"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Otis Elevator Company Pty Ltd

[2013] FWC 3003

[2013] FWC 3003

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)
v
Otis Elevator Company Pty Ltd
(B2013/117)

COMMISSIONER BULL MELBOURNE, 17 MAY 2013

Proposed protected action ballot by employees of Otis Elevator Company Pty Ltd - Employer opposition to ballot order issuing.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU). It seeks a protected action ballot order in relation to certain employees of Otis Elevator Company Pty Ltd (the Employer).

[2] Under s.437 of the Act, a bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply to FWC for an Order requiring a protected action ballot to be conducted (within a specified period) to determine whether employees wish to engage in various forms of protected industrial action for the agreement. The specific terms of s.443 are extracted below:

443 When FWC must make a protected action ballot order

(1) 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) 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.

(2) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(my emphasis)

[3] The legislation as expressed at s.443(1) requires that FWC must make a protected action ballot order if satisfied the Applicant, in this case the AMWU has been, and is, genuinely trying to reach an agreement with the Employer.

[4] The application by the AMWU was opposed by the Employer.

[5] The matter was heard on 15 May 2013, the AMWU was represented by Mr Walkaden and the Employer was represented by Mr Warren, the Employer’s Manager Human Resources.

[6] In support of the application, Mr Cummings, an official of the AMWU responsible for AMWU members engaged by the Employer gave evidence that he had met the Employer on a number of occasions to discuss the AMWU’s claim for an enterprise agreement. The dates and nature of these negotiations were reflected in a statement prepared by Mr Cummings dated 10 May 2013.

[7] Mr Cumming’s clarified and amended his witness statement during his examination in chief. In essence, Mr Cumming’s relied on 10 meetings that had occurred with the Employer in an attempt to reach an agreement, the last of which was held on 14 May 2013, to demonstrate his union was genuinely trying to reach agreement with the Employer.

[8] While agreement on a number of issues had been reached and the AMWU had amended its claims and the Employer had amended its responses, Mr Cummings submitted that three issues remained outstanding:

● travel time arrangements;
● wage increases; and
● allowances.

[9] The most significant of these outstanding issues is the quantum of the wage increases. The current claim from the AMWU is for a 13% wage increase over the life of the proposed three year enterprise agreement. The Employer is proposing a 10% increase over the life of the agreement.

[10] The AMWU relied on the authority of the Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia 1 (TMS) in asserting that it had meet the test of “genuinely trying to reach agreement” as contained in s.443(1)(b) of the Act.

[11] The Employer through Mr Warren, cross examined Mr Cummings on the nature of the negotiations that had taken place. It was elicited during Mr Cumming’s cross examination that at least one of the enterprise agreement meetings purported to have occurred, had not actually taken place and had been cancelled due in part to the inability of Mr Cummings to attend due to personal reasons. 2 Further, the AMWU delegate that Mr Cummings stated had advised him of the outcome of the meeting held on 3 May 2013, (Mr Cummings was unable to attend this meeting) had in fact been on annual leave that day and was not present at the meeting.

[12] The evidence of Mr Cummings for the AMWU left much to be desired in terms of an accurate recollection of events and a full knowledge of what had or had not been agreed between the parties.

[13] The Employer made a number of submissions as to why the Commission should find that the AMWU was not genuinely trying to reach an agreement. These were outlined in an email forwarded to the Commission and the AMWU on 14 May 2013.

[14] Mr Warren submitted:

● the AMWU had not provided any proper feedback on its position;
● the scheduled meeting for 17 April 2013, was cancelled at the last minute;
● the AMWU had not returned calls or messages;
● advice to the Employer of the ballot application was only provided on 13 May 2013; and
● due to similar ballot applications against other like companies this suggests the AMWU was coordinating its industrial action, rather than genuinely trying to reach agreement with the Employer.

[15] The Employer initially sought an extension under s.443(5) of the Act in regards to the notice period that the AMWU must give before its members can engage in industrial action. This claim was withdrawn at the hearing.

[16] Mr Warren submitted that the granting of a ballot order would prejudice further negotiations and that much progress had been made to date. The Employer did not call any evidence in support of its claim that the AMWU were not genuinely trying to reach an agreement. As such, there was no evidence from the Employer regarding the AMWU’s failure to respond to calls or messages, nor any evidence regarding the AMWU’s negotiations with other employers in the industry.

[17] The Full Bench in TMS at paragraphs 31 and 32 of the decision stated:

[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. [Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Print T1982; Re Media, Entertainment and Arts Alliance PR928033] It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s. 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s. 443 must be applied.

[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 expect that 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 agreement cannot be granted.

[18] The behaviour of the Union must be examined and assessed for the purpose of determining as a matter of fact whether it has been, and is, genuinely trying to reach an agreement. That is, the application is not premature when considering the extent of the negotiations.

[19] In this application there have been 10 face to face meetings between the parties at which the AMWU’s major claims have been articulated. The wage claim has been specified and remains the major point of contention. At the last meeting held on 13 May 2013, each party was left with a clear understanding of their respective positions. As such, the test enunciated by the Full Bench in TMS, regarding the articulation of claims and responses by the Applicant, in my view has been met.

[20] Mr Warren’s view that a ballot order would not assist the parties in negotiations is not shared by the AMWU. Mr Cummings evidence was that negotiations could continue irrespective of a ballot order. I am unable to conclude that the seeking of a ballot order by the AMWU is anything other than an attempt to reach an agreement with the Employer.

[21] No doubt as put by Mr Warren, the AMWU’s communication process in providing the Employer feedback on responses could have been better. It may have been preferable that the AMWU had advised the Employer earlier than it did of its intention to apply for a protected action ballot, but it cannot be said in these circumstances that this reflects on the AMWU not genuinely trying to reach an agreement. The Commission has nothing before it by way of evidence to suggest that the AMWU is other than genuinely trying to reach an agreement with the Employer.

[22] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the evidence of Mr Cummings, that the AMWU has been, and is, genuinely trying to reach an agreement with the Employer.

[23] An order [PR536621] based on the draft provided by the AMWU is issued in conjunction with this decision.

COMMISSIONER

Appearances:

A Walkaden for the AMWU

G Warren for the Respondent

Hearing details:

2013.

Sydney:

15 May 2013.

 1   ([2009] FWAFB 368)

 2   Meeting of 17 April 2013

Printed by authority of the Commonwealth Government Printer

<Price code A, PR536620>