“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);The Australian Workers’ Union;Communications, Electrical, Electronic,...

[2017] FWC 5689

[2017] FWC 5689

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);
The Australian Workers’ Union;
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
Australian Municipal, Administrative, Clerical and Services Union
v
Thompsons, Kelly & Lewis Pty Ltd T/A Flowserve Pump Division
(B2017/1021, B2017/1028, B2017/1040, B217/1041)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 NOVEMBER 2017

Proposed protected action ballot of employees of Thompsons, Kelly & Lewis Pty Ltd T/A Flowserve Pump Division.

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU), The Australian Workers’ Union (the AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) and the Australian Municipal, Administrative, Clerical and Services Union (the ASU) (the Unions) all applied separately for a protected action ballot order.¹

[2] The Unions sought an order that employees of Thompsons, Kelly & Lewis Pty Ltd T/A Flowserve Pump Division who are members of the Unions and who would be subject to the proposed enterprise agreement be balloted to see if they supported the taking of protected industrial action.

[3] It was not disputed that:

(1) The Unions are bargaining representatives for employees.²

(2) The applications specify the group of employees to be balloted and the questions to be put to the employees.³

(3) A copy of the applications was given to the employer and the AEC within 24 hours of the making of the applications.⁴

(4) The nominal expiry date of the agreement has passed.⁵

[4] Mr Nicholas Grealy an AMWU Industrial Officer, Mr Mick Derrick, an AWU Organiser, Mr Damian King an ETU Branch Organiser and Ms Cassandra Farley an ASU Organiser, all filed statutory declarations.

[5] On 30 October 2017, Ms Mitzi Fersch, Human Resources for Flowserve, emailed the Commission advising that they objected to the application and wished to be heard in this matter.

[6] The matters were listed for hearing on 1 November 2017 at 2.00 pm.

[7] At the hearing it was noted that the CEPU had not notified the AEC within 24 hours of the filing of the application. 6 This meant the CEPU’s application could not be approved and the CEPU advised that it would file a new application. Flowserve did not object to the evidence given and the submissions made at the hearing being relied upon in relation to any new application made by the CEPU. The CEPU subsequently filed a new application and I am satisfied that this application complies with s.440 of the Act.

[8] After the hearing I was advised that the ASU had similarly failed to notify the AEC in accordance with the Act. The ASU discontinued its application and filed a subsequent application. Flowserve advised that it did not object to the evidence given and the submissions made at the hearing being relied upon in relation to any new application made by the ASU. The ASU subsequently filed a new application and I am satisfied that this application complies with s.440 of the Act.

[9] At the hearing Mr Daniel Miller an organiser with the AMWU gave evidence about the bargaining for the agreement. Ms Fercsh gave evidence for Flowserve. Flowserve did not object to the evidence being given by the AMWU being relied upon by the other unions to support their applications.

[10] Timetable of the bargaining.

7 August 2017	Mass meeting of union members to endorse the log
7 August 2017	Notice of employee rights give to employees
30 August 2017	Log of claims provided to Flowserve
September 2017	Telephone call between Ms Fersch and Mr Miller about first meeting and Flowserve float the idea that the agreement could be varied.
5 September 2017	First bargaining meeting. Unions explain their claim. Company said it preferred a variation to the Agreement because the process of finalising the agreement on the last occasion had taken a long time. There was a discussion about the duration of the Agreement.

26 September 2017	Second bargaining meeting. – Again the unions explained their claims and the Company explained its desire for a variation
11 October 2017	Third bargaining meeting - Flowserve puts its response to the unions.
18 October 2017	Combined unions mass meeting to consider Flowserve proposal. It was rejected.
24 October 2017	Fourth bargaining meeting. Unions advise Flowserve that its proposal is rejected including that they do not want a variation to the agreement. There is a conflict in the evidence about whether the unions advised Flowserve at this time that they were no longer pursuing income protection and additional trade union training leave. Mr Miller says this was explained at this meeting but Ms Fercsh said it was not. Flowserve said given the rejection of its position it would need to review its position. Ms Fersch said the unions raised new issues namely the reclassification of the FIFO workers, meal breaks and the outdated clerical award. Mr Miller accepted that the unions raised the outdated clerical award and LSL legislation but said this was about tidying up the agreement and were not new claims. Mr Miller accepted that the FIFO workers wanted reclassification. The parties agreed to meet on 13 November 2017.

[11] The unions submitted that the evidence established that they were genuinely trying to reach agreement. They had put a detailed claim to Flowserve and had explained their claim at two meetings. They had considered Flowserve’s claim but it had been rejected. The unions had doubts about the legal effectiveness of Flowserve’s proposal that the existing agreement be varied. They submitted that they had modified their claims and were further prepared to modify their claims. Flowserve submitted that the application was premature. It was submitted that the unions had not moved from their starting position and had raised new claims. Ms Fersch accepted that, just like Flowserve, the unions were keen to reach an agreement. She rejected the submission that the unions had modified their claims and submitted that the unions had added to their claim at the last bargaining meeting. Further Flowserve submitted that had the unions notified them earlier of the members’ rejection of the variation proposal it would have been able to put a more detailed response at the meeting on 24 October 2017.

[12] It was clear that there was some confusion about the parties’ respective positions. Flowserve sought a variation but it appears that what Flowserve was really seeking was to roll over the existing agreement with wage increases. In addition it was not clear to Flowserve that the unions had modified their claims. That they had abandoned 2 of their claims was made clear at the hearing.

[13] It is clear that the parties are apart on some significant issues for example the unions seek the reestablishment of the relativities between classifications in accordance with the Manufacturing and Associated Industries and Occupations Award 2010 and this has been rejected by the Company.

[14] In relation to the allegation that the unions had raised new claims Ms Fersch accepted that the reclassification of FIFO workers would not require a change to the Agreement. I am not satisfied that raising some new matters during bargaining is evidence that the unions are not genuinely trying to reach an agreement.

[15] Further I am not satisfied that the timing of the application means that the Unions are not genuinely trying to reach an agreement. There is no obligation under the Act for bargaining to be exhausted before an application for a protected action ballot order is made.

[16] I am satisfied that the Unions have satisfied the statutory prerequisites for a protected action ballot order and on the evidence before the Commission I am satisfied that the Unions are genuinely trying to reach an agreement. Accordingly orders will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

B. Terzic for the AMWU.

A. Kendall for the CEPU.

L. Aksu for the AWU.

T. O’Loughlin for the ASU.

M. Fersch for the Respondent.

Hearing details:

2017.

Melbourne:

1 November.

1 See s.437 of the Fair Work Act 2009

2 Ibid s.437(1)

3 Ibid s.437(3)

4 s.440

5 s.438(1)

 6   S,440 of the Act

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