Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kimberly-Clark Australia Pty Limited

[2018] FWC 4157

[2018] FWC 4157

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Kimberly-Clark Australia Pty Limited
(B2018/580)

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Kimberly-Clark Australia Pty Limited
(B2018/581)

COMMISSIONER PLATT ADELAIDE, 12 JULY 2018

Proposed protected action ballot of employees of Kimberly-Clark Australia Pty Limited – requirements for genuinely trying to reach agreement discussed – application dismissed.

[1] On 10 July 2018, an application was made by both the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) seeking a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (the Act) in relation to employees of Kimberly-Clark Australia Pty Limited (KCA) to determine whether eligible employees wish to engage in specified protected industrial action for a proposed enterprise agreement.

[2] A hearing was conducted on 12 July 2018. By agreement the matters were heard concurrently.

[3] Mr Paul Scudds appeared on behalf of the CEPU and Mr Mark Plunkett appeared on behalf of the AMWU. KCA was represented by Mr Andrew Farr. A grant of permission was made pursuant to s.596.

[4] KCA objected to the applications on the basis that the Applicant’s had not been genuinely trying to reach agreement.

[5] Mr Scudds submitted a statutory declaration in the Form F34B which accompanied the Application. Mr Scudds also gave evidence that:

•  The parties had been bargaining for an Agreement in 2016 and last met in mid-2016. At that point the parties agreed that if any party wanted to recommence bargaining they could advise the others.

•  No formal bargaining occurred between mid-2016 and 3 November 2017.

•  The parties next met on 1 May 2018. There was discussion about a number of topics including a global restructure, impact of a recent decision regarding personal leave, if an ‘interest based bargaining’ approach should be adopted and the issuance of a new NERR to ensure compliance with the Act.

•  A further meeting occurred on 5 June 2018. There was a presentation by the KCA Maintenance Manager and a discussion about if the matters which were agreed in principle in the previous discussions were still agreed.

•  A new NERR was distributed on 8 June 2018.

•  On 27 June 2018, KCA cancelled a bargaining meeting planned for 12 July 2017.

•  On 4 July the Applicant’s tried to secure a new meeting date.

•  On 11 July KCA proposed some dates.

•  A bargaining meeting is scheduled for 26 July 2018.

[6] Mr Plunkett provided a statutory declaration in almost the same terms as Mr Scudds. His evidence mirrors that of Mr Scudds.

[7] KCA did not dispute the evidence of Mr Scudds or Mr Plunkett or seek to cross-examine them.

[8] A statement from Ms Hayley Dunn (HR Manager) was submitted on behalf of KCA. The Applicants did not seek the cross-examine Ms Dunn and her evidence is not in dispute. Ms Dunn’s evidence is consistent with the evidence of Mr Scudds and Mr Plunkett, and explains why a meeting set for 12 July 2018 had to be postponed.

[9] The Applicants provided evidence that the requirements of s.44 had been met. I accept that evidence.

[10] The CEPU and AMWU contended that the PABO application meets the requirements of s.443. KCA contends that the evidence does not support a finding under s.443(1)(b).

Genuinely trying to reach agreement

[11] Section 443(1)(b) requires that the Commission be satisfied that each Applicant for a PABO “has been, and is genuinely trying to reach agreement with the employer of the employees who are to be balloted.”

[12] The question is whether the conduct of the Applicant’s is sufficient that they can be said to be genuinely trying to reach agreement.

[13] In J.J Richards & Sons Pty Ltd v Fair Work Australia¹JusticeFlick held that at a minimum, the applicant for a PABO must have:

“approached the employer and informed the employer of the general ambit of that for which agreement is sought, and the employer has foreshadowed – even in the most general of terms – its attitude as to the proposed agreement.

…

It is difficult to conclude that any person can try and reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement.”

[14] It appears to me that the bargaining process undertaken prior to mid-2016 have ceased. This can be inferred from:

•  The long period between the end of formal bargaining in mid-2016 and the communications to KCA in November 2017;

•  The issuance of a new NERR on 8 June 2018; and

•  The question put in the 1 May meeting as to whether agreements in principles from mid-2016 would still apply.

[15] The most recent round of bargaining has not yet resulted in the parties exchanging positions. Whilst KCA has cancelled a proposed meeting and took a week to agree an alternative I do not think it can be said that KCA is being obstructive at this point. No application has been made for bargaining orders.

[16] Based on the evidence before me, at this point in time, the Applicants have not met the requirements of J.J Richards & Sons Pty Ltd v Fair Work Australia, and for that reason I do not believe they have met the requirements of s.433 and the Applications are therefore dismissed.

COMMISSIONER

Appearances:

P Scudds on behalf of CEPU.

M Plunkett on behalf of AMWU.

A Farr on behalf of Kimberly-Clark Australia Pty Limited.

Hearing (telephone) details:

2018.

Adelaide:

July 12.

Printed by authority of the Commonwealth Government Printer

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1 J.J Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [58] [59].