Textile, Clothing and Footwear Union of Australia v Tuftmaster Carpets Pty Ltd

[2014] FWC 8936

[2014] FWC 8936

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Textile, Clothing and Footwear Union of Australia
v
Tuftmaster Carpets Pty Ltd
(B2014/1669)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 DECEMBER 2014

Proposed protected action ballot of employees of Tuftmaster Carpets Pty Ltd.

[1] The Textile, Clothing and Footwear Union of Australia (TCFUA) applied for a protected action ballot order. 1 The TCFUA sought an order that certain employees of Tuftmaster Carpets Pty Ltd (Tuftmaster) who are members of the TCFUA and who would be subject to the proposed enterprise agreement be balloted to see if they supported the taking of protected industrial action.

[2] Tuftmaster opposed the application and submitted the TCFUA was not genuinely trying to reach an agreement with them. At the conclusion of the hearing I advised that I would issue the order sought. These are my reasons.

[3] It was not disputed that:

(1) The TCFUA is a bargaining representative for employees. 2

(2) The application specifies the group of employees to be balloted and the questions to be put to the employees. 3

(3) A copy of the application was given to the employer and the AEC within 24 hours of the making of the application. 4

(4) The nominal expiry date of the agreement has passed. 5

[4] Ms Kathleen Morgan, an employee and TCFUA Organiser, provided a Statutory Declaration 6 and gave evidence at the hearing and was cross examined.

[5] Mr Brian Grace who appeared for Tuftmaster did not give sworn evidence. He submitted that the original claim by the TCFUA was unreasonable in the current climate. He submitted that the fact that the TCFUA had moderated its claim very early on in the negotiations supported the submission that the TCFUA demands were unreasonable.

[6] The evidence shows that the TCFUA made a claim for an 8% wage increase per year plus an increase in superannuation with improvements in conditions. In response Tuftmaster proposed an agreement with no pay increase. It might be said that both parties’ starting positions could be described as being ambit claims. As a result the TCFUA sought additional information from Tuftmaster so that it could understand the Tuftmaster’s claim that no pay increase could be afforded. In December 2014 the TCFUA advised that it had modified its claim and Tuftmaster provided its log of claims which varied existing conditions. The TCFUA indicated that it wished to continue to negotiate.

[7] I am not able to conclude on the basis of the evidence before me that the claim of the TCFUA was so fanciful that a finding could be made that it is not genuinely trying to reach an agreement. Further, its conduct in modifying its demands and continuing to negotiate with Tuftmaster supports a finding that it is genuinely trying to reach an agreement.

[8] I am satisfied that the TCFUA has satisfied the statutory prerequisites for a protected action ballot order and I am satisfied that the TCFUA is genuinely trying to reach an agreement.

DEPUTY PRESIDENT

 1 See s.437 of the Fair Work Act 2009

 2 Ibid s.437(1)

 3 Ibid s.437(3)

 4   Ibid s.440

 5   Ibid s.438(1)

 6   Exhibit A1

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