National Union of Workers v Vitasoy Australia Products Pty Ltd
[2011] FWA 5979
•5 SEPTEMBER 2011
[2011] FWA 5979 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
National Union of Workers
v
Vitasoy Australia Products Pty Ltd
(B2011/3301)
COMMISSIONER RYAN | MELBOURNE, 5 SEPTEMBER 2011 |
Proposed protected action ballot by employees of Vitasoy Australia Products Pty Ltd.
[1] Application was made by the National Union of Workers (NUW) for a Protected Action Ballot Order concerning bargaining with Vitasoy Australia Products Pty Ltd (Vitasoy) in relation to employees at the Barandouda site of Vitasoy.
[2] Mr Portelli represented the NUW and Mr Follett, of counsel, represented Vitasoy.
[3] The application was opposed by Vitasoy on two grounds. Firstly, that the second of two questions to be included in the ballot was unclear. Secondly, that the matters being bargained for by the NUW included a non-permitted matter.
The Ballot Question
[4] The proposed question to be included in the ballot was:
Question 2
An unlimited number of stoppages of work of indefinite duration?
Yes / No
[5] As Mr Follett for Vitasoy explained its objection to the question as follows:
“The problem with the question is that by defining the nature of action by reference to the word “indefinite” which that word itself means something that is unknown, cannot be known, that the description of the nature of the action is not known. Now, I understand that there are certain authorities in this tribunal that have held questions of that type permissible and we don’t agree in a sense with those authorities. We haven’t found anything at full bench level which would foreclose this argument and indeed the full bench authorities are all distinguishable and make the distinction we say between an indefinite number of properly explained industrial action versus an unlimited number as it is in this case of action which is indefinite.” 1
[6] Mr Portelli for the NUW relied on a decision of VP Watson in NUW v Blue Circle Transport P/L 2and the decision of the plurality of the Federal Court in Davids Distribution v NUW3 (Davids), to argue that the question was clear.
[7] In the oft quoted passage from Davids the plurality said:
“[88] It will be apparent we think it necessary and sufficient, for parties to describe the intended action in ordinary industrial English...”
[8] Ordinary industrial English in Australia has been formed through nearly a hundred and fifty years of robust industrial relations in which various forms of industrial action have been a constant and regular occurrence.
[9] The industrial action identified in the question to be included in the ballot would be well understood using ordinary industrial English. Whilst the wording used may be more elegant and refined than may be used in some workplaces the meaning is clear, it has the same meaning as the phrase used by the plurality in Davids, “an indefinite strike”.
A Non-Permitted Matter
[10] The second challenge to the application was that the NUW had not been and were not genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The basis for this challenge was the assertion that the NUW was seeking to include in the agreement a clause from the existing workplace agreement and that clause was a non-permitted matter.
[11] In relation to this issue the NUW led evidence from Mr John Sheehan, an employee of Vitasoy and an NUW site representative at all of the bargaining meetings with Vitasoy. Vitasoy did not lead any sworn evidence in relation to this issue. However Vitasoy had filed a signed statement from Mr Mark Chadwick, the Risk Manager at the Barandouda site. Although Mr Chadwick was present at the hearing Vitasoy declined to call him to give evidence in relation to this issue.
[12] The bargaining which is underway between the NUW and Vitasoy is for an enterprise agreement which will replace the current agreement, the Vitasoy Australia Products Pty Ltd National Union of Workers Agreement 2005 (the 2005 Agreement) which was varied and extended in 2008. The nominal expiry date of the 2005 Agreement was 30 June 2011. Clause 15.8 of the 2005 Agreement provides as follows:
“15.8 It is agreed that any casuals hired through any labour hire company to perform production work shall be covered by all the provisions of this Agreement.”
[13] The Log of Claims made by the NUW on Vitasoy at the first bargaining meeting on 6 June 2011 included the following:
1. That the Agreement be a full comprehensive agreement. That is, all relevant employment conditions (including the National Employment Standards (NES); union rights provisions; award, over-award and enterprise agreement conditions) that can be legally contained in an Agreement are incorporated into a consolidated document.
2. That the current Agreement forms the basis of the new Agreement (i.e. current terms and conditions of employment continue subject to this log of claims and any relevant legislation).
. . .
11. That in relation to labour hire workers;
• that direct engagement shall be the principle and preferred method of employment;
• that the Employer will consult with employees and the Union prior to engaging any labour hire providers and subsequently if there are any concerns.
• That the Employer will allow delegates and Union representatives to meet with labour hire workers during their inductions on paid time.
[14] At the first bargaining meeting on 6 June 2011 Vitasoy made claims on the NUW and one of these claims was that clause 15.8 of the 2005 Agreement be removed from the new Agreement.
[15] Mr Sheehan gave evidence of the way in which the Vitasoy claim for the removal of clause 15.8 was dealt with during the several bargaining meetings. Exhibit A1 was identified by Mr Sheehan as being a page from a larger document which was prepared by the NUW to keep a running record of bargaining over each of the NUW and Vitasoy claims. Exhibit A1 is reproduced below:
Vitasoy #5 | Casual employment - That we remove clause 15.8 - the Agreement should not cover all Labour Hire employees as they are not employees of Vitasoy. | 6/6 - NUW to respond 17/6 - NUW want all casuals to receive the same pay and conditions 24/6 - NUW rejected on the basis of our claim 11 11/7 - Same position VAP to provide wording re casuals maintaining site rates of pay 12/7 - Same position 25/7 - Same position 26/7 - VAP said they will provide words as they said 4 meetings ago and are yet to provide. NUW asked VAP to provide a list of what conditions it is they seek to remove from casuals. 10/8 - NUW asked VAP to provide a list of what conditions it is they seek to remove from casuals. Again 24/8 - VAP tabled words that casuals would get site rates only but not any other conditions. And that the current clause is unlawful. NUW tabled clause approved on June 23rd by SVP Kaufman for Morwell EA that is the same as ours. NUW asked VAP to remove ‘unlawful’ from their presentation to. VAP refused. |
[16] What was clear both from the evidence of Mr Sheehan and Exhibit A1 is that whilst the NUW rejected the Vitasoy claim for removal of clause 15.8 from the Agreement the NUW was not pursuing a claim for a non-permitted matter. The refusal of the NUW to agree to the removal of clause 15.8 was not an active claim for the retention of clause 15.8 as it was, but rather, was a rejection of a claim to remove a protective clause in circumstances where the NUW had made a specific claim for a protective clause on the same subject matter and where the NUW was seeking a bargaining outcome that addressed both claims in a manner which was consistent with the Act. The evidence in this matter was clear that the NUW were at all times trying to reach agreement around the subject matter of the Vitasoy claim to remove clause 15.8 and the NUW Claim 11. The matter raised by NUW Claim 11 is not, in my view, a non-permitted matter.
[17] I am satisfied that the NUW has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[18] The application is granted and a protected action ballot order, in the terms provided by the NUW, will issue with this decision.
COMMISSIONER
Appearances:
Mr A Portelli for the National Union of Workers
Mr M Follett of counsel for Vitasoy Australia Products Pty Ltd
Hearing details:
2011
Melbourne
August 29
1 Transcript at PN23
2 PR973654
3 [1999] FCA 1108
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