National Union of Workers

[2010] FWA 9822

[2010] FWA 9822

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Union of Workers
(B2010/327)

The Australian Workers’ Union
(B2010/328)

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(B2010/3722)

v
Ricegrowers Limited trading as SunRice

VICE PRESIDENT WATSON SYDNEY, 22 DECEMBER 2010

Proposed protected action ballot by employees of Ricegrowers Limited - whether genuinely trying to reach agreement - whether proposed ballot questions sufficiently clear - Fair Work Act 2009 ss 437, 443.

Introduction

[1] This decision concerns applications for orders under s 437 of the Fair Work Act 2009 (the Act) by the National Union of Workers (NUW), The Australian Workers’ Union (AWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot of employees of Ricegrowers Limited trading as SunRice (Ricegrowers).

[2] The matters were heard in Sydney on 14 December 2010. At the hearing Mr S Mueller and Mr C Shannon represented the NUW, Ms M Whitington represented the AMWU, Mr S Crawford represented the AWU, Mr A McKinnon represented the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Mr B Hodgkinson SC represented Ricegrowers.

The relevant legislation

[3] Section 443(1) and (2) of the Act provides:

“443 When FWA must make a protected action ballot order

(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).”

[4] Section 437(1) - (3) of the Act provides:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.”

Evidence and Submissions

[5] The NUW led evidence from Mr Craig Shannon, an organiser with the NUW with responsibility for representing members employed by Ricegrowers. The AMWU led evidence from Mr Chip Eling, one of its organisers. The AWU relied on the evidence of the officials of other unions. The NUW, AWU and AMWU (the applicant unions) submit that bargaining for a new agreement commenced in September 2009. They contend that a number of meetings have taken place since that time and that the history of negotiations and the conduct of the applicant unions during the negotiations indicate that the applicant unions are genuinely trying to reach an agreement with Ricegrowers.

[6] Ricegrowers led evidence from its General Manager, People and Culture, Ms Sharyn Brown. It contends that the history of negotiations reveals that the applicant unions are not genuinely trying to reach an agreement. It contends that it had made clear to the applicant unions in October 2010 that the agreement would not be put to a vote of employees unless the bargaining representatives endorsed the Agreement. Although the bargaining representatives endorsed the proposed agreement and it was consequently put to a vote, the employees voted overwhelmingly to reject the agreement. An anonymous newsletter which recommended rejection of the Agreement was put into evidence.

[7] Shortly after the result of the ballot was declared, the applicant unions and the CEPU communicated with Ricegrowers indicating that they would seek a protected action ballot and that a new agreement must provide for the rollover of existing conditions and a wage increase of 3% per annum. This advice appeared to be at odds with other communications from employees as to the reasons for their rejection of the agreement.

[8] Ricegrowers submits the ballot results and subsequent communications are an indication that the applicant unions are not representing the views of their members to Ricegrowers.

Genuinely Trying to Reach Agreement

[9] The determination of whether the applicant unions are genuinely trying to reach an agreement involves a finding of fact based on all of the relevant circumstances. In this case there have been extensive negotiations and two failed ballots. The negotiations are well advanced. Ricegrowers relies on the rejection of the Agreement in the face of endorsement by the bargaining representatives and what it sees as unreliable or unrepresentative statements as to positions put by bargaining representatives on behalf of their members.

[10] In my view a bargaining representative may not be genuinely trying to reach an agreement if it puts positions which are at odds with the views of those it purports to represent. However on the evidence before me I am unable to reach such a conclusion. The negotiations have obviously been difficult and protracted. I am satisfied that the endorsement of the Agreement by bargaining representatives was bona fide but obviously reflected a fine balance. It is also clear that some employees, including those involved in, or close to the negotiations did not endorse the Agreement.

[11] As the result of the ballot indicates, the campaign against the Agreement carried more weight than the endorsement of it by the bargaining representatives. The employees made a decision which was open to them and effectively rebuffed the position of their representatives. In my view these circumstances do not amount to the bargaining representatives not genuinely trying to reach an agreement.

[12] After the ballot result was declared the unions conveyed a position for a new agreement which was a departure from the approach taken in the negotiations to date insofar as it sought a rollover of existing provisions rather than a completely revised agreement. Ricegrowers contends that this casts further doubt on the efforts being made by the unions to reach an agreement.

[13] In my view the position does not amount to the unions not genuinely trying to reach an agreement. The second rejection of the Agreement was a major setback for Ricegrowers - but also for the bargaining representatives. In order to continue to bargain effectively they needed to proceed with considerable caution.

[14] The position advanced by the applicant unions and CEPU in their letter of 6 December 2010 appears to be a reversion, and makes it very hard for Ricegrowers to address particular issues of concern within the previous agreement framework. However given the recent history the approach is to an extent understandable. It proposed one way forward. It did not preclude others. From Ricegrowers perspective it was unhelpful. However it did not mean that the unions were not genuinely trying to reach an agreement.

[15] In all of the circumstances I am satisfied that the union applicants have been and are genuinely trying to reach an agreement with Ricegrowers.

The questions to be put to employees

[16] Ricegrowers submitted that should the ballot orders be made, the question to be put to employees with respect to each of the applications is inappropriate due to the use of the word “indefinite” in relation to particular forms of industrial action. It contends that if employees are asked to vote with respect to taking strike action, they need to be certain of the action being proposed, and the use of the word “indefinite” does not provide employees with the level of certainty required to cast an informed vote.

[17] The questions in the ballot need to be sufficiently clear for employees to know the nature of the action they are being asked to authorise. 1 In my view the questions permit employees to know the outer limits of the action they are voting to authorise.

Conclusions

[18] I am satisfied that the applications have been made under s 437 of the Act and that each applicant union has been and remains genuinely trying to reach an agreement. I am therefore required to issue a ballot order which I will do in the terms of the applications. The orders are issued with this decision. 2

VICE PRESIDENT WATSON

Appearances:

S Mueller with C Shannon for the National Union of Workers

M Whitington for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

S Crawford for The Australian Workers’ Union

A McKinnon for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

B Hodgkinson SC for Ricegrowers Limited trading as SunRice

Hearing details:

2010.

Sydney

December 14

 1   Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 at [39]

 2   National Union of Workers v Ricegrowers Limited trading as SunRice PR505308; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Ricegrowers Limited trading as SunRice PR505309; The Australian Workers’ Union v Ricegrowers Limited trading as SunRice PR505310

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