Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Konica Minolta Business Solutions Australia Pty Limited
[2010] FWA 4828
•30 JUNE 2010
[2010] FWA 4828 |
|
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
(B2010/3061)
SENIOR DEPUTY PRESIDENT CARTWRIGHT | SYDNEY, 30 JUNE 2010 |
Proposed protected action ballot by employees of Konica Minolta Business Solutions Australia - Engineering Employees.
[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) applied for a protected action ballot order under s. 437 of the Fair Work Act 2009 (the Act) among its member field service employees currently covered by the Konica Minolta Business Solutions Australia Pty Ltd and Australian Services Union Technical Services Enterprise Agreement 2005, which has past its nominal expiry date.
[2] The application was heard on 8 and 9 June in conjunction with a similar application for the CEPU’s members employed in the Company’s Helpdesk Capability Group and Product Specialist Group (B2010/3061). The Company, represented by the Australian Industry Group (AIG), opposed the application on a number of grounds.
[3] The first question was whether the CEPU had correctly applied under s. 437 on the basis of being a bargaining representative under s. 176 of the Act. The AIG argued that the CEPU did not meet the description of s. 176(3) and could not be a bargaining agent under s. 176(1)(b). I do not accept that conclusion or the arguments said to support it, for the reasons submitted by Mr Wright of the CEPU. I am satisfied on the basis of the material provided in support of Mr Wright’s submissions that the CEPU is able to represent the industrial interests of Konica Minolta’s field service technicians and is a bargaining representative under s. 176(1)(b).
[4] Other statutory requirements in ss. 437 to 440 being satisfied, the question to be determined was whether the Tribunal could be satisfied as required in ss. 443(1) and (2).
[5] At hearing, the AIG did not press its initial objections on issues of scope and conduct, but did rely on the submission that the CEPU was not genuinely trying to reach agreement because it sought an unlawful term at clause 10.3 of its draft agreement, as follows:
Where the employee’s representative is an ETU Shop Steward the Shop Steward shall be provided private telephone facilities to speak to an ETU official and request representation at meetings with the Employer’s representatives as soon as possible in an attempt to resolve any matter without delay.
[6] In reply, the CEPU submitted that the question of whether clause 10.3 was unlawful or not had never been raised prior to hearing. Mr McKinnon, for the CEPU, conceded that it would be wise to redraft clause 10.3 to have general application beyond ETU Shop Stewards and accordingly withdrew clause 10.3 from its draft agreement.
[7] There is some force to the AIG’s argument. I routinely drew attention to clauses of that type as potentially discriminatory in certifying agreements under the Workplace Relations Act 1996, and accepted amendments or undertakings that employee representative provisions were to be read as having general application, rather than provide rights exclusive to union representatives.
[8] However, the question on this particular draft is whether a positive statement about one representative is to be taken to be a negative statement about another and, thereby, be unlawful. I have been, and remain, sceptical about this argument. I do not accept here that at this stage of the negotiations the silence of the CEPU’s draft clause in relation to people it does not represent, and where the employer has not raised the issue, means that a positive statement carries also a reciprocal negative. If the Company held that view, it could reasonably have raised it. Indeed, in my view, the Company would be silly to agree to the clause as drafted in a national agreement to cover a range of employees. But that is a matter for negotiation and should remain so.
[9] Having considered the evidence and everything before me in this case, I am satisfied as required by s. 443 of the Act and will issue the order, as amended by Mr McKinnon at hearing.
[10] The order implementing this decision will not apply to Helpdesk Capability Group (HCG) or Product Specialist Group (PSG) employees.
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.
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<Price code A, PR998794>
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