Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v Third Zeton Pty Ltd t/a Tieman Tankers

[2019] FWC 3453

[2019] FWC 3453

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
Third Zeton Pty Ltd t/a Tieman Tankers
(B2019/390)

DEPUTY PRESIDENT COLMAN MELBOURNE, 21 MAY 2019

Proposed protected action ballot of employees of Third Zeton Pty Ltd

[1] On 15 May 2019 an application was made by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), under s 437 of the Fair Work Act 2009 (Act). It sought to have the Commission make a protected action ballot order in relation to certain employees of Third Zeton Pty Ltd, which trades as Tieman Tankers (Tieman).

[2] Tieman opposed the making of a protected action ballot order, and provided a written submission explaining the basis of its opposition. The matter was allocated to my chambers and I listed the application for hearing at 4.00pm on 20 May 2019. Mr Barry Terzic, industrial officer of the AMWU, appeared for the union. Mr Barry Greig appeared for the company. At the conclusion of the hearing I advised the parties that I was satisfied that the requirements for the issuing of an order were satisfied and that I would issue an order later that evening, with written reasons to follow the next day. The following are my reasons for issuing the order.

[3] Briefly stated, the positions of the parties were as follows. The AMWU contended that its application and the statutory declaration of Mr Raoul Wainwright demonstrated that all of the statutory requirements for the making of a protected action ballot order had been satisfied. It submitted that a valid application had been made under s 437, and that there had been a ‘notification time’ in relation to the proposed agreement. The union said that it had been and was genuinely trying to reach agreement with the employer of the employees to be balloted, as required by s 443(1)(b). It noted that the enterprise agreement that currently covers the employees in question, the Tieman Industries Pty Ltd/AMWU Victoria Collective Workplace Agreement 2014 (2014 Agreement), reached its nominal expiry date on 30 June 2017, and that the restriction in s 438 of the Act did not apply. The union further said that it had complied with s 440 by providing a copy of the application to the employer and to the Australian Electoral Commission. It contended that the Commission was required to make the order sought.

[4] Tieman objected to the application on the basis that, in its view, the union was not, and had not been, genuinely seeking to reach an agreement with it. First, it said that this lack of genuineness was reflected in the union’s claims, in particular the wage increases it sought of 7%, 5% and 5% over the next three years. The company said that these and other claims were excessive and that the company could not afford them. Secondly, Tieman said that in early 2018 it had reached agreement with the union and employees to adjust working conditions to ensure the survival of the company, which had been in difficult financial circumstances. Part of this arrangement, which was also approved by a show of hands of employees, was that only a 3% wage increase would be afforded in July of 2019. Thirdly, the company said that the union had only presented the one log of claims and that, unlike the company, it had not revised its position. Tieman said that all of these matters pointed to a lack of genuineness on the part of the union.

[5] The AMWU submitted that none of the company’s contentions affected the analysis of whether the union had been and was genuinely trying to reach an agreement with Tieman. It maintained that its efforts to reach agreement with Tieman had been and were genuine. It had served a log of claims on the company on or about 5 April 2019, there had been three negotiation meetings at which these claims had been discussed, and that the parties remain apart on a number of key issues, including wage increases, redundancy benefits and rostered days off. The sworn evidence of Mr Borg, the AMWU organiser for the site, was that the union had in fact compromised on wages, reducing its claim to five percent increases in each of two years. Mr Borg also affirmed that the union’s objective was to reach an agreement with the company on the terms of a new enterprise agreement.

[6] Section 443(1)(b) requires that, before a protected action ballot order can be issued, the Commission must be satisfied that the applicant union has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted. The union filed and led sworn evidence that it had been, and was, genuinely trying to reach agreement with Tieman. I accept this evidence. The fact that the company considers the union’s claims to be excessive does not call into question the genuineness of the union’s efforts to reach agreement. Perhaps if the claims advanced were entirely fanciful there might be some question about whether an agreement was genuinely being sought, but that is not the case here. In any event, negotiations are at a relatively early stage and a log of claims often reflects an opening position. This was evidently the case here. I accept Mr Borg’s evidence that the union has already revised its position and reduced its wages claim.

[7] I appreciate that the company believed it had an understanding about the wage increases that would apply this year. However this understanding was not formalised in the terms of an enterprise agreement. The 2018 arrangement does not mean that the union’s present efforts to reach an agreement with the company are not genuine. It does not prevent the union from taking the first step to attract statutory protection for industrial action in support of new conditions.

[8] There have been three enterprise bargaining meetings at which the terms of the proposed agreement have been discussed. Clearly the parties remain a distance apart on key conditions that are to be included in the agreement but the fact that the current positions of the parties is known also supports a conclusion that genuine bargaining for an agreement is and has been taking place.

[9] There is no evidence or suggestion that the union is pursuing some ulterior or extraneous purpose. It is clear that the union wants to enter into a new enterprise agreement with the company and is trying to reach agreement with it.

[10] Having considered all of the materials filed and the evidence given in this matter, as well as the submissions of the parties, I was satisfied at the time of making the order that the AMWU had been, and was, genuinely trying to reach agreement with Tieman. I was also satisfied that there had been a ‘notification time’ in relation to the proposed agreement, namely 26 February 2019, when the notices of employee representational rights were issued to employees. The nominal expiry date of the 2014 Agreement has passed and the restriction in s 438 was therefore not engaged. All of the requirements for the making of a protected action ballot order had been met.

[11] Accordingly, the Commission was required under s 443 of the Act to make a protected action ballot order.

[12] An order was issue separately last night in PR708462.

DEPUTY PRESIDENT

Appearances:

B. Terzic for the Australian Manufacturing Workers’ Union

B. Greig for Third Zeton Pty Ltd

Hearing details:

2019

Melbourne

20 May

Printed by authority of the Commonwealth Government Printer

<PR708461>