National Union of Workers v Atlas Specialty Metals Pty Ltd

[2014] FWC 3509

[2014] FWC 3509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Atlas Specialty Metals Pty Ltd
(B2014/96)

COMMISSIONER BULL SYDNEY, 27 MAY 2014

Proposed protected action ballot by employees of Atlas Specialty Metals Pty Ltd. Employer objection; union found to be genuinely trying to reach agreement; protected ballot order issued.

[1] This is an application by the National Union of Workers (NUW) for a protected action ballot pursuant to s.437 of the Fair Work Act 2009 (the FW Act) made on 22 May 2014. This decision is given following the submissions and evidence of the Applicant and submissions of the Respondent employer Atlas Specialty Metals Pty Ltd given before the Commission on 26 May 2014.

[2] The NUW is a bargaining representative for its members, who are said to be covered by the proposed replacement agreement. There are approximately 25 employees engaged on two work sites Prestons and Beresfield in New South Wales to be covered by the proposed agreement. The previous agreement the Atlas Specialty Metals (Aust) Pty Ltd - NSW Enterprise Agreement 2009-2012 reached its nominal expiry date on 31 October 2012.

[3] Following the application being filed with the Commission, the Respondent advised that it opposed the application.

[4] The Respondent was required by the Commission to provide a written outline of its opposition which was received on Friday evening 23 May 2014. The submission stated that the application only serves to undermine the agreement negotiations and that there had been no valid responses to issues raised by the Respondent.

[5] At the hearing of this matter Mr S Mueller, appeared on behalf of the NUW. Mr S Robertson, the Respondent’s Chief Executive Officer, appeared on behalf of the Respondent.

NUW Case

[6] Attached to the NUW application was a statement of Mr Justin Cody (Exhibit A1), employed by the NUW and responsible for the negotiations of a replacement agreement for the NUW members at the Respondent’s business.

[7] According to the evidence of Mr Cody, negotiations were put on hold during 2013 due to the Respondent’s financial position. The NUW submitted its claims in December 2013 and negotiations commenced in February 2014. There have been five meetings held with the employer in 2014.

[8] In Mr Cody’s evidence he stated that at report back meetings held on 7 and 12 May 2014, members endorsed the NUW making an application before the Commission for a protected industrial action ballot. A further meeting was to be held at 11.00am on 26 May 2014. The outstanding issues relate to the quantum of the wage increases and allowances.

Respondent’s Case

[9] Mr Robertson in opposing the order sought, submitted that the employer was committed to bargaining and had made a written without prejudice offer to the NUW to settle the dispute on 5 May 2014. The offer was rejected without any reasons being provided.

[10] I note in correspondence forwarded to the Commission by the Respondent there has been further written communications between the parties since the Respondent’s written offer, a letter dated 15 May 2014 sent by the Respondent to the NUW makes reference to this correspondence. 1

[11] The Respondent’s Outline of Submissions stated that the NUW has failed to meet the good faith bargaining requirements of the FW Act. This submission was not developed any further at the hearing and no evidence was given by the Respondent to support their submissions.

[12] The Respondent also submitted in their Outline of Submissions that the NUW’s action only serves to undermine the negotiations.

The Legislation

[13] In respect to determining this matter I am required under the FW Act to issue a secret ballot order where I am satisfied that the NUW is genuinely trying to reach an agreement. The relevant legislative provisions are contained at Chapter 3 Part 3-3 Industrial Action Division 8 Subdivision B - Protected action ballot orders of the FW Act.

[14] Under s.437 a bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply to the FWC for an Order requiring a protected action ballot to be conducted (within a specified period) to determine whether employees wish to engage in particular protected industrial action for the agreement. The specific terms of s.443 are extracted below:

“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).”

(My underlining)

[15] The legislation as expressed at s.443(1) requires that FWC must make a protected action ballot order if satisfied the Applicant has been, and is, genuinely trying to reach an agreement with the employer.

Conclusion

[16] This is an application for a bargaining order, it is not indicative of whether employees will take industrial action. It is simply that prior to taking of protected industrial action that they must obtain a protected action ballot order. Whether the industrial action is taken or not is to be determined by the employees who will have the opportunity, where an order issues, to vote on whether they take protected industrial action. If that vote is successful, the NUW and their members can then determine when and if industrial action is to be taken.

[17] Each application under s.437 turns on its own facts and circumstances. The conduct of the NUW must be examined and assessed for the purpose of determining as a matter of fact whether it has been, and is, genuinely trying to reach an agreement. This demands an examination of the action taken by the NUW to ascertain if the NUW is genuinely trying to reach an agreement, as opposed to some other objective.

[18] In the NUW’s witness evidence, Mr Cody, as previously mentioned referred to a number of meetings held with the employer in 2014. It was not put to Mr Cody by the Respondent that at any of these meetings the NUW was not genuinely trying to reach agreement or that any other action taken by the NUW meant it was not genuinely trying to reach agreement.

[19] I accept that the Respondent has made an offer including a wage increase which to date, has not been acceptable to the NUW. While I accept that the taking of industrial action may have a negative effect on the parties’ negotiations this is not a matter that I am able to consider with respect to the granting or not granting of the application.

[20] Based on the evidence and cross examination of Mr Cody and there being no witness evidence proffered by the Respondent I have no reason to conclude other than the NUW is genuinely trying to reach an agreement with the Respondent.

[21] I therefore must make the order as sought by the NUW, the objection made by the Respondent is dismissed and an order will issue in the terms proposed by the NUW.

COMMISSIONER

Appearances:

Mr S Mueller for the National Union of Workers.

Mr S Robertson for the Respondent.

Hearing details:

2014.

Sydney.

26 May.

 1   Contained with Respondent’s 23 May 2014 response to FWC.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR551066>