“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Silliker Australia Pty Ltd
[2013] FWC 1815
•25 MARCH 2013
[2013] FWC 1815 |
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)
v
Silliker Australia Pty Ltd
(B2013/735)
COMMISSIONER ROE | MELBOURNE, 25 MARCH 2013 |
Proposed protected action ballot by employees of Silliker Australia Pty Ltd.
[1] This is an application for a protected action ballot order by members of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) employed by Silliker Australia Pty Ltd (the Employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).
[2] The Applicant seeks to ballot employees of the Employer who are members of the AMWU who would be covered by the proposed enterprise agreement, in Victoria, New South Wales and Western Australia.
[3] In considering this matter I must apply s.443 of the Act which provides:
“443 When the FWC must make a protected action ballot order
(1) The 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) the 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) The 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).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
[4] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I am satisfied that the current Agreement reached its nominal expiry date on 30 September 2012. Section 438 of the Act is satisfied.
[5] I am satisfied that the Employer received the Application as required by Section 440 of the Act. The Employer was advised of the hearing of the Application.
[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The Employer advised my Associate in writing that they opposed the Application on the grounds that they believed an agreement on outstanding matters may be reached if some further time was given for a meeting scheduled for next week to take its course. I received submissions and accompanying material from Ms Donnellan on behalf of the AMWU which demonstrates that bargaining has actively proceeded since November 2012. Ms Donnellan submitted and Mr Wallace for the employer agreed that:
- a notice of representational rights was issued in October 2012
- there had been 9 bargaining meetings since November 2012
- both parties considered and responded to the claims of the other party and both parties altered their positions
- a number of matters have been agreed and in respect of the outstanding items there have been discussions
- both parties are prepared to continue to meet in a genuine attempt to resolve the outstanding differences
- the next meeting is scheduled for 28 March 2013
[7] I am satisfied that the AMWU is genuinely trying to reach agreement with the Employer on behalf of the employees who are to be balloted. I proposed some minor amendments for clarity to the draft order which were accepted by the AMWU. I also proposed in light of the submissions of the employer and the AMWU that the ballot not occur prior to 22 April 2013 nor later than 29 April 2013. This proposal was accepted by the AMWU.
[8] I am satisfied that the proposed orders meet the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft orders therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.
[9] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AMWU.
COMMISSIONER
Appearances:
Ms A Donnellan appeared for the AMWU
Mr Wallace appeared for the Repondent
Hearing details:
2013
Melbourne
March 22
Printed by authority of the Commonwealth Government Printer
<Price code A, PR535109>
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