Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Stramit Corporation Pty Limited T/A Stramit Building Products and Taurean...

[2019] FWC 7428

[2019] FWC 7428

FAIR WORK COMMISSION

REASONS FOR 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
Stramit Corporation Pty Limited T/A Stramit Building Products and Taurean Door Systems
(B2019/1171 & B2019/1172)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 11 DECEMBER 2019

Proposed protected action ballot of employees of Stramit Corporation Pty Limited T/A Stramit Building Products and Taurean Door Systems.

[1] On 9 October 2019, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applied under s.437 of the Fair Work Act 2009 (Act) for protected action ballot orders requiring ballots to be conducted of employees of Stramit Corporation Pty Limited (Stramit) to determine whether the employees wish to engage in particular protected industrial action for proposed agreements covering two businesses operated by Stramit. The applications were heard and determined concurrently. At the conclusion of a hearing conducted on 23 October 2019, I announced my decision to make the order sought in each case. Later that day I made the orders. In announcing my decision, I said I would publish my reasons in due course. These are my reasons.

[2] On 13 September 2019, the AMWU lodged two applications under s.437 of the Act in relation to the same groups of employees to whom these applications relate. Stramit raised a number of concerns about those applications including that there had not been notification time in relation to the proposed agreements, the applications were premature and that the AMWU had not been, and was not, genuinely trying to reach an agreement. At a directions hearing, the applications were withdrawn by the AMWU. Instead, the parties would participate in two bargaining meetings facilitated by the Commission. The conduct of an official of the AMWU at the second of these bargaining meetings raised concerns about whether the AMWU is genuinely trying to reach an agreement.

[3] On 24 July 2019 Stramit issued a Notice of Employee Representational Rights for a proposed enterprise agreement covering employees working in two of its businesses, Stramit Building Products and Taurean Door Systems. The employees are currently covered by two agreements, The Stramit Building Products Knoxfield Enterprise Agreement 2016 and Taurean Door Systems (Vic) Enterprise Agreement 2017. The two businesses to which these agreements apply were previously located at different sites however since 2017 both businesses are operated from the Knoxfield site. An issue in contention between the parties in bargaining is the scope of any agreement or agreements. The AMWU wants two agreements with coverage mirroring the current agreements whereas Stramit wants one agreement covering the employees of both businesses at the Knoxfield site.

[4] At the first facilitated bargaining meeting on 25 September 2019 the parties agreed to put aside some of the more contentious issues, including coverage, in the interim so that some progress could be made in relation to other issues. 1 Parties exchanged claims and some common ground was established.2 At the conclusion of the meeting, Stramit representatives agreed to provide a draft of its proposed single agreement in advance of the next day so that the agreement could be discussed at that meeting.3

[5] The second facilitated bargaining meeting on 9 October 2019 was attended by the former AMWU organiser for the Knoxfield site, Mr Lou Malgeri. Mr Malgeri is the Assistant State Secretary of the Victorian branch of the AMWU. Mr Malgeri had not been involved in bargaining for the proposed agreements the subject of these applications. Mr Malgeri only attended the very first bargaining meeting in July with Mr Lewis Farrugia, the current AMWU organiser for the Knoxfield site. 4 Stramit complied with its commitment to provide a draft of the proposed single agreement. The conversation at the second meeting quickly became heated5 and the meeting ended less than an hour after it began after AMWU representatives staged a walk out. During the meeting Mr Malgeri twice said words to the effect of ‘We’re here to get a [protected action ballot order].’6

[6] Later that day on 9 October 2019 the AMWU lodged the applications the subject of this decision. In an email to my associate dated 10 October 2019, Stramit informed my Associate that while it had undertaken not to object to any future applications if the AMWU participated in two Member facilitated bargaining meetings, Stramit believe that the AMWU did not participate in good faith and genuinely attempt to reach an agreement at the second facilitated bargaining meeting. 7 Stramit also maintained its concerns set out in the email dated 17 September 2019 in relation to the previous applications which included that the AMWU had not been, and is not, genuinely trying to reach an agreement.

[7] The evidence discloses the following in relation to the behaviour of Mr Malgeri in the second facilitated bargaining meeting. Mr Farrugia gave evidence that he brought Mr Malgeri to the meeting as he believed that progress was not being made in relation to the AMWU’s log of claims. 8 Mr Farrugia gave evidence that he told Mr Malgeri that he needed to take part in the negotiations as Mr Farrugia was unable to get a formal response to their log of claims.9

[8] Mr Malgeri gave evidence that he believed that there had been a change in attitude towards the union at the Knoxfield site. This view was formed partly because Stramit had never previously required the AMWU to provide right of entry permits however were now insistent that the AMWU provide them for all visits. Mr Malgeri gave evidence that this led him to a conclusion that Stramit was instigating a campaign against the union in the lead up to the negotiations for the next enterprise agreements. 10 Mr Malgeri stated that his approach to negotiations was informed by this perceived change in attitude on the part of the management to the AMWU activity on site.11 Mr Malgeri said he wanted Stramit to know that the members of the AMWU were not happy and that they wanted clarity as to Stramit’s position and to move negotiations along.12 Importantly, Mr Malgeri gave evidence that he did not know that the applications earlier mentioned had been discontinued, and that he believed that the second facilitated bargaining meeting was in relation to those two applications.13 I accept Mr Malgeri’s evidence and his explanation for the comments made. His evidence was not contested, and it has a tendency to explain his utterances earlier noted.

[9] In the circumstances I am satisfied that a valid application has been made, including that there was a notification time in relation to the proposed agreements in each case (noting that scope is an issue for bargaining), and I am also satisfied on the evidence including that contained in the statutory declaration accompanying these applications that the AMWU has been and is, in each case, genuinely trying to reach an agreement with the employer.

DEPUTY PRESIDENT

Appearances:

B Terzic for the Applicant

S McCartney for the Respondent

Hearing details:

2019

Melbourne

October 23

Printed by authority of the Commonwealth Government Printer

<PR713771>

 1   Transcript of proceedings dated 23 October 2019 at PN114 and Exhibit 4, Correspondence dated 24/09/2019 From Mr Terzic to Mr Pill and Others

 2   Transcript of proceedings dated 23 October 2019 PN118, F34B Statutory Declaration by Mr Lewis Farrugia declared on 9 October 2019 lodged in support of application

 3   Transcript of proceedings dated 23 October 2019 PN123 – PN126 and PN153- PN156

 4   Ibid. PN215

 5   Ibid. PN136

 6   Ibid. PN238

 7   Email to my Associate dated 10 October 2019

 8   Ibid. PN131

 9   Ibid.

 10   Ibid. PN207

 11   Ibid. PN231

 12   Ibid. PN216 - PN217

 13   Ibid. PN217