The Association of Professional Engineers, Scientists and Managers, Australia
[2009] FWA 880
•5 NOVEMBER 2009
Note: An appeal pursuant to s.604 (C2009/10884) was lodged against this decision - refer to Full Bench decision dated 11 December 2009 [[2009] FWAFB 1240] for result of appeal.
[2009] FWA 880
The attached document replaces the document previously issued with the above code on 5 November 2009.
Appearances have been updated.
Margaret Scanlon
Associate to Senior Deputy President Watson
Dated: 6 November 2009
[2009] FWA 880 |
|
DECISION |
Fair Work Act 2009
s.437 - Applications for protected action ballot orders
(B2009/4)
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Vehicle Division)
(B2009/10681)Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Technical and Supervisory Division)
(B2009/10700)Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2009/10741)Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(B2009/10742)v
Ford Motor Company of Australia Limited
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 5 NOVEMBER 2009 |
Proposed protected action ballots by employees of Ford Motor Company of Australia Limited.
[1] This decision deals with the following applications, made pursuant to s.437 of the Fair Work Act 2009 (the Act), for protected action ballot orders:
- B2009/10681, application filed on 18 September 2009 by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) (Vehicle Division);
- B2009/10700, application filed on 23 September 2009 by the AMWU (Technical and Supervisory Division);
- B2009/4, application filed on 24 September 2009 by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA);
- B2009/10741, application filed on 24 September 2009 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); and
- B2009/10742, application filed on 24 September 2009 by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU).
[2] In each case, the applications sought ballot orders in relation to members employed by the Ford Motor Company of Australia Limited, to authorise protected industrial action in relation to bargaining in respect of new enterprise agreements.
[3] The applications were dealt with initially by Commissioner Gay on 23 September and 2 October 2009, and were adjourned to facilitate further negotiations between the unions and Ford, without substantive hearing. The applications were fully heard by me on 21 October 2009.
[4] In the hearing on 21 October 2009, the AMWU Vehicle and Technical and Supervisory Divisions were represented by Mr A Weinmann, solicitor. Each other applicant union relied on the submissions put by Mr Weinmann. I will refer to the applicants collectively as “the unions”. The Ford Motor Company of Australia Limited was represented by Mr S Wood, of counsel. I will refer to it as Ford. The applications were heard together, having regard to the terms of s.442 of the Act.
[5] Each applicant identified the group of employees to be balloted as employees of Ford who are members of the relevant union (or division in the case of the AMWU) whose employment would be subject to the proposed agreement. The group of employees to be balloted was confined by the unions at the hearing, for reasons which are apparent later in this decision, to employees of Ford who are members of the unions and engaged in any classifications specified within the prior agreement, 1 but excluding those employees covered by the Ford Australia Geelong Powertrain Operations Closure Enterprise Agreement 20082 (the Powertrain Agreement).
[6] Both Ford and the unions provided an outline of submissions. 3 Ford tendered a witness statement of Mr David Smith, Corporate Employees Relations Manager.4 The AMWU tendered a witness statement by Mr Ian Jones, Secretary of the AMWU Vehicle Division.5 By agreement of the parties, neither witness was required for cross-examination.
Relevant statutory provisions
[7] The Act deals with protected action ballot orders in Subdivision B of Division 8 of Part 3–3 (Industrial action). The applications also raised issues about the bargaining scheme within the Act in Part 2–4 (Enterprise agreements).
[8] Section 437 of the Act provides that, in respect of single-enterprise agreements:
“(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
…..
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.”
[9] Section 443 of the Act deals with the making of 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).
(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.”
Background to the applications
[10] Currently, Ford’s employees are covered by three agreements (collectively, the current agreements):
- The Ford Australia Enterprise Agreement 2006 (Skilled Trades), 6 which has a nominal expiry date of 1 July 2009;
- The Ford Australia Enterprise Agreement 2006 (Vehicle and Salary), 7 which has a nominal expiry date of 28 August 2009; and
- The Powertrain Agreement, 8 which has a nominal expiry date of 1 December 2010.
[11] The first two agreements, the 2006 agreements, cover around 2,864 employees. The third agreement, the Powertrain Agreement, covers a further 420 employees. In total, the current agreements cover around 3,284 employees.
