Australian Municipal, Administrative, Clerical and Services Union v IBM Australia Limited
[2010] FWA 4282
•8 JUNE 2010
[2010] FWA 4282 |
|
DECISION |
Fair Work Act 2009
s.437—Application for a protected action ballot order
Australian Municipal, Administrative, Clerical and Services Union
v
IBM Australia Limited
(B2010/3057)
COMMISSIONER SMITH | SYDNEY, 8 JUNE 2010 |
Proposed protected action ballot by employees of IBM Australia Limited.
[1] This is an application for a protected action ballot by certain members of the Australian, Municipal, Administrative, Clerical and Services Union (ASU) employed by IBM Australia Limited (IBM). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).
[2] The applicant seeks to ballot employees of IBM who are employed as batch and infrastructure operators in the Systems Operations Functional areas of the National Operations Centre who are members of the ASU and who would be covered by the proposed enterprise agreement.
[3] In considering this matter I must apply s.443 of the Act which provides:
443 When FWA must make a protected action ballot order
(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.
(2) FWA 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 FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA 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. In doing so I note the decision 1 of Her Honour SDP Drake which is currently under appeal and for which a stay application was refused by Justice Boulton.
[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. In this connection Mr Fergal Eiffe was called to give evidence on the steps he had taken.
[6] IBM resist the making of an order on the basis that the bargaining representative is not genuinely seeking to reach agreement. In support of this proposition IBM argues that a log of claims 2 had been later supplemented by a draft agreement3 and there had been no discussion on some items contained in that draft agreement.
[7] Two points need to be made. Firstly, IBM was aware of the items over which bargaining was sought; there was clarity in those matters and clearly priorities were assigned by the employee bargaining representative. It is not necessary for negotiations to have occurred on all matters. Indeed some of the matters referred to by IBM were procedural or required by the Act to be contained in an agreement as a prerequisite to certification. The second and allied point, is that the draft agreement which was subsequently given to IBM does not constitute capricious conduct of adding to the demands and must be seen in the totality of the process of bargaining to seek to reach agreement.
[8] IBM relied upon the decision in Total Marine Services Pty Ltd v Maritime Union of Australia 4 to support the proposition that a bargaining agent can be genuine but unless claims have been articulated, explained and discussed then a party is not genuinely trying to reach agreement.
[9] With respect to IBM this seems to be a very narrow reading of the Total Marine Services Decision. The Full Bench in that matter made it clear that the concept of genuinely trying to reach agreement will be determined by the circumstances of particular negotiations. The Bench said that it was not useful to determine any alternative test or criteria because it is the words of s.443 which must be applied. The Full Bench in that matter considered all the facts and circumstances of that matter and arrived at a conclusion.
[10] The approach of the Total Marine Services Full Bench is not at odds with other decisions which highlight that parties are not required to bargain until impasse before a protected action ballot order can be sought. Resorting to economic power by either party may well form an integral part of difficult negotiations. The object of action of this kind is to persuade the person with whom you are bargaining to agree with you.
[11] The relationship between these parties has a considerable history and it is difficult to imagine that the employee bargaining representative is not genuinely trying to reach agreement with IBM. All of the actions to date are consistent with that objective. On the material I am satisfied that the employee bargaining representative is genuinely trying to reach agreement.
[12] Having decided that s.443(a) and (b) have been complied with, I must make a protected action ballot. My order will issue shortly.
COMMISSIONER
Appearances:
C. Howell of Counsel with P. Pasfield Solicitor for the Australian Municipal, Administrative, Clerical and Services Union.
S. Meehan of Counsel with K. Blake Solicitor on behalf of IBM Australia Limited.
Hearing details:
2010.
Sydney:
June, 8.
1 [2010] FWA 3340
2 Served on 27 April 2010
3 Provided on 2 June 2010
4 [2009] FWAFB 368
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