“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2014] FWC 8558

[2014] FWC 8558

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(B2014/1114)

Construction, Forestry, Mining and Energy Union
(B2014/1635)

The Australian Workers’ Union
(B2014/1645)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 28 NOVEMBER 2014

Proposed protected action ballot orders of employees of T & C Services Pty Ltd.

[1] I have before me three applications under s.437 of the Fair Work Act 2009 (the Act) for the making of protected action ballot orders, made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU), the Construction, Forestry, Mining and Energy Union (CFMEU) and The Australian Workers’ Union (AWU), in respect of members employed by T & C Services Pty Ltd (T & C) undertaking work project for the removal and replacement of an acid tank under a contract held by T & C with BlueScope Steel during a shutdown of the acid tank.

[2] The three applications have been heard together, having regard to s.442 of the Act, substantially common evidence and the desirability, should more than one of the orders be made, that the ballots can be conducted at the same time for purposes of administrative efficiency. However, they are separate applications to be determined on their own facts.

[3] I note that T & C has challenged the standing of the CFMEU to make its application. That question is to be put to one side for later determination, in the event that I am persuaded to make an order in respect of its application.

[4] The evidence goes to a 17 November 2014 meeting between Mr J Gonzales, a T & C Manager, and officials of each union (Mr G Warren (AMWU), Mr J Duggan (CFMEU) and Mr C Heath (AWU)) entitled to act as bargaining representatives for their members employed on the project by T & C and surrounding evidence which, in terms of the interaction between T & C and the unions, goes largely to interactions between Mr Gonzales and Mr Warren.

[5] Section 443(1) of the Act sets out the circumstances in which the Fair Work Commission (the Commission) must make a protected action ballot order:

“The FWC 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) the FWC 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] Section 437(1) authorises the making of an application by a bargaining representative of an employee who will be covered by a proposed enterprise agreement.

[7] The issues in contention are whether the applications were made in respect of employees who will be covered by a proposed enterprise agreement (s.443(1)(a)) and whether each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted (s.443(1)(b)).

[8] Each applicant contends that the interaction between them and T & C was directed to the making of a proposed enterprise agreement they have been, and are, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[9] T & C contends that the unions were not seeking to make an enterprise agreement and were not and are not genuinely trying to reach an agreement. Rather, T & C contends, the unions were seeking that T & C apply to its employees on the project the terms and conditions of the “Western Port Agreement”, 1 terms and conditions which have been historically applied to such work within a 10 kilometre radius of the Hastings Post Office.

[10] In respect of both the AMWU and the CFMEU applications, I am not satisfied that the applications were made in respect of a proposed enterprise agreement or that the AMWU and the CFMEU have been, and are, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[11] I have reached this conclusion on the basis of the clear and unequivocal evidence of Mr Gonzales as to the interaction between him and the relevant officials of each union (and his documentary evidence in relation to that interaction) which leads to a conclusion that the AMWU and the CFMEU were, in reality, addressed to having T & C apply the terms and conditions of the “Western Port Agreement” in accordance with historical practice, rather than to the making of an enterprise agreement between them and T & C in respect of the T & C employees working on the project.

[12] The evidence of Mr Gonzales was supported by contemporaneous notes. The evidence of Mr Warren and Mr Duggan was equivocal in respect of the term “log of claims” arose in the meeting. The evidence of Mr Warren was that he spent some time explaining the operation and history of the “Western Port Agreement” and that Mr Gonzales went through the terms and conditions in it and identified terms and conditions being met by T &C. The evidence of Mr Warren and Mr Duggan was largely consistent with the conclusion that the purpose and objective of the unions was to achieve compliance with the terms of the “Western Port Agreement”, in that the unions sought to achieve the application of the terms and conditions of the “Western Port Agreement” by T & C, as reflected in Exhibit AMWU 1 – that the terms and conditions of the “Western Port Agreement” must be applied by T & C to its employees on the project – rather than the making of an enterprise agreement.

[13] In respect of Mr Heath, and the AWU application, Mr Heath gave evidence that he attended the 17 November 2014 meeting with the intent of negotiating an enterprise agreement that would cover T & C employees “on-hired” to perform maintenance related tasks with a 10 kilometre radius of the Hastings Post Office. In his evidence he recounted him on several occasions where he persued the making of an enterprise agreement during the meeting of 17 November 2014. The evidence of Mr Gonzales contradicts the evidence of Mr Heath in relation to the 17 November 2014 meeting in that regard and the evidence of Mr Warren and Mr Duggan does not support that evidence of Mr Heath. In particular, Mr Warren’s recounting of what was said in that meeting does not support Mr Heath’s evidence that he specifically pursued the making of an enterprise agreement in that meeting. I prefer the evidence of Mr Gonzales. I am not satisfied that the AWU was trying to reach an enterprise agreement in that meeting with T & C was, in concert with the AMWU and the CFMEU seeking to achieve compliance with the terms of the “Western Port Agreement”.

[14] Further, in terms of the requirement in s.443(1)(b) of the Act that each applicant is (currently) genuinely trying to reach an agreement, the making of an enterprise agreement in respect of T & C employees on the project is unlikely to be achievable, having regard to the evidence that the work is planned to and is likely to conclude on 10 December 2014 and the requirements for the making of an enterprise agreement in ss.180 and 181 of the Act. On the evidence before me is extremely unlikely there will be employees engaged who could vote on and approve an enterprise agreement at the time a vote could be conducted under the Act. In these circumstances and having regard to my earlier findings, I am not satisfied that any of the three applicants are currently genuinely trying to reach an agreement.

[15] On the evidence, I find that the claim against T & C by each union, reflected in Exhibit AMWU 1, was and is a claim that T & C comply with the terms and conditions of the Western Port Agreement and not a claim for the making of an enterprise agreement between T & C and their members engaged by T & C on the project.

[16] I am not satisfied that any of the applications are made in respect of a proposed enterprise agreement to cover the T & C employees engaged on the project or that any of the applicants have been, and are, genuinely trying to reach an enterprise agreement with the employer of the employees who are to be balloted.

[17] Each application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

D Vroland for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

A Swayn for the Construction, Forestry, Mining and Energy Union.

P Reilly forThe Australian Workers’ Union.

H Skene for the Respondent.

Hearing details:

2014

Melbourne:

November 27, 28.

 1   Exhibit AMWU 1

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