[12] On 28 May 2009, Ford and the unions commenced bargaining for a new enterprise agreement to replace the current agreements. On 1 July 2009, Ford issued a Fair Work Act Notice of Employee Representational Rights (s.173) to each of the 3,284 employees covered by the current agreements. 9 It gave notice in respect of bargaining “in relation to an enterprise agreement (the Ford Australia Enterprise Agreement 2009) which is proposed to cover employees that are covered by the Ford Motor Company of Australia Ltd Enterprise Agreement 2006 (Skilled Trades) and the Ford Australia Enterprise Agreement 2006 (Vehicle and Salary)”. It did not mention the Powertrain Agreementbecause that agreement did not yet apply to the employees at the time the Notice was issued.10 This was so because, although the Powertrain Agreement came into operation on 11 March 2008, the interaction rules under the Workplace Relations Act 1996 (and now the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act)) had the effect that the Powertrain Agreement did not have effect until after the nominal expiry dates of the 2006 agreements.
[13] It is agreed that negotiations proceeded from late May on a common basis that the replacement agreement or agreements would cover all Ford employees. The unions’ log of claims sought that the agreement bind “Ford Motor Company of Australia Ltd employees employed throughout Australia”. 11 A Federation of Vehicle Industry Unions (FVIU) notice to members on 12 June12 and 15 July 200913 advised that this coverageclause was agreed in principle.14 Ford issued a memorandum to managers containing the same advice.15 Discussions occurred around the number of agreements, with in-principle agreement being reached that two agreements would be made, reflecting the 2006 agreements.16
[14] There is no dispute that between late May and late September 2009 extensive bargaining occurred in relation to the replacement agreement or agreements on this basis, with all bargaining representatives bargaining in good faith. Substantial progress was made in negotiations.
[15] On 22 September 2009, following the filing and service of the application for a protected action ballot in B2009/10681, Ford wrote to Mr Jones, advising that because the agreement would cover employees covered by the (then effective) Powertrain Agreement, the unions could not apply for a protected action ballot order. 17 The unions’ position was that they were not prepared to bargain without access to the full range of rights under the Act, including the right to undertake protected industrial action. Mr Jones advised Ms Doris Olulode (Ford’s chief negotiator and Vice President Human Resources) that if Ford’s 22 September 2009 letter was about denying the unions their legal rights, they would “excommunicate” the powertrain employees from the agreement.
[16] On 1 October 2009, Mr Jones responded to the 22 September 2009 letter from Ford, confirming that the unions then sought “to have the proposed agreement cover only those employees not covered by the Ford Australia Geelong Powertrain Operations Closure Enterprise Agreement 2008 (the Powertrain Agreement)”, 18 advising “(f)or the avoidance of doubt” that the “proposed agreement” referred to in the application is an agreement covering all employees other than those covered by the Powertrain Agreement.
[17] Bargaining continued in meetings of 6, 12, 13, 15 and 20 October 2009, 19 without the participation of delegates for the powertrain employees. In those meetings, the unions reiterated that they were bargaining on behalf of all employees not covered by the Powertrain Agreement and Ms Olulode refused to accept that scope, stressing that the agreement should encompass all Ford employees, including the powertrain employees.20
Issue for determination
[18] There is no dispute between the parties that:
- The applications are made by bargaining representatives (s.437(1));
- The applications are not in respect of a greenfields or multi-enterprise agreement (s.437(2));
- The applications, as amended, specify the group of employees to be balloted (s.437(3)(a)) and the questions to be put (s.437(3)(b));
- The applications specify the Australian Electoral Commission as the ballot agent, in which case s.437(4) does not apply.
[19] The only issue in dispute in relation to s.443(1) is whether, as is required by s.443(1)(b) of the Act, Fair Work Australia can be 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.
[20] Ford also raised some issues about the questions to be put to employees in a ballot and the description of the employees to be balloted.
Submissions on s.443(1)(b)
The unions
[21] The unions submitted that the evidence establishes that they, as the applicant bargaining representatives, have been and are genuinely trying to reach an agreement with the employer of the employees who are to be balloted. They submitted that the unions initially sought an agreement or agreements covering all employees and genuinely sought that outcome. They contend that on 1 October 2009, their position changed, but since that time they have unambiguously sought an agreement for all employees, other than the powertrain employees and they have genuinely sought an agreement to that effect since 2 October 2009, having engaged in genuine bargaining with Ford in a number of meetings since that time.
[22] The unions submitted that if Ford believes the post 1 October 2009 position of the unions is hindering fair and efficient bargaining, they have the option of applying for a scope order under s.238 of the Act. They submitted that the Ford contention, that access to a protected action ballot is not available to employees’ bargaining representatives unless they have sought and obtained a scope order if at some point in negotiations an employer refuses to accept the scope of an agreement proposed by the employees’ bargaining representatives, is inconsistent with the scheme of the Act. The provision allow a bargaining representative who is concerned that disagreement as to the scope of an agreement is impeding bargaining to apply for a scope order and meet the statutory requirements for the making of such an order.
