"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2013] FWC 7319

[2013] FWC 7319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2013/1213)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2013/1217)

v
Incitec Pivot Limited

DEPUTY PRESIDENT ASBURY BRISBANE, 23 SEPTEMBER 2013

Proposed protected action ballot by employees of Incitec Pivot Limited.

[1] The following decision, now edited, was issued following a hearing on 16 September 2013.

[2] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) apply under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to employees of Incitec Pivot Pty Ltd (Incitec) working at Phosphate Hill. It is not in dispute that all of the requirements under sections 437 and 438 of the Act have been met.

[3] Incitec opposes the making of the order on the ground that the AMWU and the CEPU have not been genuinely trying to reach an agreement. A hearing for the purposes of determining whether the order should be made was conducted on 16 September 2013.

[4] Evidence in support of the applications was called from Mr Richard Finch, a State Organiser with the AMWU, and Mr Paul Cameron, a Delegate of the CEPU employed by Incitec. Evidence in opposition to the applications was called from Mr Colm Friel, the Gas Fertiliser Plant Manager at the company’s Phosphate Hill site.

[5] I have considered the evidence and the submissions. The evidence establishes that there have been some 13 bargaining sessions at which the parties have met for the purposes of negotiating an agreement. A block of negotiations was scheduled for the period from 2 to 5 September 2013.

[6] On 2 September 2013 Mr Friel says management representatives were informed by the employee and union representatives that negotiations had reached an impasse and that they would only return to the bargaining table if the company significantly shifted its position. Mr Friel also states that at the time the negotiations ceased, the employee and union representatives established that they were prepared to come back to the bargaining table and that they were bargaining in good faith.

[7] It was also agreed, according to Mr Friel, that management representatives would develop a draft agreement document and that management would reconvene the parties to review that document. A meeting was requested by management representatives for 19 September 2013.

[8] In his oral evidence Mr Friel said that there has been no indication that anyone is pulling away from negotiations. There was correspondence in evidence between the company and the AMWU on 13 September 2013 in which the company invited the union to a meeting on 19 September 2013 and indicated that, if the union did not make a representative available, the company would seek the assistance of the Commission.

[9] The AMWU responded to the correspondence by letter sent on 13 September 2013, refuting the assertion that the AMWU had determined that negotiations would cease unless the company had a significantly better offer to present and the AMWU stated that the parties were very far apart in relation to the wage increase the parties had planned to negotiate that week but both parties agreed that the meetings would be cancelled so that the parties could revisit their position. The AMWU further stated in that correspondence:

“The AMWU indicated to you at that meeting that it intended on filing an application for a protected action ballot order in the Fair Work Commission.”

[10] The letter goes on to state that:

“At no stage has the AMWU refused to attend or participate in meetings. In fact, Incitec Pivot Ltd has proposed that a meeting take place on 19 September 2013 in circumstances where it is aware that Mr Finch is unavailable. Notwithstanding the inconvenience and the short notice the AMWU is nevertheless prepared to participate in that meeting on 19 September 2013.”

[11] The CEPU has also indicated that its representative will be available to meet with the company on that date. Both unions have now confirmed that they will attend the meeting. Mr Finch and Mr Cameron gave evidence about a number of outstanding issues in the negotiations and maintained that the unions are genuinely trying to reach agreement and had been negotiating in good faith.

[12] The evidence of both of those witnesses is indicative that there may have been some discussion that negotiations had reached an impasse and that there was not much point in continuing them but, in my view, that does not constitute a refusal to participate in negotiations and the proposition that there has been such a refusal is contrary to the evidence that’s before me.

[13] The words “genuinely trying” as they appear in s.443 of the Fair Work Act are to be given their ordinary meaning. The fact that an agreement has not been reached or that parties have adopted a particular negotiating position does not equate with a finding that they are not genuinely trying to reach agreement. By virtue of s.443 of the Act the Commission must make a protected action ballot order where the application has been made under s.437 and the Commission is satisfied that the parties are genuinely trying to reach an agreement.

[14] It has been held that a ground for refusal is where an application has been made prematurely or where parties have failed to articulate their positions or have only put their outlines of positions and have not provided responses to demands made by the other side before making the application for a protected action ballot order. On the evidence before me this is not such a case and I am unable to accept that it has been established that the Unions are not genuinely trying to reach agreement. The Unions have put their claims and the company has responded. The fact that an impasse has been reached does not mean that the parties are not genuinely trying to reach agreement.

[15] The fact that the union representatives in the negotiation may have stated that they did not believe there was much purpose in negotiating further until the company changed its position does not constitute a basis for finding that they are not genuinely trying to reach agreement, particularly in circumstances where they are awaiting a further document from the company and have not refused to attend meetings for the purposes of continuing to negotiate.

[16] The fact that negotiations are difficult and that parties are maintaining a position in circumstances where they have clearly articulated that position is not a basis for refusing to make a protected action ballot order. It should also be noted that a refusal to agree to a proposal made by another party in negotiations does not amount to a failure to bargain in good faith. Such a refusal certainly does not equate to a party not genuinely trying to reach an agreement.

[17] In short, there is no basis upon which I could refuse to make the orders sought in the applications and I am required by virtue of s.443 of the Fair Work Act to make those orders. Accordingly, I have decided to grant the applications in both cases and orders to that effect will issue.

DEPUTY PRESIDENT

Appearances:

Ms L. Butler on behalf of the AMWU.

Ms N. Traill on behalf of the CEPU.

Ms S. Richards and Ms S. Owen on behalf of Incitec Pivot Limited.

Hearing details:

2013.

Brisbane:

September 16.

Printed by authority of the Commonwealth Government Printer

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