrate that exceptional circumstances exist. 

1. The Respondent led witness evidence at the Hearing from Mr Marsh as to the circumstances that the Respondent claimed were exceptional such to justify a period of notice longer than 3 working days.  

1. It is commonplace that industrial action will have an adverse impact on an employer. I was unable to glean from Mr Marsh’s evidence the basis for which the Respondent’s position was in any way exceptional.

1. The Respondent’s representative submitted that the time constraints imposed by the Act on the hearing of these matters prevented her from putting all of the relevant information before me as to extended notice, however no application for an adjournment was made.

1. I am not satisfied that such exceptional circumstances exist, and therefore it was not open to me to extend the period of notice to longer than 3 working days.

COMMISSIONER

Appearances (by telephone):

Mr S Gordon for the AMWU
Mr S Pisoni for the CEPU
Mr N Crack for the AWU
Ms L Krollig for the Respondent

Hearing details:

Adelaide.
2022:
April 22.

[1] PR740560, PR740561, PR740562.

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