[23] The unions submitted that Ford’s contention, that “proposed agreement” in s.443(1) means an agreement the scope of which an employer agrees with, is misconceived. They relied on the Explanatory Memorandum, as follows:
“The term ‘proposed enterprise agreement’ is a generic term that is used in Part 2-4 and in Part 3-3 (Industrial action) to describe ‘an agreement’ that is being negotiated with a view to being approved as an enterprise agreement (see the observations of French J in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737; 138 IR 362). A proposed agreement can be an idea, or it can be a series of claims on behalf of a group of employees whose bargaining representatives seek to negotiate with the employer with a view to it becoming an agreement that is ultimately approved by FWA.” 21
[24] The unions submitted that this passage from the Explanatory Memorandum makes it clear that the agreement of an employer to the scope proposed by employees is not a pre-requisite for there being a ‘proposed enterprise agreement’.
[25] The unions submitted that their position is supported by:
- Section 238(1), which provides that “a bargaining agent for a proposed single-enterprise agreement” may make application for a scope order. A party will not need to make such an application unless there is a dispute over the scope of a proposed agreement. It follows that the existence of a dispute over the scope does not mean that there is no ‘proposed agreement’;
- Section 238(7), which provides that if Fair Work Australia makes a scope order, it can vary other orders, including protected action ballot orders. This indicates that Parliament intended that a protected action ballot could be made in circumstances where there was an unresolved dispute between the parties over the scope of an agreement; and
- Sections 236 and 237, which deal with majority support determinations, which also refer to ‘a proposed single-enterprise agreement’. Section 237(2)(b) provides that a determination must not be made in relation to ‘a proposed single-enterprise agreement’ unless the employer has refused to bargain. It follows that even where an employer refuses to bargain, a proposed enterprise agreement exists.
Ford
[26] Ford submitted that if the proposed agreement does not cover the powertrain employees, Fair Work Australia cannot be satisfied that the requirement in s.443(1) of the Act that the unions have been and are genuinely trying to reach an agreement with Ford for a proposed agreement has been met as there has been no bargaining for an agreement excluding the powertrain employees. Ford further submitted that the unions cannot unilaterally change the scope of the proposed agreement, against Ford’s wishes, and then seek to take protected industrial action without first seeking a scope order. Ford has never agreed and does not agree to bargain for an agreement which excludes the powertrain employees.
[27] Ford submitted that bargaining commenced when Ford agreed to bargain in respect of a proposed agreement to cover all of its employees and issued notices of employee representational rights, on this basis, to all employees (who, at the time, were all subject to the 2006 agreements). Up until the start of October 2009, the unions sought an agreement to cover all employees.
[28] Ford submitted that if, in fact, a proposed agreement is sought in respect of all employees, an application for a protected action ballot cannot be made until at least 30 days before the latest nominal expiry date of the transitional instruments; in the current case a nominal expiry date of 1 December 2010 in thePowertrain Agreement. 22
[29] Ford submitted that if, in fact, the proposed agreement sought by the unions does exclude the powertrain employees, or the applications are made in respect of such an agreement, the unions cannot be found to have been genuinely trying to reach an agreement which excludes powertrain employees with Ford. It relied on Full Bench authority 23 in respect of s.461 of the Workplace Relations Act 1996 (the WR Act) to submit that the unions must both have been and currently be genuinely trying to reach an agreement on the proposed agreement in respect of which the protected ballot order is sought.
[30] Ford submitted that there has been no bargaining in respect of an agreement which excludes the powertrain employees. Ford does not agree to bargain for such an agreement. If the unions wish to bargain for such an agreement, the proper course for them is to seek a scope order under s.238 of the Act.
[31] Ford submitted that the bargaining scheme of the Act is relevant when construing the protected action ballot provision of the Act. 24 The scheme of bargaining under the Act is predicated upon there being certainty about the scope of a proposed agreement, or where there is disagreement about scope, resolution of the scope issue by Fair Work Australia through either a majority support determination or a scope order. Ford submitted that bargaining under the Act begins through the giving of notices of employee representational rights under s.173 of the Act. The employees who “will be covered” by the proposed enterprise agreement must be identified at that stage in order for the employer to comply with s.173 of the Act. If there is disagreement as to the scope of the proposed agreement, the employer may refuse to bargain. In such circumstances, the employees’ bargaining representative can seek a majority support determination. If granted, the employer is then required to issue s.173 notices to the employees covered by the majority support determination and then to bargain in good faith for an agreement with that scope. Similarly, when a dispute arises about the scope of an agreement during bargaining, a bargaining representative can seek a scope order (s.238). If granted, the employer is required to issue s.173 notices and thereafter bargain in good faith for a proposed agreement with the scope set out in the order.
