Australian Municipal, Administrative, Clerical and Services Union v City of Albany

[2011] FWA 8310

[2011] FWA 8310

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v
City of Albany
(B2011/293)

COMMISSIONER CLOGHAN PERTH, 8 DECEMBER 2011

Proposed protected action ballot by employees of City of Albany.

[1] On 10 November 2011, the Australian Municipal, Administrative, Clerical and Services Union (ASU) (“the Applicant”) made application to Fair Work Australia (FWA) for a Protected Action Ballot Order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).

[2] The employees to be balloted are employed by the City of Albany (“the Employer”) and represented by the ASU in bargaining for a replacement agreement for the City of Albany General Workers Union Collective Workplace Agreement 2007 (“the Agreement”).

[3] The nominal expiry date of the Agreement is 30 June 2010.

[4] The application was heard on 16 and 18 November 2011. At the conclusion of the hearing on 18 November 2011, I made a determination that the ASU had satisfied the provisions of the FW Act and an Order should issue (PR517365). These are the written reasons for issuing the Order.

[5] At the hearing, the ASU was represented by Ms D Butler, Industrial Officer. The Employer was represented by Mr G von Waidkuns-Velazquez of Counsel and evidence objecting to the order, given by Ms F James, Chief Executive Officer, City of Albany.

APPLICANT’S CASE

[6] Simply put, the Applicant’s documentary material and oral evidence of bargaining meetings commencing 18 November 2009. To date there have been approximately 23 meetings of the bargaining group.

[7] By reason of other proceedings, bargaining between the parties was the subject of Advice To Parties by the Tribunal as presently constituted.

[8] The last meeting of the bargaining group was 9 November 2011.

[9] Bargaining has been the subject of a considerable amount of written communication and each party has provided to the other their respective claims to achieve a satisfactory replacement agreement.

[10] There have been numerous draft agreements, differences of approach, allegations and disputes. Irrespective of all these characteristics, the Applicant asserts that they have been and are genuinely trying to reach agreement with the Employer.

EMPLOYER’S CASE

[11] The Employer objected to the Tribunal making the Order on the grounds that the Applicant has not been genuinely trying to reach agreement.

The Employer referred to examples as far back as 3 February 2010, of where the Applicant was not genuinely trying to reach agreement. Such examples as: not meeting deadlines; postponement of meetings; allegations by the ASU that the Employer is not negotiating in good faith and delayed/inadequate feedback on Employer requests.

CONSIDERATION

[12] It is apposite from the voluminous amount of material tendered, submissions, and evidence, each party went to significant lengths to criticise the other party’s conduct. As to be expected, criticisms were either denied or counterclaims made.

[13] The prospects of success in reaching a satisfactory replacement agreement appear remote, if the focus is to remain on each party trawling over and reciting their view of history.

[14] I have not descended into the detail of much that was put to me in the hearing. It is not my role in these proceedings to determine whether one side was right or wrong in their actions some time ago.

[15] It is clear that bargaining to date, despite its length, has not been a model of efficiency and effectiveness. However, in my view, the Employer’s representative, while correctly understanding the fundamental test in the legislation at s.443 of the FW Act, misconceived the proper approach to determine that the Applicant is not, and had not been, genuinely trying to reach agreement with the Employer.

CONCLUSION

[16] I was satisfied that the requirements of the FW Act in sections 437, 438 and 440 have been met.

[17] Having considered the relevant provisions of the FW Act, oral evidence and submissions both for and in opposition of the application, I determined that the Applicant has been and in genuinely trying to reach agreement with the City of Albany; on this base I issued Order PR517365 on 22 November 2011.

COMMISSIONER

Appearances:

Ms D Butler, for the Applicant.

Mr G von Waidkuns-Velazquez of Counsel for the Respondent.

Hearing details:

2011:
Perth,
16 and 18 November.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR517366>