Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Konica Minolta Business Solutions Australia Pty Limited
[2010] FWA 4818
•1 JULY 2010
[2010] FWA 4818 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Konica Minolta Business Solutions Australia Pty Limited
(B2010/3062)
SENIOR DEPUTY PRESIDENT CARTWRIGHT | SYDNEY, 1 JULY 2010 |
Proposed protected action ballot by employees of Konica Minolta Business Solutions Australia - whether genuinely trying to reach an agreement.
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied for a Protected Action Ballot Order among its member employees of Konica Minolta Business Solutions Australia Pty Limited’s Helpdesk Capability Group (HCG) and Product Specialist Group (PSG). The application stated that no existing enterprise agreement applied to these groups of employees.
[2] The application was heard in conjunction with matter B2010/3061. As in that case, Konica Minolta, represented by the Australian Industry Group (AIG),opposed the application. The Company relied on the same grounds as already dealt with in Decision PR998794, determining application B2010/3061. I adopt the reasoning and conclusions of that decision on whether the application was made as required by s.437 and on whether the CEPU sought unlawful terms in the agreement.
[3] However, one additional question remains at issue in this application; that is, whether, because of evidence on discussions about the HCG and PSG, the CEPU had been and is genuinely trying to reach an agreement with Konica Minolta for employees in the HCG and PSG.
[4] The evidence on this relates to two meetings on 29 January and 13 May 2010, and correspondence between the meeting on 13 May and prior to the application being filed on 7 June.
[5] Mr Wardrope, for the CEPU, said that at the first negotiating meeting on 29 January 2010 Konica Minolta was informed that the CEPU sought inclusion of the HCG and PSG technicians in the new agreement. 1 Mr Bowen, for Konica Minolta, said that at the 29 January meeting the NSW bargaining representative orally raised the request to include HCG and PSG in the agreement 2 and, when queried on the relevance of these groups to the agreement negotiation, “there was no particular submission made of any form.” 3
[6] As part of the wider negotiation process, on about 15 February 4 the CEPU sent a draft agreement to the Company setting out the wording which the Union wanted. 5 I cannot tell whether this draft covered the employees in question here, since it is not apparent whether they fell within the proposed classification structure, on which the definition of employees bound depends.
[7] On Mr Wardrope’s evidence, the Company has provided 4 drafts since then 6 as part of the wider negotiations. It can be reliably inferred from the evidence and conduct of this matter, that the Company’s drafts did not apply to CSG and HCG employees, who are not presently covered. That was certainly the case for the agreement draft considered on the telephone hook-up on 13 May.7
[8] After provision of the Union’s draft, several meetings took place without further discussion of HCG and PSG employees. 8
[9] Inclusion of these employees in an agreement was next raised at the telephone hook-up on 13 May. 9 At that meeting the parties went through the Company’s draft and the CEPU raised inclusion of HCG and PSG employees at the end. 10 (It is apparent from Mr Wardrope’s statement that the draft discussed on 13 May did not include them.) Mr Bowen’s evidence in chief, not dealt with in cross-examination, was that:
“What was said during that conversation?---It was a fairly limited discussion. It was at the end of the meeting. I think my recollection is that Michael Wright raised that question about it, so it appears that the company - this is my recollection - doesn't seem to regard this group unfortunately as being party to this agreement or being relevant to this agreement. The organisation has stated as such, "So we would like to pursue that still and we will write to you in that regard." There was then some comments made about wasting our time and that's something we're going to have to deal with because it's a waste of our time that we would spend time being in agreement with these guys separate to the existing discussions around field service. So we took that comment on board and that was all that was said.
Did the company have a response at that point during the conversation with Mr Wright?---Only to say again that we feel the relevance of their inclusion is not obvious, so we don't feel it's necessary to have them as an inclusion, but it wasn't a long diatribe from us. We just said, as we've stated when it was first put to us, that that still remains our position” 11
[10] Mr Wright of the CEPU then wrote to the Mr Bowen as follows:
“I refer to the above and to the bargaining meeting held on even date.
To date, the CEPU has sought an agreement covering all technical employees engaged by Konica Minolta. The CEPU notes that Konica Minolta has consistently sought a narrower scope, namely that the proposed agreement covers only service engineers.
As foreshadowed, given the progress of negotiations to date the CEPU is proposing to conduct separate bargaining for an agreement for the HSG and PSG employees. The CEPU adopts this position with no little reluctance, as it views concurrent negotiations for an agreement in respect of the service engineers and an agreement in respect of the HSG and PSG employees to be neither fair nor efficient.
Notwithstanding these concerns, in order to progress negotiations the CEPU now seeks separate agreements for these two classes of employees.
In essence, the CEPU sees the current negotiations as having forked into two paths.
Regarding HSG and PSG employees, the CEPU relies upon its original log and subsequent representations in so far as they relate to these employees.
Regarding the service engineers, the CEPU relies upon its original log and subsequent representations in so far as they relate to these employees.
We request that you advise as a matter or urgency when Konica Minolta is available to progress negotiations in respect of HSG and PSG employees.”
[11] Mr Bowen did not reply until Mr Wright sent a polite reminder on 4 June. Mr Bowen then put the Company’s position that it was unconvinced of the need for an agreement covering these groups and that it did not intend to bargain. 12 The following workday, the CEPU filed the application for a protected action ballot among HCG and PSG employees who are members of the CEPU.
[12] Section 443 relevantly provides:
(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).”
[13] Consequently, I am obliged to make an order if the requirements of s.443(1) are met, and must not make an order except in the circumstances referred to in subsection (1). That is, the structure of s.443 makes plain I am to be positively satisfied that the CEPU has been, and is, genuinely trying to reach an agreement with Konica Minolta for employees in HCG and PSG.
[14] The AIG submitted that the application in this case was premature, referring to the Full Bench decision in Total Marine. 13 I am inclined to think that is right, given that, on the evidence before me, only in Mr Wright’s letter of 13 May did the CEPU spell out the nature of its claims and that there is no indication in any of the material as to application of a classification system or wage structure for these employees.
[15] That may well be a result of how the evidence was presented in this case. The nature of these applications is that they come on with short notice, the employer rarely has the opportunity beforehand to file material and the union commonly responds on the spot to objections and evidence of which it is not on notice. The Tribunal must reach conclusions required by the statute on the evidence before it.
[16] Be that as it may, having considered all of the evidence and submissions in this case, I am not satisfied as required by s.443(1) and, not being so satisfied, under s.443(2) must not make the order sought. I decline to do so.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr A McKinnon of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Mr N Wright of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Ms N Street of the Australian Industry Group, for the respondent.
Hearing details:
2010
Sydney.
June, 8 & 9.
1 Exhibit A1 and Transcript PN 97
2 Transcript PN 227
3 Transcript PN 229
4 Transcript PN 139. See also Exhibit A1
5 Transcript PN 139
6 Transcript PN 178. See also PN 134.
7 Exhibit A1
8 Ibid
9 Ibid
10 Exhibit A1 and PN 232
11 Transcript PN232 & 233
12 Transcript PN236
13 Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368
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