Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Coates Hire Operations Pty Ltd

[2009] FWA 262

[2009] FWA 262

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
v
Coates Hire Operations Pty Ltd
(B2009/10596)

VICE PRESIDENT WATSON MELBOURNE, 10 SEPTEMBER 2009

Proposed protected action ballot by employees of Coates Hire Operations Pty Limited t/as Coates Hire Limited – specification of employees to be balloted and clarity of questions. Fair Work Act, s437.

INTRODUCTION

[1] This decision relates to an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) for an order for a protected action ballot under s437 of the Fair Work Act 2009 (the Act).

[2] The matter was heard before me on 4 September 2009. At the conclusion of the hearing the AMWU sought an opportunity to review its position and put further submissions in writing concerning the requirements of the Act for protected ballot applications. It subsequently did so on 7 and 9 September. Written submissions were filed by the employer on 8 September.

THE AMENDED APPLICATION

[3] The amended application provides more specificity of the group of employees to be balloted, excludes drivers from the ballot and modifies the question originally proposed in the application to be a series of questions concerning various forms of proposed industrial action. There are proposed to be some wording changes in the descriptions of the forms of industrial action.

[4] The amended scope clause is now proposed to be:

“5.1 Subject to clause 5.2, the types of employees to be balloted are those employees of Coates Hire Operations Pty Limited who are members of the AMWU, who would be subject to the proposed enterprise agreement, and who are employed as mechanical and associated metal trades workers, trades assistants, yardsmen or yardspersons, and yardspeople-drivers.

5.2 Any employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day this ballot order is made shall not be balloted, unless such employee has made a conditional termination of that instrument.”

[5] The amended questions to be put are now proposed to be:

“Do you, for the purpose of supporting or advancing claims for a proposed Enterprise Agreement with Coates Hire Operations Pty Limited, authorise the taking of any of the protected industrial action, or part of the protected industrial action, or all of the protected industrial action against Coates Hire Operations Pty Limited, which is authorised by this ballot, separately, concurrently and/or consecutively in the form of:

1. Indefinite or periodic bans of varying length on overtime?

Yes / No

2. Indefinite or periodic bans of varying length on call outs?

Yes / No

3. Indefinite or periodic bans of varying length on paper and administrative work required or otherwise necessary in respect of the maintenance, preparation and repair of machinery for hire

Yes / No

4. An indefinite number of work stoppages of 4 hours?

Yes / No

5. An indefinite number of work stoppages of 8 hours?

Yes / No

6. An indefinite number of work stoppages of 12 hours?

Yes / No

7. An indefinite number of work stoppages of 24 hours?

Yes / No

8. Indefinite bans on work related to specific events and/or particular customers?

Yes / No ”

[6] The amendments made by the AMWU are in response to submissions of the employer regarding these matters. The AMWU does not concede the necessity for the changes but agrees to make the changes to avoid complicating the approval of its application. To some extent the amendments are a complete answer to the objections of the employer. Objections remain however, particularly as to the wording of the question and certain forms of proposed industrial action.

[7] In my view the amendments to the specification of the groups of employees to be balloted and the questions to be put satisfy the requirement that the application and questions are expressed in a sufficiently clear manner to enable employees who will be voting in the ballot to make an informed choice on the nature of the action they are being asked to approve and its general implications.

[8] Not all details of the action are particularised. However in my view the generic descriptions are clear. Employees who vote on these questions will understand the general nature of the industrial action they are asked to approve. If action falling within the descriptions is subsequently proposed to be taken it will need to be notified to the employer in sufficiently clear terms. Union members who are covered by the ballot would have no legitimate grounds for surprise at the specific instances of action falling within these descriptions.

CONCLUSIONS

[9] For the reasons outlined above I believe that the amended application complies with the requirements of the Act. I am satisfied that all requirements are met. I make the order issued in conjunction with this decision.

VICE PRESIDENT

Appearances:

Mr G Noble for the AMWU

Mr D Lloyd of counsel for Coates Hire Pty Ltd

Hearing details:

2009.

Sydney

4 September

Printed by authority of the Commonwealth Government Printer

<Price code A, PR989166>