National Union of Workers v Sakata Rice Snacks Australia Pty Ltd

[2013] FWC 5313

[2013] FWC 5313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Sakata Rice Snacks Australia Pty Ltd
(B2013/965)

COMMISSIONER JOHNS MELBOURNE, 2 AUGUST 2013

Proposed protected action ballot by employees of Sakata Rice Snacks Australia Pty Ltd.

[1] On 19 June 2013 the National Union of Workers (NUW) made an application for a protected action ballot order (PABO) requiring a protection action ballot to be conducted to determine if employees of Sakata Rice Snacks Australia Pty Ltd (Sakata) wish to engage in particular protected industrial action for an enterprise agreement (Proposed Agreement) to replace the Sakata Rice Snacks Australia Pty Ltd Agreement 2011 - 2013 (2011 Agreement). The Nominal Expiry Date of the 2011 Agreement is 8 June 2013.

[2] On 22 April 2013 the NUW served a log of claims on Sakata. The NUW and Sakata have met to negotiate the Proposed Agreement on at least 4 separate occasions. It is agreed between the parties that, in the course of those negotiations, progress has been made and the parties have made concessions.

[3] The Application specified the:

• group of employees who are to be balloted; and



• questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[4] Sakata has not raised concerns about the questions proposed to be asked in the ballot.

[5] Consequently, the Fair Work Commission (Commission) is satisfied that the application fulfils the requirements of s.437(3) of the Fair Work Act 2009 (Act).

[6] It is not proposed that a person other than the Australian Electoral Commission be the protected action ballot agent for the protected action ballot. Therefore, s.437(4) of the Act is not relevant.

[7] Under s.443 of the Act the Commission must make a protected action ballot order in relation to a proposed enterprise agreement if an application has been made under s.437 of the Act and, relevantly, if the Commission is satisfied that the applicant “has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted” (s.443(1)(b) of the Act).

[8] On 19 June 2013 Sakata notified the Commission that they opposed the Application, asserting that the NUW is not genuinely trying to reach an agreement because they are pursuing matters that are not permitted matters (s.172(1)). In response, the NUW said the matters they are pursuing are permitted. In the alternative the NUW says they reasonably believe the matters they are pursuing constitute permitted matters.

[9] It is common ground between the parties that if not permitted matters are being pursued it follows that the NUW are not genuinely trying to reach an agreement and no PABO can be made.

[10] The matter was listed for a hearing on Friday, 21 June 2013. Despite the NUW bearing the onus of establishing that it has been, and is, genuinely seeking to reach an agreement 1, it was not in a position to lead evidence on that occasion. Consequently, the Commission issued directions for the further programming of the matter. By reason of the non-availability of counsel for Sakata, the matter was re-listed for hearing on Monday, 5 August 2013 and again, due to the Commission’s diary, re-listed for hearing on 12 August 2013.

[11] By reason of the above, although the Application was listed for hearing within 2 days of the Application being made, in the circumstances it was not practicable for the Commission to determine the Application within 2 days.

[12] On 1 August 2013 Sakata notified the Commission that it wished to withdraw its opposition to the Application. Consequently, the hearing was vacated and the Commission decided to determine the matter on the papers.

[13] The Commission is satisfied that the requirements of s.443(1) of the Fair Work Act 2009 have been met. Accordingly, an order must be made.

[14] The order [PR539722], based on the proposed order will be issued concurrently with this decision.

COMMISSIONER

 1   John Holland Pty Ltd v AMWU and AWU[2010] FWAFB 526.

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<Price code C, PR539715>