"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v SPC Ardmona Operations Limited
[2009] FWA 1521
•4 DECEMBER 2009
[2009] FWA 1521 |
|
DECISION |
Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot
v
SPC Ardmona Operations Limited
(B2009/11068)
COMMISSIONER CRIBB | MELBOURNE, 4 DECEMBER 2009 |
Application to extend the 30 day period in B2009/10785.
[1] The following decision, now edited, was given in transcript on 2 December 2009:
[2] This matter is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Union) to extend the 30 day period in which industrial action is authorised by a protected action ballot. The application was made on 19 November 2009, pursuant to s.459 of the Fair Work Act 2009 (the Act) and it relates to protected industrial action by members of the AMWU employed by SPC Ardmona Operations Limited (the Company) at its Shepparton and Mooroopna plants.
[3] A protected ballot order was made on 15 October 2009 and the ballot declared on 22 October 2009 with a majority voting to endorse the proposed forms of protected industrial action.
[4] No protected industrial action has been taken. There was witness evidence from both Mr Bertolus, Group Employee Relations Manager for the Company and Mr Hefford, Organiser with the Union regarding the negotiations for a new collective agreement. There had been further negotiations between the parties on 5 November 2009 1 and on 10 November 20092. At the latter meeting, the Company put its final offer. This offer was recommended by the Union to its members over 3 meetings held on 18 November 2009. The Union’s members rejected the Company’s offer and passed a resolution instructing the Union to initiate industrial action in support of their claims. The collective agreement containing the Company’s offer was put to the employees in a postal ballot. The agreement was rejected by the employees.
[5] In support of its application the Union stated that it was still trying to reach agreement with the Company. It was said that the members were still unhappy with certain clauses in the proposed agreement and that they were seeking to take protected action to further their claims.
[6] On the other hand, the Australian Industry Group, on behalf of the Company, opposed the Union’s application. This was on two main grounds. The first was that, if the extension was granted a large number of seasonal employees would be disenfranchised and denied their democratic right to vote as to whether they wanted to take industrial action. This was due to their having been employed since the roll of voters was last compiled. Therefore, 250 or so new employees would have this right extinguished if the extension was granted. It was submitted that these employees should be allowed their democratic right to vote either in favour or against the taking of industrial action. It was Mr Bertolus’ evidence that 437 employees were on the roll of voters and that, as of 1 December 2009, there were now 570 employees. By about 7 December 2009, it was stated that there would be a further 120 seasonal employees. Another 400 seasonal employees were also expected in mid January 2010 and an extra thousand by the end of January 2010. These numbers would then scale back to about 800 up until the end of May 2010 and then decrease rapidly back to the permanent workforce number. 3
[7] The second ground of the Company’s objection was that there were other factors at play internally within the Union/Union membership. These were said to have been the cause of the change in the Union’s position from supporting the agreement to opposing the agreement when it was put to the employees formally via a postal ballot. It was also argued that a minority of members would be extinguishing the rights of the larger majority of members to decide whether to continue to take industrial action in the future.
[8] Finally, it was submitted that, for these reasons, the Union’s application should not be granted. It was further contended that it would be more appropriate for the Union to seek a fresh ballot, so that, if it was authorised, all of the Company’s employees would have had the right to vote.
[9] Section 459(3) of the Act states:
“(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and
(b) the period has not previously been extended.”
[10] The factual pre-conditions to the exercise of discretion are contained in section 459(3)(a) and (b) of the Act set out above.
[11] On the basis of the material before me, I find that the factual pre-conditions have been met.
[12] Contained in section 459(3) of the Act is discretion for Fair Work Australia (FWA) to not approve an application to extend the 30 day period. The Company’s submissions were directed towards FWA not exercising its discretion and refusing the application.
[13] The ability for the ballot order to be extended is contained in section 459(3). This section is founded in s.459(1) which refers back to the original (first) ballot order process. The scheme of the Act appears to provide for an extension of something that was done previously ie. a process that commenced with a roll of voters, a vote etc. It does not provide for, or require, a fresh roll of voters or a fresh ballot. The extension provided by the Act is for 30 days only and no further extensions are possible. Therefore, after the second 30 day period, a fresh ballot order application is necessary.
[14] The way that the Act is structured would appear to address the issues raised by the Company regarding potential changes in the numbers of employees and the possibility of disenfranchising employees. This is because there can only be one extension sought, and granted, and it would be for 30 days. After that, the process would need to be re-commenced with a new application for protected ballot orders made.
[15] On this basis, I am prepared to exercise my discretion and order that the 30 day period, referred to in section 459(1)(d)(i) of the Act, be extended by a further 30 days. The extension period will operate from 21 November 2009 to 20 December 2009.
COMMISSIONER
1 Exhibit R2
2 Exhibit R1
3 Transcript PN 99, 106 - 116
Printed by authority of the Commonwealth Government Printer
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