[32] Ford submitted that the scope of an agreement is different from the terms and conditions within an agreement, within the bargaining scheme of the Act, with the scope or focus or locus of the agreement being a basal position in relation to which the rest of the Act operates. It submitted that this basal position is established by agreement or by order of Fair Work Australia and until that occurs there can be no bargaining because there is no identification of the proposed agreement.
[33] Ford submitted that if Fair Work Australia were to grant the unions’ applications for protected action ballot orders, it would undermine the bargaining scheme within the Act and make the scope order provisions redundant.
Consideration in relation to s.443(1)(b) of the Act
[34] As noted above, there is no issue about whether theapplications havebeen made under s.437 of the Act (s.443(1)(a)). The issue for determination concerns s.443(1)(b), whether:
“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.”
[35] There is no issue with the proposition that the unions, until early October 2009, genuinely tried to reach an agreement or agreements with Ford to cover all of its employees.
[36] On the evidence, the unions changed their position in bargaining from the start of October. From that time, they sought an agreement or agreements, excluding the powertrain employees, and participated in five bargaining meetings with Ford on that basis. On the evidence, Ford insisted on an agreement or agreements covering all employees in those meetings. Other than each party asserting its position as to the scope of the agreement or agreements, no further negotiations occurred in relation to that issue. 25 The parties have continued to discuss options around other outstanding issues, principally pay rises and allowance increases.26
[37] The ballot orders sought, as amended, and as foreshadowed in correspondence from Mr Jones to Ford on 1 October, 2009, 27 involve that narrower group of employees. As such, the ballot order applications are not precluded by the nominal expiry date of 1 December 2010 in the Powertrain Agreement,28 as a result of the operation of Item 17 of Schedule 13 of the Transitional Act.
[38] The remaining issue for determination is whether, given the proposed agreement or agreements now sought by the unions excludes the powertrain employees, the unions can be found to have been genuinely trying to and continue to try to reach an agreement or agreements, which excludes powertrain employees, with Ford.
[39] I am satisfied that since 2 October 2009, the unions have been, and are, genuinely trying to reach an agreement with Ford for the employees who are to be balloted – all employees other than the powertrain employees. They have done so in a series of meetings with Ford from 6 October to 20 October 2009. They continue to do so.
[40] The changed position of the unions, following the 22 September 2009 correspondence from Ford to Mr Jones, does not prevent such a finding. As noted by a Full Bench in Heinemann Electric Pty Ltd and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 29 in the context of s.461 of the WR Act:
“The nature of industrial negotiations is such that parties’ positions and claims alter in the course of the negotiations. Claims may be added, deleted or changed and counter claims may be made in response to changing positions and circumstances. A claim might be withdrawn, but the withdrawal later compromised by another negotiating party introducing new elements into the negotiations. There seems no good reason to tie the unions’ hands in the negotiations by reference to some rediscovered notion of ambit.” 30
[41] There is no doubt that the unions modified their position in relation to the scope of the agreement sought by them, in light of the 22 September 2009 correspondence from Ford, to preserve their statutory access to protected industrial action and have bargained for an agreement of the modified scope and continue to do so.
[42] The principal case advanced by Ford against satisfaction of the statutory requirement in s.443(1)(b) relied upon its construction of the bargaining scheme of the Act and is relevant when construing the protected action ballot provision of the Act, which is predicated upon there being certainty about the scope of a proposed agreement when bargaining commences. In its construction of the bargaining scheme, Ford submitted that where there is disagreement about scope, such disagreement would be resolved by Fair Work Australia through either a majority support determination or a scope order. That construction is premised on the proposition that bargaining can commence only where the scope of the proposed agreement is determined, either by agreement or by the making of a majority support determination or scope order by Fair Work Australia.
[43] Ford’s concept of certainty as to the scope of an agreement before bargaining commences is neither expressly supported in the Act, nor supported by the bargaining scheme in the Act. The bargaining commenced by agreement, or at the initiative of an employer (s.173(2)(a)), or by a determination or scope order, is not bargaining about the terms and conditions for an agreement or agreements of a particular pre-determined scope. Rather, it is bargaining about an agreement in relation to an identified group of employees, in which the terms and conditions and the scope of the agreement or agreements to be made are matters which may be in issue between the parties and subject to bargaining in good faith.
