Australian Workers' Union v Foster Plastics Industries Pty Ltd T/A Foster Plastics

[2022] FWC 1955

[2022] FWC 1955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union

v

Foster Plastics Industries Pty Ltd T/A Foster Plastics

(B2022/1130)

DEPUTY PRESIDENT CLANCY MELBOURNE, 25 JULY 2022

Proposed protected action ballot of employees of Foster Plastics Industries Pty Ltd T/A Foster Plastics.

1. This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Foster Plastics Industries Pty Ltd T/A Foster Plastics (the Respondent).

1. On 24 July 2022, my Associate was advised that the Respondent objected to the application on the basis that the Applicant has not been, and is not, genuinely trying to reach an agreement. I determined a Mention should be conducted, during which I discussed this objection with the parties and other matters subsequently raised.

1. I observed that the AWU submitted a log of claims to the Respondent dated 30 March 2022 containing 13 items. Further, it appears that at least six bargaining meetings have been held between the Applicant and the Respondent. While both parties have revised their bargaining positions in certain respects, to date they have not been able to reach agreement.

1. The Respondent asserts that the claim on wages having increased from 7% to 7.5% per annum, the distance between the parties in terms of reaching an agreement the employees has increased. The Respondent further complains of there being an unwillingness to shift from the 7.5% wage stance. In response, the Applicant maintained that its efforts to reach agreement with the Respondent have been and are genuine. The Applicant submitted that the employees’ position on wages was adopted as a result of their frustration at the Respondent’s approach to the negotiations and what they consider to be an unwillingness by the Respondent to genuinely consider and respond to other claims included in their log of claims.

1. Section 443(1)(b) of the Act provides that, in determining whether to make a protected action ballot order, the Commission must 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. This is significant in this matter because it would appear that the decision to increase the wages claim from 7% to 7.5% per annum was made by the employees in a fit of pique, when they were unhappy with a bargaining position advanced by the Respondent. It would also appear that the Applicant has acted on the instructions of its members and conveying their revised stance on wage increases to the Respondent. In such circumstances, it is difficult to see how it could be determined that the Applicant has not been and is not genuinely trying to reach an agreement with the Respondent, particularly when the Applicant remains prepared to continue bargaining and have dialogue with the Respondent in an effort to reach agreement. While the employees’ frustration and dissatisfaction with the Respondent has presently infected its bargaining position, it has no bearing on the question of whether the Applicant has been, and is, genuinely trying to reach an agreement with the Respondent.

1. I asked the Respondent at the Mention whether it wished to press its objection and be heard, but ultimately it did not make this request. In these circumstances, I have proceeded to determine the matter on the papers. While the Respondent had expressed concern regarding the impact of protected industrial action on the viability of its operations, the existence of this concern does not prevent me from determining this application and issuing the order sought.

1. Accordingly, on the basis of the material before me, including the declaration of Mr Ross Kenna of the Applicant setting out the steps taken by the Applicant in bargaining and the assertion that it has been, and is, genuinely trying to reach agreement, together with the matters raised during the Mention, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

1. An order has been separately issued in PR744147.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR744146>