Australasian Meat Industry Employees Union, The v Somerville Retail Services

[2013] FWC 694

[2013] FWC 694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australasian Meat Industry Employees Union, The
V
Somerville Retail Services
(B2013/580)

DEPUTY PRESIDENT SMITH MELBOURNE, 31 JANUARY 2013

Proposed protected action ballot by employees of Somerville Retail Services.

[1] During proceedings this morning, I dismissed the application by the Australasian Meat Industry Employees Union (“the AMIEU”) for a protected action ballot order in relation to its members employed by Somerville Retail Services. The application was made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

These are my reasons.

[2] The applicant seeks to ballot employees of Somerville Retail Services who are members of the AMIEU and who would be subject to the proposed enterprise agreement.

[3] In considering this matter I must apply s.443 of the Act which provides:

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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) 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 FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) 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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[4] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[6] Mr Simmons, on behalf of Somerville Retail Services, opposed the application stating that there had only been one meeting between Somerville Retail Services and the AMIEU to discuss the proposed agreement, which appeared to be based on the Coles agreement. Mr Simmons stated that the company had written back to the AMIEU, accepting some matters but rejecting others as either not conceded or of no relevance. He advised that another meeting had been scheduled for next week, as relevant personnel had been on leave. He added that the approach taken had not assisted in the relationship.

[7] The factual background was not disputed by the AMIEU, but it submitted that due to the history of the relationship between the parties, its members were particularly anxious to progress the matter and this application was a part of that approach. It was submitted that it didn’t want there to be any delays which would reduce the bargaining power of employees. It was conceded that access to industrial action was not planned for the immediate future as there are further meetings planned beginning next week.

[8] At this point, I cannot be satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted in accordance with s.443(1)(b). This is not a criticism of the AMIEU, but rather I have formed the view that the application is premature. It is not disputed that negotiations are in a very early stage. I am aware of the history of the relationship between the parties but this history should not lead to impatience. There is nothing in what Mr Simmons said which would lead me to the view that the employer is resisting negotiations. This weighs in favour of finding that the application is premature. In addition, there is nothing which would lead me to conclude that the employer is seeking to delay the negotiations. The response to the original claim was timely and relevant personnel have been on leave. Because of the history between the parties these would be important considerations.

[9] During the proceedings an offer was made for the Commission to assist should the parties so desire. It was also made clear that the dismissal of the matter was without prejudice to the AMIEU in the sense that no finding could be made that it was not intending to negotiate with a view to reaching agreement. The facts as disclosed only point to a level of prematurity in the application, not to any failing on the part of the AMIEU in its desire to reach agreement. The decision today does not restrict the AMIEU from making an application for a protected action ballot order in the future if the meetings scheduled to take place between the parties do not result in constructive discussions.

DEPUTY PRESIDENT

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