"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v The Griffin Coal Mining Company Pty Ltd

[2011] FWA 8321

[2011] FWA 8321

FAIR WORK AUSTRALIA

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
The Griffin Coal Mining Company Pty Ltd
(B2011/3820)

COMMISSIONER CLOGHAN PERTH, 1 DECEMBER 2011

Proposed protected action ballot by employees of The Griffin Coal Mining Company.

[1] On 31 October 2011, the Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) (“the Applicant”) made application to Fair Work Australia (FWA) for a Protected Action Ballot Order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).

[2] The employees to be balloted are employed by The Griffin Coal Mining Company Pty Ltd (“the Employer”) in the State of Western Australia and are represented by the AMWU in negotiations for a replacement agreement for the Griffin Coal (Maintenance) Enterprise Bargaining Agreement 2005-2008 (“the Agreement”).

[3] The nominal expiry date of the Agreement was 30 September 2008.

[4] The application was first heard on 3 November 2011, proceeded to conference and subsequently adjourned to 11 November 2011. At the conclusion of the hearing on 11 November 2011, I made a determination that the AMWU had satisfied the provisions of the FW Act and an Order should issue (PR516779). These are the written reasons for issuing the Order.

[5] At the hearing, the AMWU was represented by Mr Wilson, Industrial Officer. The Employer was represented by Mr Heldsing and Ms Beaumont of Counsel on 3 and 11 November 2011 respectively.

APPLICANT’S CASE

[6] Negotiations for a replacement agreement commenced in late 2008. Bargaining between the parties has occurred on a number of occasions, some of which were assisted by a member of the Australian Industrial Relations Commission. In July 2010, the Employer went into administration and negotiations were suspended. By July 2011, the Employer had been acquired and negotiations for a replacement agreement recommenced. Currently the parties are working on what was referred to as draft nine (9) of a replacement agreement.

[7] There have been eight (8) bargaining meetings since recommencement of negotiations, however, there are significant issues outstanding between the parties. Further meetings are scheduled.

[8] The AMWU has been and is genuinely trying to reach agreement with the Employer on a replacement agreement.

EMPLOYER’S CASE

[9] At the hearing on 3 November 2011, the Employer opposed FWA making an order on the grounds that the AMWU has been, and continues, to pursue a claim for a non permitted matter. Accordingly, the application is not properly made as enterprise agreements can only be made about permitted matters.

[10] Following the adjournment on 3 November 2011, the AMWU provided to the Employer clarification and a different clause relating to contractors. Having considered the clarification provided by the AMWU and a new clause, the Employer’s representative stated that the Employer is of the view, “that there doesn’t appear to be a non permitted matter within that clause and so the contentions that we’ve raised previously are no longer on the table” 1. Consequently, the Employer does not oppose the application.

[11] The Employer’s objection to what is commonly referred to as a “rolled up” question was addressed during the hearing and, with the consent of both parties, was particularised into a series of discrete forms of industrial action to be considered by the employees to be balloted.

CONCLUSIONS

[12] I was satisfied that the requirements of the FW Act in sections 437, 438 and 440 have been met.

[13] Having considered the relevant provisions of the FW Act, submissions by the AMWU and the Employer’s position on the application, I determined that the Applicant has been and is genuinely trying to reach agreement with The Griffin Coal Mining Company Pty Ltd for a replacement enterprise agreement; on that basis, I issued Order PR516779 on 11 November 2011.

COMMISSIONER

Appearances:

Mr Wilson for the Applicant.

Mr Heldsing and Ms Beaumont of Counsel for the Respondent.

Hearing details:

2011:
Perth,
3 and 11 November.

 1   PN 29

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