National Union of Workers v Australian Pharmaceutical Industries Ltd
[2018] FWC 7464
•6 DECEMBER 2018
[2018] FWC 7464
The attached document replaces the document previously issued with the above code on 6 December 2018.
Paragraph [9] is amended to refer to the “Community Service Obligation Funding Pool Operational Guidelines published by the Commonwealth Department of Health”.
Jack Howe
Associate to Commissioner Hunt
Dated 7 December 2018
| [2018] FWC 7464 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
National Union of Workers
v
Australian Pharmaceutical Industries Ltd
(B2018/1086)
| COMMISSIONER HUNT | BRISBANE, 6 DECEMBER 2018 |
Proposed protected action ballot of employees of Australian Pharmaceutical Industries Limited.
This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the National Union of Workers (NUW). The NUW seeks a protected action ballot order in relation to certain employees of Australian Pharmaceutical Industries Limited (the Employer).
The application was opposed by the Employer, and a hearing was convened before me on 6 December 2018. The NUW was represented by Mr Martin de Rooy, Organiser of NUW together with Mr Quan Chuc, Organiser of NUW. The Employer was granted leave to be represented by Mr Brendan Richardson, Director of BPR & Associates Pty Ltd. He appeared with Mr Stephen Mailer, Distribution Centre Manager of the Employer.
The opposition to the application was on the basis of a claim advanced by the NUW relevant to job security of employees to be covered by the proposed agreement. The NUW had been, up until 4 December 2018, advancing the following draft clause:
“Job Security
1. If the company makes a decision to relocate the work to another facility run by a related body corporate of the Company, the Company will ensure that:
(a) The workers engaged to perform the work will receive rates of pay and conditions no worse than those received by existing employees; and
(b) Existing employees will be provided with the option to relocate to the new facility; and
(c) Employees will only be made redundant where there is no suitable alternative work.
2. If the Company makes a decision to outsource any work to another provider that is not a related body corporate, the Company will ensure that:
(a) The workers engaged to perform the work will receive rates of pay and conditions no worse than those received by existing employees; and
(b) It facilitates the transfer of existing employees to the new provider; and
(c) Employees will only be made redundant where there is no suitable alternative work.”
The Employer submitted that the proposed clause included non-permitted matters; that is, matters not pertaining to the relationship between the Employer and the employees who will be covered by the proposed agreement.
In correspondence dated 4 December 2018, the NUW withdrew part 2 of the proposed clause.
In the hearing before me, and after obtaining instructions, the NUW agreed to amend part 1 of the proposed clause such that the claim is now:
1. If the Employer makes a decision to relocate the work to another facility of the Employer, the Employer will ensure that:
(a) The workers engaged to perform the work will receive rates of pay and conditions no worse than those received by existing employees; and
(b) Existing employees will be provided with the option to relocate to the new facility; and
(c) Employees will only be made redundant where there is no suitable alternative work.
Mr de Rooy and Mr Chuc gave undertakings that the claims would be advanced on that basis and not go beyond the amended clause put at [6].
The Employer took the view that having regard to the changed position during the hearing, its opposition could no longer be maintained. Whilst it was not canvassed during the hearing, I take it that the reference to ‘workers’ in 1(a) of the proposed clause means workers of the Employer, and not workers at large (for example labour hire or contracting employees). It is only on the basis that ‘workers’ in 1(a) of the proposed clause means workers of the Employer that I have decided to make the order sought.
There being no further opposition to the order being made, the Employer requested that the Commission have regard to the essential services the Employer provides by virtue of its distribution of lifesaving drugs to over 900 pharmacies across Queensland and New South Wales. The Employer is bound by the Community Service Obligation Funding Pool Operational Guidelines published by the Commonwealth Department of Health, obliging it to supply certain drugs to customers within 24 hours.
The Employer submitted that the Commission should be satisfied that pursuant to s.443(5) of the Act there are exceptional circumstances justifying the period of written notice of three working days for the taking of protected industrial action being extended to five working days.
Mr Mailer’s witness statement was admitted into evidence, and he provided further submissions at the hearing. The NUW did not oppose the application, nor require cross-examination of Mr Mailer. The NUW consented to the application.
On the basis of the material before me, I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An Order [PR702972] based largely on the draft provided by the NUW will issue at the same time as this Decision.
While the parties have sensibly reached a consent position relevant to five working days being specified within the Order, it is necessary for the Commission to be satisfied there are exceptional circumstances justifying the period being five working days and not three working days.
The Employer has an important role in distributing drugs within a short period of time to a very large number of pharmacies across a large geographical area. Mr Mailer’s evidence and submissions have satisfied me that there may be failures by the Employer to meet its important obligations if it were faced with protected industrial action by some of its employees, and it only had three working days’ notice of the proposed action.
On the evidence before me and the submissions made relevant to the logistics faced by the Employer in the event of protected industrial action being notified, I am satisfied that there are exceptional circumstances justifying the period of written notice being five working days and not three working days.
COMMISSIONER
Appearances:
Mr Brendan Richardson, BPR & Associates Pty Ltd, for the Respondent;
Mr Stephen Mailer, for the Respondent
Mr Martin de Rooy, for the Applicant.
Mr Quan Chuc, for the Applicant.
Hearing details:
Brisbane, 6 December 2018.
Printed by authority of the Commonwealth Government Printer
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