“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Simplot Australia Pty Ltd

[2014] FWC 6486

[2014] FWC 6486

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
Simplot Australia Pty Ltd
(B2014/1265)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Simplot Australia Pty Ltd
(B2014/1266)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 16 SEPTEMBER 2014

Proposed protected action ballot of employees of Simplot Australia Pty Ltd.

[1] These are applications by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the Unions) made under s.437 of the Fair Work Act 2009 (the Act) for protected action ballot orders in relation to certain employees of Simplot Australia Pty Ltd (the Respondent).

[2] The Unions provided Statutory Declarations addressing the statutory grounds. That Statutory Declarations make it clear that the parties have met on approximately eleven occasions since 29 November 2013 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 18 August 2014 I was advised by Ms Surene King, Workplace Relations Manager for Simplot, that the Respondent opposed the ballot on the grounds that the applications and draft orders were incorrectly made for a single proposed agreement, that the questions to be put to the employees were not clear and lack specificity and because of concerns regarding the proposed method of voting.

[4] In those circumstances, I convened a hearing on 21 August 2014 to assist in determining the matter.

[5] At that hearing it became apparent that the issue of the scope of the proposed enterprise agreement(s) was a matter in dispute. The Unions proposed a single enterprise agreement covering Simplot’s production facilities, whereas Simplot preferred three separate agreements covering those facilities. Specifically, Simplot submitted that as it had issued three separate notices of employee representational rights reflecting its preferred approach, three separate applications were required to be filed by the Applicants. The Unions opposed such an approach.

[6] While the Unions relied upon a number of authorities, a common authority relied upon by both parties was the decision of a Full Bench of Fair Work Australia in MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union 1(MSS) in which the Full Bench observed that:

“[8] The Fair Work Act 2009 (FW Act) uses the expression “proposed enterprise agreement”, “proposed single-enterprise agreement” and “proposed agreement” in a number of places. An agreement may be “proposed” by an employer or it may be “proposed” by a bargaining representative of employees or there may be different and competing agreements “proposed” by both. Where a person makes an application under the FW Act in their capacity as a bargaining representative for a “proposed enterprise agreement” or “proposed single enterprise agreement”, the bargaining representative is entitled to rely on the agreement it has proposed or it may choose to make the application in relation to an agreement proposed by another bargaining representative. In this case, it was the LHMU that first “proposed” an agreement and it was the agreement proposed by the LHMU that was the “proposed single enterprise agreement” for purposes of the LHMU’s application for a protected action ballot order under s.437.”

[7] Simplot referred to the last sentence of the above extract as supporting its submission that three separate applications were required on the basis that it had first proposed such an approach. However, the key element of the Full Bench’s observation is the underlined text, which in short is that in circumstances where scope may still be a matter for bargaining, a bargaining representative making an application for a protected bargaining order “is entitled to rely on the agreement it has proposed.” In practical terms, following the approach in MSS in this matter means that it is open to the Unions to rely on the scope of their proposed agreement, i.e. a national agreement.

[8] At the hearing, Simplot also outlined its concerns regarding the proposed questions to be put to employees. The clarification provided by the Unions at the hearing addressed some of those concerns, with the remaining concerns addressed through amendments to the ballot questions agreed at the hearing.

[9] In respect of its concerns regarding the voting method, Simplot referred to s.451(2) of the Act which provides that in circumstances where the Australian Electoral Commission is the ballot agent, as is the case here, the voting method is a matter for the ballot agent to determine in consultation with the applicant and employer of the employees to be balloted. Specifically, s.451 provides that:

“451 Timetable for protected action ballot

(1) This section applies if:

(a) the protected action ballot agent is the Australian Electoral Commission; or

(b) the FWC has directed the protected action ballot agent to comply with this section.

Note: If this section does not apply, the protected action ballot agent must comply with directions given by the FWC in relation to the matters dealt with by this section (see section 450).

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted:

(a) develop a timetable for the conduct of the protected action ballot; and

(b) determine the voting method, or methods, to be used for the ballot (which cannot be a method involving a show of hands).

Note: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting.” (Emphasis added)

[10] At the hearing, the Unions acknowledged that the voting method was an issue for the ballot agent to determine in accordance with s.451 of the Act.

[11] With regard to the applications, s.443(1) of the Act provides that:

“(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.”

[12] Further, s.441(1) of the Act requires that the Fair Work Commission “must, as far as practicable, determine an application for a protected action ballot order within two working days after the application is made.”

[13] At the hearing Simplot did not dispute that bargaining had commenced, nor did it dispute that the Unions were genuinely trying to reach an agreement.

[14] Against that background, and having considered all of the issues canvassed at the hearing, at conclusion of the hearing I advised the parties that I was satisfied that the requirements of s.443(1) of the Act had been met and that therefore I was required to issue the orders sought by the Unions. Orders PR554601 and PR554602 were issued on 21 August 2014.

DEPUTY PRESIDENT

Appearances:

M. Nguyen and T. Hale for the “Automotive, Food, Metals, Engineering, Printing and

Kindred Industries Union” known as the Australian Manufacturing Workers’ Union

(AMWU).

M. Murphy for the Communications, Electrical, Electronic, Energy, Information, Postal,

Plumbing and Allied Services Union of Australia.

J. Ansell with S. King and B. Richardson for Simplot Australia Pty Ltd.

Hearing details:

2014.

Melbourne, Sydney and Brisbane (Video hearing):

August 21.

 1 (2010) 197 IR 294

Printed by authority of the Commonwealth Government Printer

<Price code A, PR555545>