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

[2012] FWA 7151

[2012] FWA 7151

FAIR WORK AUSTRALIA

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
Southern Engineering Services Pty Ltd
(B2012/981)

COMMISSIONER BULL SYDNEY, 22 AUGUST 2012

Proposed protected action ballot by employees of Southern Engineering Services Pty Ltd.

[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) as a bargaining representative. It seeks a protected action ballot order in relation to its members employed by Southern Engineering Services Pty Ltd (the Employer) that would be covered by the proposed agreement.

[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 FWA for an Order requiring a protected action ballot to be conducted (within a specified period) to determine whether employees wish to engage in particular protected industrial action for the agreement. The specific terms of s.443 are extracted below:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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 underlining)

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

[4] The matter was heard on 22 August 2012, the AMWU was represented by Ms Saunders who attended the Tribunal and the Employer was represented by Mr Smith the Group HR Manager and Mr Gakowski the Operations Manager who both appeared by telephone.

[5] Ms Saunders relied on a statement made on 17 August 2012 by Mr Jim O’Neill, an Industrial Officer of the AMWU. Mr O’Neill’s statement indicated that as a bargaining representative he had met with the Employer on behalf of the AMWU members to be covered by the proposed enterprise agreement on a number of occasions. The dates and nature of these negotiations were reflected in his statement.

[6] Ms Saunders confirmed the position put in Mr O’Neill’s statement that despite the meetings held to date with the Employer, the following items remained outstanding:

● Wages;
● Parties to the agreement; and
● Rights of union delegates.

[7] Ms Saunders submitted that while negotiations had not broken down the AMWU were genuinely trying to reach an agreement and that the order sought should be granted.

[8] Mr Smith on behalf of the Employer opposed the application stating that negotiations had not been exhausted and that the parties were close to reaching an agreement. The Employer had recently amended its counter offer and put a proposed agreement to its workforce for a vote.

[9] The Employer submitted, its employees were not aware of the question to be asked in the ballot application until being advised by the employer on receipt of the application. The Employer did not seek to cross examine Mr O’Neill or in any way take exception to the contents of his statement.

[10] For the purposes of s.443(1)(b) of the Act, I am only required to be satisfied that the AMWU has been, and is, genuinely trying to reach an agreement with the Employer. The fact that the parties are close to agreement does not prevent a protected action ballot order being sought by a bargaining agent. Such evidence of potential agreement supports the position of the AMWU that it is and has been genuinely trying to reach an agreement.

[11] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the AMWU, that the AMWU has been and is, genuinely trying to reach an agreement with the Employer. There was nothing put to question the bona fides of the AMWU’s claim to be genuinely trying to reach an agreement with the employer.

[12] It may be that as result of a proposed agreement which has been put to the workforce by the Employer for vote that the protected action ballot becomes otiose.

[13] An order [PR528160] based on the draft order provided by the AMWU is issued in conjunction with this decision.

COMMISSIONER

Appearances:

L. Saunders for the AMWU

S. Smith and S. Gakowski for Southern Engineering Services Pty Ltd

Hearing details:

2012.
Sydney.
22 July.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR528161>