Australian Municipal, Administrative, Clerical and Services Union v Hunter Water Australia Pty Ltd
[2010] FWA 5553
•26 JULY 2010
[2010] FWA 5553 |
|
DECISION |
Fair Work Act 2009
s 437 - Application for a protected action ballot order
Australian Municipal, Administrative, Clerical and Services Union
v
Hunter Water Australia Pty Ltd
(B2010/3237)
DEPUTY PRESIDENT SAMS | SYDNEY, 26 JULY 2010 |
Proposed protected action ballot by employees of Hunter Water Australia Pty Limited.
[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’), for an order of Fair Work Australia (FWA) for a protected action ballot of employees of Hunter Water Australia Pty Ltd (‘the respondent’). The application was filed on 21 July 2010, by the Australian Municipal, Administrative, Clerical and Services Union (‘the Union’), and consistent with the provisions of s 441 of the Act, listed for hearing the following day.
[2] At the hearing of the application, Ms J Wright (Solicitor) appeared for the applicant Union and Mr A Doyle from the Australian Federation of Employers and Industries appeared for the respondent. Ms Wright relied on a statement of Mr A Pugh, Assistant Secretary of the Union and submitted that the Union had been genuinely trying to reach an agreement with the respondent, for its members, since March 2009. There have been a number of meetings between the parties and the members had recently voted down a proposal offered by the respondent on 22 and 23 June 2010. The respondent had now notified the Union on 21 July 2010 that it intended to re-submit the same agreement to employees which had been earlier rejected by them. In the alternative, the Union indicated its willingness to continue the negotiations.
[3] Mr Doyle relied on the oral evidence of Ms M Griffin, the respondent’s Commercial Manager. Ms Griffin deposed that the respondent believed that apart from two minor matters in respect to annual leave and personal carers’ leave, substantive agreement had been reached with the Union. Had the respondent known that significant matters would have now been put back on the negotiating table, the respondent would not have made the salary offers it had earlier made.
[4] Mr Doyle submitted that the Union, acting as a collective body, had by its actions, demonstrated it was not genuinely trying to reach an agreement. This is a requirement before FWA can make an order for a protected action ballot.
CONSIDERATION
[5] Section 443(1) of the Act mandates that FWA must make an order for a protected action ballot, subject only to two considerations:
(1) FWA 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) FWA 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.
[6] Firstly, there is no doubt that subsection (1)(a) of s 441 has been complied with as an application, identifying the matters which must be specified in the application under s 437 of the Act, together with the required draft order is properly before FWA and the documents have been served on the respondent (s 440).
[7] Secondly, having heard the submissions of the parties and taking account of Mr Pugh’s and Ms Griffin’s evidence, I consider that the Union has been genuinely trying to reach an agreement with the respondent. Indeed, the negotiations for a new agreement commenced over 12 months ago.
[8] The fact that employees have voted down a proposed agreement and reinstated claims which the respondent believes were no longer being pursued, are not necessarily matters which demonstrate the Union is not genuinely trying to reach an agreement. In my view, they are merely indicia of robust and dynamic negotiations between experienced industrial parties. Nor is it relevant that the respondent would not have made its wages offer, if it had known earlier claims were to be reactivated. In these circumstances, the respondent is now perfectly entitled to withdraw its earlier wage offers. The Union wishes to continue the negotiations, notwithstanding the respondent intends to put its proposed agreement to another ballot of its employees.
[9] Nevertheless, I am satisfied that the requirements of s 443(1) of the Act have been met. An order for a protected action ballot in the terms of the proposed draft order was made on 22 July 2010.
DEPUTY PRESIDENT
Appearances:
Ms J Wright, Senior Industrial Officer, for the Union
Mr A Doyle, Solicitor, Australian Federation of Employers and Industries, for the respondent
Hearing details:
2010
SYDNEY
22 July
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