National Union of Workers v Australasian Food Group Pty Ltd

[2014] FWC 2552

[2014] FWC 2552

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Australasian Food Group Pty Ltd
(B2014/702)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 15 APRIL 2014

Proposed protected action ballot by employees of Australasian Food Group Pty Ltd.

[1] This is an application by the National Union of Workers (NUW) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Australasian Food Group Pty Ltd (AFG). The application was made to the Fair Work Commission (the Commission) on 7 April 2014.

[2] The NUW provided a Statutory Declaration on 10 April 2014 addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately seven occasions since it served a log of claims on AFG on or about 29 January 2014 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 14 April 2014 Mr Adam Whyte, People and Performance Manager at AFG, advised that AFG would be opposing the application for a protected action ballot order on the grounds that the parties had been negotiating towards an agreement and that the application was premature.

[4] In the circumstances, I convened a hearing on 15 April 2014 to assist in determining the matter.

[5] At that hearing, Mr Portelli, for the NUW, outlined the history of bargaining since the NUW served its log of claims on AFG in late January 2014, reiterating that while progress had been made in the negotiations, the parties still remained unable to conclude an agreement. Mr Portelli submitted that, indicative of the NUW’s genuineness in trying to reach an agreement, further discussions between the parties were scheduled for 30 April 2014. He then addressed the various statutory requirements, submitting that they had been met and that therefore the Commission must, in accordance with s.443(1) of the Act, make the order sought.

[6] Mr Kronenberg who appeared with Mr Whyte for AFG did not dispute Mr Portelli’s description of the bargaining to date or that the NUW was genuinely trying to reach an agreement. However, he did express frustration at delays in the bargaining process due to the unavailability of NUW representatives, though he did not attribute any mal intent to those delays. It was against that background, together with the fact that further discussions occurred after the application was made with another meeting scheduled for 30 April 2014, that AFG considered the application premature. Mr Kronenberg indicated that AFG’s preference was for the application to be held over until after the 30 April discussions had occurred.

[7] Section 443(1) of the Act provides that:

(1) The FWC 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) the FWC 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.

[8] Further, s.441(1) of the Act requires that the Commission “must, as far as practicable, determine an application for a protected action ballot order within two working days after the application is made.”

[9] On the basis of the material before me, I am satisfied the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR549743] is based on the draft order provided by the NUW and will be issued in conjunction with this decision.

[10] Finally, it is worth noting that the granting of a protected action ballot order does not of itself mean that industrial action will necessarily ensue. Given that the order accompanying this decision provides that the ballot close no later than 20 working days from the date of the order, the scope remains for the parties to reach an agreement in the absence of protected industrial action. Further, even if the ballot endorses the proposed forms of industrial action, it does not mean that protected industrial action will follow closely thereafter, though such an eventuality is clearly a possibility subject to the provision of the required notice by the NUW.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR549742>

Appearances:

A Portelli for the Applicant.

A Whyte and R Kronenberg for the Respondent.

Hearing details:

2014.

Melbourne:

April 15.