National Union of Workers v The Reject Shop Limited
[2011] FWA 4242
•5 JULY 2011
[2011] FWA 4242 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
National Union of Workers
v
The Reject Shop Limited
(B2011/3050)
COMMISSIONER BISSETT | MELBOURNE, 5 JULY 2011 |
Proposed protected action ballot by employees of The Reject Shop Limited.
[1] This is an application by the National Union of Workers (NUW) under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot to be conducted with respect to employees to be covered by a proposed agreement with The Reject Shop (TRS) covering warehousing operations.
[2] TRS submitted that, due to the particular circumstances of the bargaining, there is a question as to whether or not the NUW is genuinely trying to reach agreement.
[3] Section 443 of the Act provides:
443 When FWA must make a protected action ballot order
(1) FWA 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) FWA 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) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
[4] If I am not satisfied that the NUW is genuinely trying to reach agreement I cannot issue the order sought.
[5] The NUW is seeking a national agreement with TRS. The existing agreement (which has passed its nominal expiry date) applies in Victoria only. There are no other agreements that apply to TRS.
[6] TRS submits that the NUW was participating in negotiations for a greenfields agreement with respect to its store at Ipswich. Those negotiations had been positive, with in-principle agreement reached on most matters (there is some dispute about which matters were outstanding but that is not germane to the issue to be determined here). The negotiations were suspended after the Queensland floods inundated the site. Prior to those negotiations re-commencing the NUW served a log of claims on TRS which sought, amongst other things, a national agreement. TRS does not agree to a national agreement and this remains an outstanding matter between the parties.
[7] Mr Bell gave evidence for TRS as to the state of negotiations for the greenfields agreement at Ipswich.
[8] TRS submits that the NUW, in seeking a separate agreement for the Ipswich site but now seeking a protected action ballot order for a proposed agreement to operate nationally, has not been genuinely trying to reach agreement.
[9] The Ipswich site does not directly employ anyone.
[10] Mr Moase and Mr Lamaro gave evidence for the NUW. Mr Moase’s evidence is that he was involved in negotiations for a greenfields agreement at the Ipswich site and that those negotiations were suspended by mutual agreement following the Queensland floods. Those negotiations have not recommenced. Mr Lamaro gave evidence that he has attended two meetings with TRS concerning the proposed agreement. Agreement has been reached between the NUW and TRS on a very limited number of matters in those negotiations, there are a number of matters outstanding and there is no agreement on a national agreement.
[11] The NUW submits that it is its intention to make a national agreement with TRS. To this extent it has a different objective to TRS on the scope of the proposed agreement. This is a matter to be resolved in bargaining.
[12] That the NUW has determined that the scope of the proposed agreement it wishes to make with TRS is a national agreement in circumstances where it has been (but is no longer) participating in negotiations for a greenfields agreement for Ipswich is not an indication that it is not genuinely trying to reach agreement on a proposed national agreement. Negotiations commenced early in 2010 for the proposed greenfields agreement. They came to an end because of the Queensland floods. The current agreement applying in Victoria has only just passed its nominal expiry date. It would appear that it is the impending expiration of that agreement (and the non-completion of the Ipswich agreement) and the development of a log of claims for a replacement agreement that has resulted in the NUW determining, as is its right, that it would seek a national agreement with TRS.
[13] TRS submits that the application for the protected action ballot order may also indicate that the NUW was not bargaining in good faith for the proposed greenfields agreement. That is not a question that is relevant to the determination of this matter. The requirement in determining whether or not to grant the order sought is that the NUW is genuinely trying to reach an agreement with the employer for the employees who will be covered by the proposed agreement.
[14] Scope is of course a legitimate issue over which bargaining may occur. It is open to either party to seek a scope order should they so wish to do so. There is no such application that has been determined such that any order arising out of this matter should be restricted.
[15] In all of the circumstances I consider that the application has been properly made under s.437 of the Act and the NUW is genuinely trying to reach agreement. The proposed agreement, as advised by the NUW, is a national agreement although current circumstances indicate there are no employees outside Victoria.
[16] An order granting the application will be made. The employees to be balloted are those members of the NUW who will be covered by the proposed enterprise agreement as indicated in the NUW log of claims served on the employer on 17 May 2011.
COMMISSIONER
Appearances:
M. Toner for the National Union of Workers.
E. Mentiplay for The Reject Shop.
Hearing details:
2011.
Melbourne.
1 July.
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