National Union of Workers v Bremick Pty Ltd

[2014] FWC 3801

[2014] FWC 3801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Bremick Pty Ltd
(B2014/109)

COMMISSIONER BULL SYDNEY, 6 JUNE 2014

Proposed protected action ballot by employees of Bremick Pty Ltd.

[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 5 June 2014.

[2] The NUW is a bargaining representative for its members, who are said to be covered by the proposed replacement agreement. The employees are engaged to work at Alexandria in New South Wales. The previous agreement, the Bremick Pty Ltd Enterprise Agreement 2010 reached its nominal expiry date on 24 December 2013.

[3] Following the application being filed with the Commission, the Respondent advised that it did not oppose the application. In an email received by the Commission on 6 June 2014, the Respondent states that there have been ongoing difficult conditions within the industry and that a number of sales staff were made redundant last week. In these circumstances, the Respondent submitted it had made its best possible offer to the NUW.

[4] Attached to the NUW application (Attachment “B”) was a statement of Mr Garry Cripps who represents members of the NUW employed by the Respondent.

[5] In respect to determining this matter I am required under s.433 of the FW Act to issue a secret ballot order where I am satisfied that the NUW is genuinely trying to reach an agreement.

[6] The specific terms of s.443 are extracted below:

“443 When FWC must make a protected action ballot order

(1) 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) 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.

(2) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).”

[7] The legislation as expressed above 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

[8] I have determined the matter on the basis of the documentation filed.

[9] According to the evidence of Mr Cripps, a log of claims endorsed by the NUW members was served on the Respondent on 29 October 2013.

[10] Subsequently, Mr Cripps attended seven bargaining meetings with the Respondent from October 2013 to March 2014.

[11] On 4 April 2014, a final draft agreement was presented by the Respondent to the employees. A vote was held on 11 April 2014. A majority of the employees voted not to approve the agreement.

[12] A further meeting was held on 4 June 2014. This meeting was attended by the NUW New South Wales Branch Secretary Derrick Belan. It is Mr Cripp’s evidence that despite genuine negotiations, consent could not be reached on the major issues. The members then endorsed the NUW to file an application for a protected action ballot.

[13] The Respondent has not made any submissions to suggest the meetings held were not conducted in a manner to genuinely try and reach an agreement.

[14] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the evidence of Mr Cripps, that the NUW has been, and is, genuinely trying to reach an agreement with the Respondent, I therefore must make the order as sought by the NUW.

[15] An order [PR551576] based on the draft provided by the NUW will issue in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR551575>