Australian Workers' Union, The v Bridgestone Mining Solutions Australia Pty Limited

[2019] FWC 1448

[2019] FWC 1448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The

v

Bridgestone Mining Solutions Australia Pty Limited

(B2019/150)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 7 MARCH 2019

Proposed protected action ballot of employees of Bridgestone Mining Solutions Australia Pty Limited.

1. The Australian Workers’ Union (AWU) has made an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Bridgestone Mining Solutions Australia Pty Limited (Bridgestone).

1. Bridgestone accepts that the AWU has been genuinely trying to reach agreement with Bridgestone. The application was opposed by Bridgestone on the sole basis that the AWU is not, at the time it filed its application on 21 February 2019, or alternatively at the time the application was heard and determined (5 March 2019), genuinely trying to reach an agreement.

1. I heard the contested application on 5 March 2019. At the conclusion of the hearing I informed the parties that I was satisfied the statutory criteria for making a protected action ballot order had been met and that an order would be issued in due course. Bridgestone informed the Commission that it did not seek or require any reasons for my decision to make the order sought. The AWU requested reasons for my decision.

1. For the purposes of s.443(1) of the Act, I am satisfied on the evidence that:

(a)   an application has been made under s.437 of the Act; and

(b)   the AWU has been, and is, genuinely trying to reach agreement with Bridgestone.

1. My reasons, shortly stated, for finding that the AWU is genuinely trying to reach agreement with Bridgestone are as follows:

·   I accept the evidence of Mr Cameron Wright, Organiser of the AWU, that he has been genuinely trying to reach agreement with Bridgestone at all times since about mid 2018;

·   Bargaining stalled in a bargaining meeting on 6 December 2018. At that meeting Mr Wright informed Bridgestone that their draft enterprise agreement was not acceptable to the AWU because it gave rise to a number of compliance and substantive issues. The most significant substantive issue was the proposal for employees to be paid an all-inclusive rate of pay. In response to a request from Bridgestone, Mr Wright presented a template AWU enterprise agreement for discussion in negotiations. That agreement was not acceptable to Bridgestone, not least because it was based on an irrelevant award. As a result of those events, the bargaining meeting on 6 December 2018 did not last long;

·   No further bargaining meeting has been held since 6 December 2018. I accept Mr Wright’s evidence that he has been trying to move bargaining forward and arrange another bargaining meeting since that time. Indeed, Bridgestone’s two witnesses agree that there has not been a bargaining meeting since 6 December 2018 as a result of Bridgestone’s unavailability, not Mr Wright’s unavailability;

·   Bridgestone put a proposed enterprise agreement to a vote on 8 February 2019. The proposed agreement was voted down;

·   On 24 February 2019, Bridgestone met with its employees to discuss a proposed agreement. Mr Wright attended Bridgestone’s site on 24 February 2019 and spoke to members following the meeting. Later that day, Mr Wright called Mr Leadbeatter, Bridgestone’s Regional Executive Manager, and proposed a further discussion to move bargaining forward; and

·   Both parties agreed to participate in a bargaining conference before the Commission on 6 March 2019.

1. In light of my findings set out above, a protected action ballot order must be made pursuant to s.443(1) of the Act.

1. The order [PR705552] will be issued concurrently with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705551>