"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Sandvik Mining and Construction Australia Pty Ltd
[2012] FWA 5920
•13 JULY 2012
[2012] FWA 5920 |
|
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
Sandvik Mining and Construction Australia Pty Ltd
(B2012/1079)
COMMISSIONER MACDONALD | SYDNEY, 13 JULY 2012 |
Application made for protected action ballot by employees of Sandvik Mining and Construction Australia Pty Ltd - decision made on the papers - application granted.
BACKGROUND
An application for a protected action ballot order was made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The application was made on 4 July.
[1] The application was made pursuant to section 437 of the Fair work Act 2009 (the Act) on behalf of the AMWU members employed at Sandvik Mining and Construction Australia Pty Ltd (the Company).
[2] The company responded in writing on 5 July (Thursday) to the section 437 application, to my office. The correspondence advised of the Company’s objection to the application and advised that “due to the short notice a representative from Sandvik will be unable to attend the hearing; however we wish to make the following points for the assistance of the Commission”. The correspondence was signed off by Troy Montgomery.
[3] My office then sought to make contact with Mr Montgomery because no hearing had been set.
[4] Subsequently, contact was made and Mr Montgomery (stationed in Queensland) advised that if a hearing was held, there would be no attendance by a representative for the Company.
[5] Accordingly, I have decided to determine the AMWU’s application on the papers, with the cognizance of both parties.
CONSIDERATION
Prerequisites for Section 437 Application
[6] There are certain prerequisites for obtaining a protected action ballot order. Those prerequisites are considered below.
[7] The AMWU is a bargaining representative for employees and hence is entitled to make its application for protected action ballot order: section 437(1). The application is not in respect of a Greenfields agreement or multi-enterprise agreement operations: s.437(2).
[8] The application specifies the group or groups of employees to be balloted: s.437(3)(a) and the question to be put to the employees to be balloted including the nature of the proposed industrial action: s.437(3)(b).
[9] The Australian Electoral Commission is conducting the ballot and hence s.437(4) has no application.
[10] The Company did not submit that the application infringes s.437(5).
[11] The AMWU complied with sections 441 and 440. The AMWU had provided the application to the Company and the Australian Electoral Commission.
[12] The application was not a multiple application and hence s.442 did not come in for consideration.
[13] Section 443 is headed: When FWA Must Make A Protected Action Ballot Order. There are two limbs to s.443(1). The first limb is satisfied in that an application has been made for a protected action ballot order: s.443(1)(a).
[14] The second limb requires that FWA must be satisfied that an applicant is genuinely trying to reach an agreement with the employer of the employees to be balloted: s.443(1)(b).
[15] The Company’s correspondence of 5 July 2012, did not, per se, argue that the AMWU was not genuinely trying to reach an agreement. Be that as it is, I set out below information from the witness statement of Mr Steven Carlson of the state of the negotiations between the AMWU and the Company.
[16] Mr Carlson is an employee of the Company and a delegate for the AMWU. He deposed that the current collective agreement had expired on 30 June 2012: Sandvik Mining and Construction Pty Ltd - Wollongong Workshops and Stores Operation Enterprise Agreement 2012-2012.
[17] The AMWU presented a claim to the Company which included (but was not limited to) the following items: Wages - Redundancy - Long Service Leave - Laundry Allowance - Overtime Rates - RDO’s - Shift Allowance - Pay Out of Sick Leave.
[18] The AMWU official, Mr John Stewart, and delegates held negotiations with the Company on:
1, 10, 21 February; 1 March; 25, 30 May; 7, 13 and 25 June 2012.
[19] The AMWU has been willing to discuss its claim with the Company, Mr Carlson said, and the AMWU has duly considered any offer or counter proposal which the Company has made.
[20] In considering whether the AMWU has been genuinely trying to reach an agreement, as required under section 443(1)(b), I have turned to the meaning of “genuinely try to reach an agreement” as considered by the Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia. 1
“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. 2 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 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.”
[21] In my view, the above evidence as to the negotiations that have taken place, is evidence of the type of negotiations contemplated by the Full Bench extract set out above and hence the AMWU has been genuinely trying to reach an agreement.
CONCLUSION
[22] This decision concerns an objection by the company to an application for protected action ballot order by the AMWU.
[23] Having considered the objection raised by the Company, I will grant the AMWU application for a protected action ballot order, for the reasons set out above.
COMMISSIONER
1 (2009) FWAFB 368
Printed by authority of the Commonwealth Government Printer
<Price code A, PR526248>
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