“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Megabolt Australia Pty Ltd
[2010] FWA 5497
•23 JULY 2010
[2010] FWA 5497 |
|
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)
v
Megabolt Australia Pty Ltd
(B2010/115)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 23 JULY 2010 |
Proposed protected action ballot by employees of Megabolt Australia Pty Ltd.
The following decision now edited was given at the conclusion of proceedings on 21 July 2010:
[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), pursuant to s.437 of the Fair Work Act 2009 (the Act), for the making of a protected action ballot order in respect of the employees, whom it represents in bargaining with Megabolt Australia Pty Ltd (Megabolt). Section 443 of the Act provides that Fair Work Australia must make a protected action ballot order in relation to a proposed enterprise agreement if an application has been made under s.437 and that Fair Work Australia 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.
[2] I am satisfied as to the first point that an application has been made under s.437. No issues are raised in relation to that by Megabolt. Megabolt by its presence has clearly been served as has the Australian Electoral Commission which has indicated an initial provisional program, as it usually does. I am further satisfied that the AMWU is entitled to make the application as a bargaining representative and it is put by the AMWU and not disputed that there is no existing agreement, so the issue of premature application, having regard to a nominal expiry date in s.438(1), does not arise.
[3] In respect of the second matter, Megabolt opposes a ballot on the basis that Fair Work Australia cannot be satisfied that the AMWU has been and is genuinely trying to reach an agreement on three bases:
- that the application was made prematurely in light of the present state of negotiations; and
- that the applicant has been seeking until yesterday the inclusion of an unlawful term in the agreement; and
- finally that the union has through conduct in relation to non-union bargaining representatives stopped full and proper negotiations.
[4] The approach to the concept of genuinely trying to reach agreement was considered in Total Marine Services Pty Ltd v Maritime Union of Australia [[2009] FWAFB 368]. That Full Bench found, at paragraph 32:
“We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
[5] I am not satisfied that the application has been made prematurely in the light of the current state of negotiations. It is true on the evidence that the negotiations have been frustrated, firstly by an actual refusal by Megabolt to bargain, and secondly by the AMWU seeking to establish that the non-union bargaining representatives are independent of the employer as is required by regulations under the Act. However, the evidence also establishes that the AMWU has, since mid-December - notwithstanding the hiatus concerning the independence issue - been seeking to negotiate an agreement with Megabolt.
[6] The evidence of Mr Chirgwin, uncontested, is that a draft Enterprise Bargaining Agreement (EBA) was distributed in mid-December 2009 to the delegates and Megabolt. Mr Bull’s evidence is that on 24 March 2010 he circulated a copy of a proposed EBA and explained the content requirements. The evidence of Mr Grundy was that Mr Bull in fact tendered a table of contents of the EBA and a list of additional claims in a two page document. In exhibit AMWU 6, Mr Grundy has recorded - from a meeting held on 12 May 2010 - a summary of EBA meetings and in it lists, with some particularity, the claim of the AMWU. These, in my view, support a finding that the evidence of Mr Bull is to be preferred in respect of what document was provided at the time; that is, a copy of an EBA, as proposed by the AMWU.
[7] In any case, even if that is not the case, it is evident in my view that the specific claims sought by exhibit AMWU 6 were discussed and explained in sufficient detail, orally, in meetings, if not by way of a documented EBA, for Megabolt to understand the basis of the AMWU’s claims.
[8] It is evident that wages are always a significant issue, and that was evident in both the union and non-union bargaining representatives’ positions as recorded. That item and many of the others set out in exhibit AMWU 6, in the summary, satisfy me that the AWMU has, in the course of negotiations, clearly articulated the major items it is seeking to be included in the agreement.
[9] In respect of the other observation of Total Marine Services Pty Ltd v Maritime Union of Australia and whether the AMWU has provided a considered response to any demands made by the other side, the only concrete proposition by Megabolt, in evidence, is a 3-by-3-by-3 per cent wage increase, and a sketchy classification structure which does not identify the effect upon employees. That proposition, on the evidence, was rejected as being inadequate and, in the latter respect, not providing sufficient information to make an assessment.
[10] In those circumstances, to the extent that a demand was made by Megabolt, the AMWU has provided a considered response to the extent possible on the information available in the 3-by-3-by-3 proposition.
[11] On the issue of the unlawful claim - the unrestricted right of entry to union representatives - that was, in those terms, an item appearing in a document provided to a meeting on 23 June 2010, being, on the evidence, one of several items raised by the employees rather than the proposed union agreement, but it was clearly put on the table for discussion at that time.
[12] It is my view that it was not a matter, on the evidence, of the AMWU pursuing an unlawful term but rather having put right of entry in the terms proposed by employees on the table for discussion, subject to further consideration and integration into the proposed AMWU agreement.
[13] When on 19 July 2010 the unlawful nature of that claim in those specific terms was raised, the AMWU took action on 20 July 2010 to clarify the claim and limit the claim to make it in terms that would be consistent with the right of entry provisions of the Act and not unlawful.
[14] I am not satisfied, accordingly, that the AMWU has been seeking the inclusion of an unlawful term; rather, it has been seeking a request for employees to place a right of entry provision on the table for negotiation.
[15] In relation to the conduct of the AMWU in respect of the non-union bargaining representatives, in my view it was open to the AMWU to test its concern, however based, as to whether the non-union bargaining representatives were independent of Megabolt. In those circumstances it is unsurprising that the AMWU withdrew from negotiations until that clarification was provided, following proceedings before Commissioner Gay.
[16] Accordingly, I am satisfied that the AMWU has been and is genuinely trying to reach an agreement with Megabolt on behalf of the employees to be balloted, and a ballot order will be made in the terms sought [PR999115].
[17] I would indicate that obviously the parties are at liberty to continue negotiations, and should continue negotiations. Indeed the AMWU has indicated that its preference is for a negotiated agreement without resort to industrial action. There is some reasonable time available to the parties during the conduct of a ballot and during any notice period, if a ballot authorises industrial action, for those further negotiations to occur.
[18] It goes without saying that the parties are free to apply to Fair Work Australia to seek assistance in those negotiations if they see some value in that in resolving the differences between them. I would encourage the parties to resume negotiations with some expedition whilst the ballot processes play out.
SENIOR DEPUTY PRESIDENT
Appearances:
E. McGrath on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
S. Ralph on behalf of Megabolt Australia Pty Ltd.
Hearing details:
2010.
Melbourne:
July 13 and 21.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR999668>
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