National Union of Workers and "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Thorn Lighting Pty Ltd

[2010] FWA 4028

[2010] FWA 4028

FAIR WORK AUSTRALIA

DECISION

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

National Union of Workers and "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Thorn Lighting Pty Ltd
(B2010/2944, B2010/2935)

SENIOR DEPUTY PRESIDENT CARTWRIGHT SYDNEY, 27 MAY 2010

Proposed protected action ballot by employees of Thorn Lighting Pty Ltd.

[1] Each of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the National Union of Workers (NUW) lodged separate applications for orders for a protected action ballot among its members employed at Thorn Lighting Pty Ltd (the company). The AMWU lodged its application on 4 May 2010 and the NUW on 5 May 2010. In accordance with s. 442 of the Fair Work Act 2009 (the Act), the applications were heard at the same time on 6 May 2010. Two witnesses gave evidence and at the conclusion of the hearing I reserved my decision.

[2] Section 443 provides:

“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).

…”

[3] 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).

[4] The nominal expiry date of the existing workplace agreement was 30 April 2010. In both cases I was satisfied that the applications had been made under section 437 and the requirements of ss. 437, 438 and 440 had been met. The point at issue in the hearing, and with which this decision deals, is whether I am satisfied on the evidence that “each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

[5] The company commenced negotiations for the new enterprise agreement. 1 An AMWU “Log of Claims”,2 dated 23 March 2010 contained a series of a dot points indicating areas for negotiation, but not the nature of the Union’s claim. The NUW provided a “Log of Claims”,3 dated 31 March 2010, indicating the nature of its claims.

[6] Mr Brown gave evidence for the AMWU that the Union’s main claims were: a 6% pay rise, to change the wording of the dispute settlement procedure and to put union rights clauses back into the agreement. 4 Apart from the wage claim, the other issues currently being discussed, on Mr Brown’s evidence, are around the dispute settlement procedure and union rights.5

[7] Two or three meetings occurred from the time the unions provided the “Logs of Claims” until the applications under s. 437 were lodged. 6 Whether or not a meeting occurred on 16 April 2010, the AMWU sent the company by e-mail that day a document headed “Thorn Lighting Draft Clauses April 2010.”7 It was discussed in a meeting on 23 April 2010 that went for approximately six hours.8 Some of the proposed clauses were agreed at the meeting, some were not, and the company said it would undertake drafting on others.9 At the end of the meeting, the company tabled its wages offer in response to the Unions’ claim.10

[8] Prior to the next meeting on 30 April 2010, the company provided further information or responded on at least nine of the draft claims in the AMWU’s document of 16 April, 11 including the AMWU’s proposed union rights clause, which according to Mr Brown is one of the AMWU’s main claims and is one of the main issues currently being discussed. None of the company’s responses have been discussed.

[9] On the morning of the meeting to discuss the enterprise agreement on Friday 30 April 2010, union members met and rejected the company’s wage offer tabled on 16 April 2010. A motion was adopted to apply for a protected action ballot. 12 The meeting with the company then took place. It was scheduled for four hours but lasted one hour, of which only fifteen minutes was spent on the enterprise agreement.13 The only claim discussed was the wage issue.14 The AMWU argued for a higher wage offer and the meeting concluded on the basis that the company would consider its position on wages.15

[10] The AMWU lodged its application under s. 437 on Tuesday 4 May 2010.

[11] It is difficult to be satisfied on the basis of the evidence of one substantive meeting on 23 April 2010 and a brief discussion of only one of the main points on 30 April 2010 that the AMWU has been, and is, genuinely trying to reach an agreement with the company. This is particularly so given no discussion of the company’s response on one of the other two of the AMWU’s main claims.

[12] The NUW’s position is more difficult again. Mr Azzopardi was able to provide only limited assistance with his evidence. Given that he has participated as a NUW delegate in the “2 or 3 meetings” 16 which have taken place, I would not be able to conclude from his evidence that the NUW has been, and is, genuinely trying to reach agreement with the company. I say this in the context that the structure of s. 443 makes plain I am to be positively satisfied on this point. In the case of the NUW’s application, I am not so satisfied and must refuse to make a protected action ballot order.

[13] I have considered all the submissions and material before me in this case, but, taking everything into account, I am not satisfied as required by s. 443(1) that the AMWU has been, and is, genuinely trying to reach an agreement with Thorn Lighting Pty Ltd. It may well be that evidence of other developments since 30 April 2010 provides grounds for the required satisfaction, but on what was before me at hearing on 6 May 2010, I am not satisfied and must refuse the application under s.443(2).

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J Kennedy for the Australian Manufacturing Workers’ Union.

Mr M Valentin, for the National Union of Workers.

Ms C Brooks, of the Australian Industry Group, for Thorn Lighting Pty Ltd.

Hearing details:

2010

Sydney

May, 6

 1   Transcript PN 74.

 2   Exhibit R1.

 3   Exhibit NUW1.

 4   Transcript PN 49.

 5   Transcript PN 54-56.

 6   Transcript PN 50 and PN 81.

 7   Exhibit R2.

 8   Transcript PN 95-98.

 9   Transcript PN 99.

 10   Transcript PN 100-101.

 11   Transcript PN 85-94 and PN 106-131.

 12   Transcript PN 62.

 13   Transcript PN 132-138.

 14   Transcript PN 139.

 15   Transcript 142-145.

 16   Transcript PN 200.

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