"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Regional Publishers Pty Ltd T/A Dubbo Daily Liberal

[2010] FWA 9706

[2010] FWA 9706

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Applications for a protected action ballot Orders

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Regional Publishers Pty Ltd T/A Dubbo Daily Liberal
(B2010/3695)
Regional Publishers Pty Ltd T/A Central Western Daily
(B2010/3696)
Regional Publishers Pty Ltd T/A Maitland Mercury
(B2010/3699)
Regional Publishers Pty Ltd T/A Cessnock Advertiser
(B2010/3700)
Regional Publishers Pty Ltd T/A Northern Daily Leader
(B2010/3701)
Regional Publishers Pty Ltd T/A Singleton Argus
(B2010/3702)
Regional Publishers Pty Ltd T/A Bay Post
(B2010/3705)
Regional Publishers Pty Ltd T/A Forbes Advocate
(B2010/3706)
Regional Publishers Pty Ltd T/A Cootamundra Herald
(B2010/3707)
Regional Publishers Pty Ltd T/A Cowra Guardian
(B2010/3708)
Regional Publishers Pty Ltd T/A Goulburn Post
(B2010/3709)

COMMISSIONER CAMBRIDGE SYDNEY, 16 DECEMBER 2010

Proposed protected action ballots by employees of Regional Publishers Pty Ltd T/A Dubbo Daily Liberal and Others.

[1] The following is an edited text of the extempore Decision delivered during proceedings held in this matter on 10 December 2010.

[2] In these matters the applicant, which is the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU), seeks protected action ballot Orders in respect of its members who are employees of Regional Publishers Pty Ltd (the employer) working at different locations throughout New South Wales.

[3] The applications have been opposed today primarily in respect to the question of whether the applicant is genuinely trying to reach an agreement. The evidence and submissions made on behalf of the employer has sought to establish that the applicant has not been, and is not, genuinely trying to reach an agreement with the employer.

[4] Importantly, the evidence has revealed that a significant impasse to reaching an agreement was identified during the Parties' meeting that was held on 3 and 4 November last. Essentially, as I apprehend it, this impasse involves the issue of the preservation of redundancy benefits that were contained in previous industrial instruments and which are more beneficial than the redundancy benefits of the relevant Modern Award. The applicant has not progressed the enterprise bargaining negotiations further, in the absence of the employer's agreement to preserve, in whatever form, the more beneficial redundancy provisions which were contained in the previous industrial instruments.

[5] Having regard for the short time frame that the Act envisages for the determination of one of these matters, I believe it is appropriate to provide for an extempore determination of the contested position today. That extempore determination is provided in the following terms.

[6] There is in my view, no ambiguity or uncertainty about the impasse. It is a fairly straightforward position. The position involves the applicant seeking to maintain an established employment benefit as a fundamental component of its approach to the bargaining process. It would, however, have been highly desirable for the applicant to have articulated this position in the form of a detailed proposed agreement document. In the circumstances of this case the absence of such a proposed agreement document, although desirable, does not create the factual basis to establish an absence of genuinely trying to reach an agreement.

[7] Consequently the evidence has not established that the applicant is not genuinely trying to reach an agreement, although it has revealed that there may have been certain firm positions taken during the usual “cut and thrust” of negotiations. This is not unusual in terms of the enterprise bargaining process. It should be stressed that the applications do not require Fair Work Australia to examine and make findings in respect to the notions of good faith bargaining. Those matters could be the subject of other proceedings taken under other legislative provisions.

[8] Therefore, the applications having been made under section 437, Fair Work Australia is satisfied that the applicant has been and is genuinely trying to reach an agreement with the employer.

[9] The applications are granted. Protected action ballot Orders shall be issued [PR504951; PR504952; PR504956; PR504957: PR504958; PR504959; PR504961; PR504962; PR504963; PR504964; PR504965] accordingly. The draft Orders shall be amended to extend the timeframes for the conduct of the protected action ballots, in view of the current flood situation in New South Wales and the forthcoming Christmas and New Year period. These proceedings are now adjourned.

COMMISSIONER

Appearances:

Mr. A. Walkaden (Solicitor - AMWU) for the Applicant.

Mr. D. Brand (Solicitor - Thompsons Lawyers) for the Respondent.

Hearing details:

Friday 10 December 2010

Printed by authority of the Commonwealth Government Printer

<Price code A, PR505128>