National Union of Workers v Dentsply (Australia) Pty Ltd
[2009] FWA 548
•7 OCTOBER 2009
[2009] FWA 548 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Dentsply (Australia) Pty Ltd
(B2009/10748)
COMMISSIONER WHELAN | MELBOURNE, 7 OCTOBER 2009 |
Proposed protected action ballot by employees of Dentsply (Australia) Pty Ltd.
[1] This is an application made by the National Union of Workers (NUW) for a protected action ballot of members employed by Dentsply (Australia) Pty Ltd. The application was heard on Monday 5 October, where evidence was given by Mr Dominic Melling, an organiser for the NUW. A decision to grant the order was given in transcript.
[2] There was no issue that the application was not properly brought, the previous agreement covering the site having reached its nominal expiry date on 30 June 2007. The only issue raised by the respondent was whether the union could be said to have genuinely tried to reach agreement with the employer, before bringing this application.
[3] The following is an edited version of the reasons given in transcript for finding that the union was and continued to be genuinely trying to reach agreement with the employer:
“The only issue that I really think I need to consider here is whether this application is premature. There is nothing that says that in the bargaining process one side must be prepared to concede to the other. Making concessions, as I understand it, is not necessarily a requirement, although if you want to reach an agreement at the end of the day that is generally what happens. I understand that the process commenced with the union serving a log of claims and that there have essentially been three meetings since then. There was to be a meeting on 24 September, that meeting was cancelled and rescheduled for 14 October. So there has been a process under way in which the parties are in the terms of the Act bargaining.
They are meeting, they are putting proposals and presumably they are considering those proposals. The union has indicated that it was willing to modify its claims, and I think one example was given of where that occurred. There are some matters that had been agreed, there are other matters that have not been agreed, there are matters that are still being discussed. Significantly, the issue of the monetary outcome of this agreement is yet essentially to be discussed, because while the union have put certain proposals and the company has not acceded to those proposals the company has not at this stage put any counter proposal in relation to that, although I understand it is the intention of the employer to do so.
All of that seems to me to be a fairly normal bargaining process and it does not seem to me that either party is doing anything other than what you might expect to occur in the bargaining process. The only issue therefore is whether this application is premature or not. The Act does not prescribe any particular time when you can or can not make an application for a protected action ballot. It does not require the parties to be at a standstill or to have no other alternatives to explore before they can make such an application. It is a legitimate part of the process for such an application to be made.
I am satisfied that the union has been attempting, genuinely attempting to reach an agreement here. I am satisfied that it is their intention to continue to try and reach an agreement here, and I am not satisfied that this application is pre-emptive or precipitous or premature or any of those other words that might otherwise be used to describe it. It is therefore my view that there are no reasons why this application should not be granted.”
COMMISSIONER
Appearances:
D. Mujkic for the National Union of Workers.
M. Ritchie (VECCI) for Dentsply (Australia) Pty Ltd.
Hearing details:
2009.
Melbourne:
October 5.
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