National Union of Workers v Levi Strauss Pty Ltd

[2013] FWC 4097

[2013] FWC 4097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Levi Strauss Pty Ltd
(B2013/970)

COMMISSIONER WILSON MELBOURNE, 25 JUNE 2013

Proposed protected action ballot by employees of Levi Strauss Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Levi Strauss Pty Ltd.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”) and is dated 20 June 2013. It relates to bargaining for a replacement agreement of the Levi Strauss (Australia) Pty Ltd Distribution Centre Union Collective Agreement 2012-2013. 1 The Nominal Expiry Date for that Agreement is 30 June 2013.2

[3] The Applicant seeks to ballot all employees of Levi Strauss Pty Ltd who will be covered by the proposed enterprise agreement and for whom the NUW is the bargaining representative.

[4] A telephone hearing of the parties was convened on 24 June 2013, consistent with the legislative requirement in s.441 of the Act that FWC must, as far as practicable, determine a protected action ballot order within 2 working days after the application is made.

[5] Ms L. Giire and Mr M. Whenan appeared for the NUW and Ms M. Pawsey and Mr P. Ashworth appeared for the employer.

[6] The material before me consists of the application; a form of Order provided by the NUW; email correspondence from both parties; and the submissions of both in the course of the telephone hearing. I have considered all this material and have taken it into account in this decision.

[7] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(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.

(2) The 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).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[8] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[9] The provisions of s.438 of the Act include that if one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement. I find this provision to have been met. The nominal expiry date of the existing agreement is 30 June 2013 and the NUW’s application for a protected action ballot order was made on 20 June 2013.

[10] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[11] In correspondence to my Chambers and reiterated in the course of the hearing, it was said by the employer that “Levi Strauss (Australia) Pty Ltd neither oppose nor consent to the National Union of Workers (NUW)’s application for a protected action ballot order on the basis that we do not believe the union is genuinely trying to reach an agreement with us”. 3

[12] Notwithstanding the last part of this comment, I note the important part of it to be that the company does not “oppose or consent” to the making of an Order. I note that this position remained the company’s position in the hearing. 4

[13] In the course of the hearing, on 24 June 2013, the NUW and Levi Strauss advised me of various steps taken by each to resolve the claims to date. They reported on at least three meetings with each other of varying length. Common ground was that formal meetings were held on 20 May, 3 June and 14 June 2013. The NUW characterised these as face to face meetings with the company and said these were held “as well as a number of meetings between NUW delegate (sic) and management and email correspondence”. 5

[14] Both the NUW and the employer reported on the matters discussed in the course of the meetings and advised the most significant unresolved matter was a proposed wage increase for workers to be covered by the new enterprise agreement. The company said about those meetings that they were of different lengths (of between 15 minutes and two hours) and that “[i]f the Union was genuinely trying to reach an agreement, they would have spent more time trying to come to a resolution rather than opting to go to Fair Work so quickly.” 6

[15] In the course of their submissions, it was submitted by the NUW that their claim of an across-the-board wage increase of $50 per week had been modified to a 5% claim, which in the case of certain grades was an increase of less than $50 per week. 7 The employer submitted that their initial wages bargaining position had moved in several respects, including to the most recent position of a 3% wage increase for permanent staff, and a lower increase for casual staff8, but with the indication to staff outside one of the formal bargaining meetings there could be some small amount of further movement9.

[16] The NUW submitted that other elements of their claims were discussed in the meetings (without indicating to me what those issues were). For example, Mr Whenan for the NUW submitted in respect of one meeting;

“And then we met with the company again on Friday, 14 June where Levi had presented a revised offer. We had removed some of our claims, conceded on some of our claims, and we had a greater discussion largely in relation to the pay rise that the company was offering, which had been 2.6 per cent. In this meeting on 14 June the company made an offer again of 2.6 per cent but also put up an alternative position that they could make a pay rise of 3 per cent if it was only permanent employees to which they had to give a pay rise under the agreement.” 10

[17] There is no evidence or submissions that the NUW claims are for matters which are not a permitted matter within the meaning of s.172(1). Neither is there a contention that the NUW is not a bargaining representative for the employees who will be covered by the proposed enterprise agreement.

[18] While the parties submissions indicate they are obviously still apart on the subject of a wages increase, and have strongly held views about the merits of their respective positions, I am satisfied they are endeavouring to bargain and that the NUW, as the applicant in this matter, has been, and is genuinely trying to reach agreement with the employer of the employees who are to be balloted, which is the requirement within s.443(1)(b).

[19] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Appearances:

L Giire and M Whenan for the National Union of Workers

M Pawsey and P Ashwoth for Levi Strauss Pty Ltd

Hearing details:

2013.

Melbourne:

24 June.

 1   [2010] FWAA 8604

 2   ibid, at [9]

 3   Email from Mr P Ashworth, DC Operations Manager, Levi Strauss (Australia) Pty Ltd, 24 June 2013

 4   Transcript, PN116-117

 5   Transcript PN12

 6   ibid

 7   Transcript PN105-109

 8   Transcript PN58

 9   Transcript PN70

 10   Transcript PN19

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