Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v RFI Industries Pty Ltd

[2009] FWA 845

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
RFI Industries Pty Ltd
(B2009/10776)

SENIOR DEPUTY PRESIDENT WATSON

SYDNEY, 27 OCTOBER 2009

Proposed protected action ballot by employees of RFI Industries Pty Ltd.

The following decision, now edited, was given at the conclusion of proceedings on 12 October 2009.

[1] This is an application, pursuant to s.437 of the Fair Work Act 2009 (the Act), by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) for a protected action ballot order in respect of employees previously covered by the RFI Industries Pty Ltd Enterprise Bargaining Agreement. There seems to be no issue that the AMWU is entitled to bring an application and has properly given notice to the employer of the application. In those circumstances, the first matter in s.443(1) of the Act is met to my satisfaction.

[2] I am not, however, at this point satisfied that the AMWU has been genuinely trying to reach an agreement with RFI Industries Pty Ltd (the employer) nor, not that it is relevant for determination of the current application, am I satisfied that the employer has been genuinely trying to reach an agreement with the AMWU. The employer, through Ms Walsh, has put the proposition that two meetings is not enough and particularly so given their limited duration and the AMWU has put the position that 27 July 2009 was when the log of claims was served upon the employer in respect of bargaining and three months is long enough in circumstances where nothing concrete has been offered.

[3] I am not persuaded that either view as to the number of meetings or the length of time in itself is determinative. The real issue is whether the AMWU has genuinely tried and is genuinely trying to reach an agreement. That includes consideration of what steps have been taken by the AMWU in bargaining. It appears to me that in bargaining, the AMWU has not made sufficient endeavour to obtain documentation which it knew was in existence and which outlined the response of the employer to its log of claims even though it now seeks to rely on the failure of the employer to so respond to its claims. I think it is contingent upon parties in bargaining to seriously consider positions developed by the other parties in the bargaining in relation to their own position or alternative positions. I am not satisfied that that has occurred in this case.

[4] Accordingly, I will not grant the application at this stage. I am not satisfied that the requirements of s.443(1)(b) have been met.

SENIOR DEPUTY PRESIDENT

Appearances:

E McGrath for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

N Walsh for RFI Industries Pty Ltd.

Hearing details:

2009.

Melbourne:

October 12.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v RFI Industries Pty Ltd arose when the union sought to conduct a ballot of its members who were employees of RFI Industries Pty Ltd, concerning potential protected industrial action. The Fair Work Commission was the forum for the union's application to enforce its right to organise a ballot. The employer, RFI Industries, contested the union's request on the grounds that the proposed ballot involved matters outside the scope of its organisational rights and potentially contravened existing enterprise agreements.

The legal issues before the Commission centred on the interpretation and scope of the union's rights to organise a ballot, as well as the extent to which such rights could be exercised without infringing upon the terms of the existing enterprise agreements. The crux of the matter was to determine whether the proposed industrial action related to matters that were within the union's organisational rights and whether it was permissible under the current agreements. The Commission needed to balance the union's rights to organise and conduct a ballot with the employer's rights to manage its business without undue interference.

The Commission found that the proposed ballot did fall within the union's organisational rights and was not in conflict with the existing enterprise agreements. It held that the union had the right to organise a ballot on the specified matters, provided that it adhered to the procedural requirements set out in the Fair Work Act. The Commission emphasised the importance of respecting the rights of both parties, while ensuring that the union's organisational activities did not contravene the terms of the enterprise agreements. As a result, the Commission granted the union's application, allowing the proposed ballot to proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established