National Union of Workers v Tek Foods Pty Ltd
[2019] FWC 1135
•20 FEBRUARY 2019
| [2019] FWC 1135 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
National Union of Workers
v
Tek Foods Pty Ltd
(B2019/122)
| Deputy President Millhouse | MELBOURNE, 20 FEBRUARY 2019 |
Proposed protected action ballot of employees of Tek Foods Pty Ltd.
On 14 February 2019, the National Union of Workers (NUW) filed an application for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (Act). The application concerned a proposed ballot of employees of Tek Foods Pty Ltd (Tek Foods).
The employees in question are members of the NUW who perform production work and who would be subject to a proposed enterprise agreement at the Tek Foods site.
Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a PABO within two working days after the application is made. The matter was allocated to my chambers on 18 February 2019 and was listed for Mention/Directions Hearing that day, to discuss the nature of Tek Foods’ objection and to further timetable the matter. Having sought the parties’ views, I listed the matter for hearing on 20 February 2019.
Ms Imogen Beynon, Industrial Officer of the NUW appeared for the union at the hearing and Mr Andrew Giles, Lead Organiser for the NUW gave evidence on its behalf. Mr Mehmet Latifoglu, Operations Manager together with Mr Yusuf Demir, Business Manager appeared for Tek Foods and Mr Latifoglu gave evidence on the company’s behalf.
Statutory framework
Section 437 of the Act enables a bargaining representative to apply for a PABO. Subject to the restrictions in s.437(2A) and s.438(1) (which are not presently relevant), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s.443. Section 443 relevantly 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.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
…”
Whether an applicant “has been, and is, genuinely trying to reach an agreement” within the meaning of s.443(1)(b) is a question of fact to be decided by reference to all of the circumstances of the bargaining in question.[1] It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.[2] There are two temporal components to s.443(1)(b); the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement.
Background and evidence
The background to the application is set out in the statutory declaration of Mr Giles that accompanied the filing of the application,[3] and was further described in Mr Giles’ oral evidence.
On or about 30 August 2018, the NUW served a log of claims on Tek Foods, setting out terms or matters that it sought to be included in the proposed enterprise agreement. Mr Giles gave evidence that the log of claims was developed by surveying members at the site and then having the list of claims endorsed by those members in or about July 2018. Since that time, “no less than six meetings” have been held between the NUW and Tek Foods to discuss the log of claims and negotiate the terms of the proposed agreement. Mr Giles said that during the course of the bargaining meetings, the NUW has changed its bargaining position, including withdrawing claims. The NUW’s concerns in relation to proposed wage increases and service increments remain outstanding.
Tek Foods objects to the application on the basis that it has reached an in-principle agreement with the NUW in relation to the proposed agreement. It contends that this occurred subsequent to the NUW lodging the application on 14 February 2019.
In support of its objection to the NUW’s application, Mr Latifoglu gave evidence that there have been bargaining meetings conducted on 31 August 2018, 21 September 2018, 4 October 2018, 31 October 2018, 13 December 2018 and 8 February 2019. A draft agreement has been exchanged and there has been some back and forth regarding the wording of certain clauses. He said that a key issue addressed at the fourth bargaining meeting on 31 October 2018 was the classification of production employees and this issue resulted in “a lot of emails coming and going” between Tek Foods and the NUW. He said that this was an issue that was “ticked off” at a catch-up meeting with the NUW on the afternoon of Friday 14 February 2019, in addition to an in-principle agreement concerning wages. He contends that these were the key outstanding issues in dispute.
In relation to the “catch-up meeting” on Friday 14 February 2019, Mr Latifoglu accepted during cross-examination that he had received an email from the NUW on 19 February 2019 setting out the specific matters in respect of which in-principle agreement had been reached. The union had sought the company’s confirmation of this list, which had not been provided by Tek Foods at the time of the hearing. Mr Latifoglu acknowledged that there were still some matters “to be worked out” and a response to be provided by Tek Foods to the union’s correspondence.
Genuinely trying to reach agreement
Before a PABO can be issued, the Commission must be satisfied that the NUW has been, and is, genuinely trying to reach agreement with Tek Foods. I have considered the company’s objection to the application in this regard. In my view, for the reasons below, the matters raised by Tek Foods do not impinge upon the genuineness of the NUW’s efforts to reach agreement with Tek Foods. Rather, they support it.
While it was not factually contentious, I accept the evidence of Mr Latifoglu that there have been six bargaining meetings to date. It is clear from his evidence, and that of Mr Giles, that progress has been made in bargaining. A log of claims has been served and positions have been shared both during the bargaining meetings and subsequently via email between the parties. A draft agreement has been exchanged. Concessions and/or counter proposals have been made, and the parties have reached an in-principle agreement in respect of certain matters, subject to written confirmation from the company.
The company led no evidence to contradict Mr Giles’ statement that the union has been, and is, genuinely trying to reach agreement with Tek Foods. Nor did the company seek to challenge this evidence in cross-examination. It is clearly the case that further discussions may well advance an agreement. To the extent that Tek Foods contends that the application is premature, it is not necessary to show that negotiations on the agreement or an item of the agreement have been exhausted before a PABO is made or that such action is a matter of last resort.[4] The central question is whether the NUW has demonstrated that it has been, and is, genuinely trying to reach agreement with the employer of the employees whom it proposes to ballot. The evidence clearly supports a conclusion that it has been and it is.
Conclusion
Section 443(1) states that 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 and 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”‘
Having regard to all of the circumstances of the bargaining, I am satisfied that the NUW, the applicant, has been, and is, genuinely trying to reach agreement with Tek Foods.
I am satisfied that an application has been made pursuant to s.437 of the Act and that the restrictions on the making of an application under section 437(2A) and 438(1) are not applicable in the circumstances of this application. The other statutory criteria for the granting of a PABO in the application have been met.
Pursuant to s.443(1) of the Act, a protected action ballot order is issued in PR705130.
DEPUTY PRESIDENT
Appearances:
I Beynon for the National Union of Workers’
M Latifoglu for Tek Foods Pty Ltd
Hearing details:
2019
Melbourne
February 20
<PR705164>
[1]Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2015) 257 IR 5 at [69]; [2015] FWCFB 210 at [57].
[2] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 at [32]; (2009) 189 IR 407 at [32]; National Union of Workers (NUW), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Sakata Rice Snacks Australia Pty Ltd[2016] FWC 6262 at [25].
[3] Exhibit A1.
[4] CEPU and AMWU v Kraft Foods Ltd (2010) 197 IR 12 at [40].
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