Australasian Meat Industry Employees Union, The

[2014] FWC 5150

[2014] FWC 5150

The attached document replaces the document previously issued with the code PR553718 on 31 July 2014.

The identifying codes on the document have been changed.

Associate to Lewin C

Dated 15 August 2014

[2014] FWC 5150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australasian Meat Industry Employees Union, The
(B2014/1024)

COMMISSIONER LEWIN MELBOURNE, 31 JULY 2014

Proposed protected action ballot of employees of JBS Australia Pty Ltd.

[1] On 28 July 2014, the Australasian Meat Industry Employees Union (AMIEU) made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The AMIEU sought to ballot employees of JBS Australia Pty Ltd (JBS) who are AMIEU members and who would be covered by a proposed Enterprise Agreement.

[2] I have decided to issue a protected action ballot order. 1 The reasons for the issuing of the Order are as follows:

Statutory Provisions

[3] The relevant statutory provisions are set out below:

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.

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) 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.

[4] I am satisfied that the AMIEU is a bargaining representative of employees who will be covered by a proposed Enterprise Agreement, and therefore have standing to make the application under s.437(1) of the Act. This is not disputed by JBS. It is also uncontested by JBS that the application specifies the group of employees to be balloted, 2 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.3

[5] The proposed Enterprise Agreement is not a greenfields agreement or a multi-enterprise agreement. 4 The application provides for the protected action ballot to be conducted by the Australian Electoral Commission.5

[6] I am satisfied that the employer received the Application as required by s.440 of the Act.

Issues for decision

[7] Supplementary material was provided with the application, in the form of an affidavit by the AMIEU that contains detailed information describing the AMIEU’s attempts to genuinely reach an Enterprise Agreement with JBS on behalf of the employees who are to be balloted.

[8] On 29 July 2014, my chambers received an email from Ms Janna Molloy, National IR Coordinator, with JBS informing the Commission that JBS opposes the application. The email contained a witness statement from Mr Jason Reabel, National Industrial Relations Manager, with JBS and submissions in support of the objection.

[9] Subsequently, I sought and obtained advice from the AMIEU and JBS that they did not object to the matter being heard on the papers and requested submissions from the AMIEU in response to the material raised in the objection from JBS.

[10] On 29 July 2014, my chambers received two emails, the first of which contained a statement from the AMIEU that they did not object to the matter being heard on the papers, and the second of which contained submissions in reply from the AMIEU and a further statement of Mr Jarrod Jones of the AMIEU. Both the AMIEU and JBS confirmed that neither of the parties required any of the witnesses for cross examination.

[11] I therefore decide the matter on the materials filed with the Commission in the communications above.

[12] JBS have submitted that the AMIEU have not been and are not bargaining in good faith and are not genuinely trying to reach agreement for a proposed Enterprise Agreement.

[13] There is nothing before me which satisfies me that the AMIEU is not complying with the good faith bargaining requirements of the Act. The relevant statutory provisions are set out below:

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

[14] The material before me does not identify any breach of the relevant statutory requirements.

[15] While the AMIEU and JBS are disagreed over the terms of the proposed Enterprise Agreement it is not a requirement of the Act that parties to enterprise bargaining negotiations make concessions during bargaining.

[16] In these circumstances the following statutory provisions have application:

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.

Conclusion

[17] On what is before me, the parties have been meeting and conferring to negotiate a proposed Enterprise Agreement, to replace an existing agreement, and have done so on a number of occasions. In response to the proposals of JBS during the negotiations, the AMIEU has amended its demands in relation to the terms of the proposed Enterprise Agreement. On what is before me, the behaviour of the AMIEU, their intention and purpose is exclusively to reach agreement on the terms of a proposed Enterprise Agreement. Accordingly, I am satisfied that the AMIEU is genuinely trying to reach agreement as required by the Act.

[18] Having regard to all of the above, I must make an Order under s.443 of the Act. I will do so accordingly.

COMMISSIONER

 1   PR 544074.

 2 S437(3)(a) Fair Work Act 2009.

 3 S437(3)(b) Fair Work Act 2009.

 4 S437(2) Fair Work Act 2009.

 5 S.441 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

<Price code A PR553718>