Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v H J Heinz Company Australia Ltd (Echuca Site)
[2009] FWA 322
•22 SEPTEMBER 2009
[2009] FWA 322 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
H J Heinz Company Australia Ltd (Echuca Site)
(B2009/10666)
COMMISSIONER WHELAN | MELBOURNE, 22 SEPTEMBER 2009 |
Section 437 application for a protected action ballot; service of application; genuinely trying to reach agreement.
[1] This is an application for a protected action ballot of employees of H J Heinz Aust Ltd at their Echuca site. The application was granted on 17 September 2009 1. During the course of the hearing a number of issues were raised by the respondent and these are my reasons for granting the application.
Compliance with section 440
[2] The application was lodged with Fair Work Australia at 9.11 a.m. on Wednesday 16 September 2009. At about the same time a copy was sent by fax to Ms Yates at a number for Heinz Aust Pty Ltd at Girgarre in Victoria. The application actually relates to employees at the Echuca site and not Girgarre but Ms Yates, to whom it was addressed, is the HR Manager for both sites.
[3] Unfortunately Ms Yates was on leave on the day and the application was simply put in her pigeon hole. It was not until approximately 12.30 p.m., when the notice of listing was received at the site that the application was brought to the attention of the Echuca site manager.
[4] The company submitted that the union had not complied with the requirements of section 440 and therefore Fair Work Australia could not hear the application.
[5] Sub-rule 9.2(e) of the Fair Work Australia Rules 2009 deals with how service must be effected by facsimile transmission. It requires that the transmission must be either a facsimile number:
(i) currently published by the party being served as his, her or its facsimile number; or
(ii) advised by the party being served as his, her or its facsimile number in response to a request for a facsimile number made immediately before the transmission of the document; or
(iii) appearing as the facsimile number of the party being served on a document lodged with Fair Work Australia by that party in the same matter;
provided that a transmission record showing the successful transmission is retained and produced if required by Fair Work Australia.
[6] The union produced a copy of the transmission report and correspondence from Ms Yates on HJ Heinz Co Australia Ltd letterhead containing the number to which the application was sent.
[7] I am therefore satisfied that service of the application was effected by the applicant in accordance with the rules.
Has the union been, and is the union currently, genuinely trying to each an agreement?
[8] The evidence of Mr Hale was that shortly before the expiry of the current agreement the union met with its members and developed a log of claims which was served on the employer. A document dated 6 July 2009 was produced.
[9] The union and the company have met on about six occasions since then and both the union’s log and matters raised by the company have been discussed. Some issues have been resolved but the main outstanding issues concern the hours and patterns of shift work and the wages under the new agreement.
[10] The respondent raised a number of issues which it said indicated that the union was not genuinely trying to reach an agreement.
[11] First, it was put that the union has not giving genuine consideration to the company’s proposal to move to an eight-hour shift pattern. It also referred to a notice put out by the union advising employees not to respond to the employer’s proposal for eight-hour shifts and accusing the employer of not bargaining in good faith.
[12] Second, it was put that the union were not genuinely trying to reach an agreement because on 1 September 2009 they had provided draft clauses to the employer about matters not contained in the log of claims.
[13] Third, the employer contended that the union was proposing a flexibility clause which was not consistent with the model clause or the requirements of the Act.
[14] Last, it was submitted that the union were not genuinely trying to reach an agreement because this application was premature.
Conclusions
[15] It is apparent that the parties are in disagreement about the issue of shift hours and patterns. Indeed, the employer has lodged a dispute under the dispute resolution procedures of the current agreement with Fair Work Australia about the issue. Failure to reach agreement on this matter, and having a strong position on it, is not in my view indicative of a lack of commitment by the union to trying to reach an agreement.
[16] Unlike the situation in the United States, where an employer cannot communicate about issues in dispute with its employees during a bargaining process, there is nothing to prevent either the union or the company from canvassing the views of employees on shift hours. Ultimately the parties will either reach agreement on the issue or the employees will indicate their position in a vote.
[17] The clauses referred to as ‘new matters’ in the communication of 1 September 2009 relate to ‘relationship with the parent awards’, ‘dispute resolution’ and ‘workplace flexibility’. These are all matters which the agreement will need to address even if they are not spelt out in the log of claims. I do not regard the union providing these as an indication that they are acting capriciously or not genuinely trying to reach agreement.
[18] The flexibility clause does not place restrictions on what matters might be the subject of an individual flexibility agreement provided they are permitted or not unlawful. While the Act provides a model clause, section 203 does not prescribe what terms of the agreement must be subject to the individual flexibility clause. The Act merely provides that if the parties cannot reach agreement, the model flexibility clause is taken to be a clause of the Agreement.
[19] The content of the flexibility clause is therefore a matter for negotiation between the parties provided the provisions of section 203 are not breached.
[20] Last, the Act does not require that bargaining representatives must bargain to a standstill before making a protected action ballot application. A failure to try to reach agreement at all will clearly not be genuinely trying to reach agreement but there is no specific stage in the negotiations which must be reached before an application can be made.
[21] On all the material before me I am satisfied that the applicant has met the statutory requirements for an application to be granted and for an order to be made.
COMMISSIONER
Appearances:
J. Wieladek and T. Hale for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
M. Gibbs with R. Cole and M. Yates for H J Heinz Aust Ltd
Hearing details:
2009.
Melbourne:
September 17.
1 PR989332
Printed by authority of the Commonwealth Government Printer
<Price code A, PR989337>
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