[44] The Ford conception of the bargaining process, in which there is agreement as to the scope of a proposed agreement or the determination of it in order for bargaining to commence has several consequences which are not consistent with the bargaining scheme of the Act;
- if, as Ford submitted, agreement as to scope of a proposed agreement or determination of that scope is required for bargaining to occur and bargaining can only be about an agreement of that scope, no dispute about the scope of an agreement could arise during bargaining. There would be no role for a scope order once bargaining had commenced. There could be no dispute as to scope and no circumstances where the scope of the agreement would impede the fair and efficient conduct of bargaining;
- the Explanatory Memorandum 31 notes that “(i)f bargaining has commenced in relation to a proposed enterprise agreement, the appropriate tool to resolve issues surrounding coverage are scope orders (or bargaining orders) and not majority support determinations”. This clearly contemplates the commencement of bargaining, notwithstanding the absence of an agreement as to the scope of a proposed agreement;
- bargaining may be commenced under the Act at the initiative of the employer (s.173(2)(a)), without a requirement for the agreement of the relevant employees or their bargaining representatives. This circumstance does not conform to the Ford conception of agreement to or determination of the scope of an agreement in order for bargaining to commence;
- contrary to the Ford position, a majority support determination does not determine the scope of an agreement. Rather, it provides a means by which the bargaining processes within the Act are commenced in relation to the group of employees specified in the determination, where majority support for such bargaining exists. Once the bargaining process commences, the employer’s bargaining representative is obliged to serve notices of representational rights to employees within the scope of bargaining identified and to meet the good faith bargaining requirements in s.228 of the Act and is subject to the statutory consequences of a failure to do so (for example, good faith bargaining orders (s.229) and serious breach declarations (s.234)). Whilst a determination will commence the bargaining process and an employer would be required, in accordance with s.228 of the Act, to bargain in good faith about an agreement of the scope sought by the majority of employees, an employer is not precluded from advancing a position in bargaining for an agreement or agreements of different scope; and
- s.238(7) of the Act provides that if Fair Work Australia makes a scope order, it can vary other orders, including protected action ballot orders. This indicates a protected action ballot order could be made in circumstances where there was an unresolved dispute between the parties over the scope of an agreement.
[45] Further, the Ford proposition as to the establishment of the scope of an agreement as a pre-requisite to bargaining is inconsistent with the intent of Parliament to introduce simpler bargaining arrangements and reduced regulation of bargaining, an approach adopted on the basis that most employers and employees in Australia voluntarily and successfully bargain collectively. In that context, the instruments which may be made by Fair Work Australia are intended to focus on facilitating the bargaining processes in situations where an employer and their employees are unable to successfully bargain together. 32
[46] The commencement of bargaining does not require certainty as to the scope of an agreement. Rather, it requires specification of the employer and group of employees within the scope of bargaining for a proposed enterprise agreement. Within the bargaining, the parties may have differing views as to the scope of a proposed agreement or agreements to be made, which will be the subject of bargaining. Where the scope issue is detracting from fair and efficient bargaining, the bargaining representatives may seek a scope order, with such orders being one of the instruments Fair Work Australia can make to facilitate bargaining.
[47] I am 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, as specifiedin the amended description of the employees to be balloted.
Form of orders
[48] Ford took objection to the form of several questions proposed by the unions in their ballot orders on the basis that they do not include the nature of the proposed industrial action in a form which would enable the employees to understand the implications for them while at work and other relevant circumstances. 33
[49] That objection went to:
- Question 1 in each application, other than the CEPU and AMWU (Trades) application: “An unlimited number of stoppages of the performance of work”;
- Question 2 in each application: “A ban and limitation on the processing of paperwork”;
- Questions 2 to 4 in the AMWU Vehicle Division and APESMA applications and questions 2 to 5 of the AMWU Technical and Supervisory Division application, which refer to bans on particular work of an unspecified duration.
[50] Ford also submitted that if orders are made, they should make it clear that the powertrain employees are not eligible to vote.
[51] The AMWU Vehicle Division and APESMA accepted the submissions of Ford and sought to vary the orders to reflect Ford’s position:
- Question 1 was amended to read “An unlimited number of stoppages of the performance of all work of four hours duration”;
- In question 2 the words “and limitation” were removed and in relation to questions 2 to 4, the word “indefinite” was added before the word “ban”.
[52] The orders sought by the AMWU Vehicle Division and APESMA will be amended to the form now sought by the AMWU Vehicle Division and the AMWU Technical and Supervisory Division order will be amended in these respects and by the addition of the word “indefinite” before the word “ban” in its final question.
[53] The group of employees will be identified in each order in the manner now proposed by the AMWU Vehicle Division, with the addition of the words “For the avoidance of doubt, employees who are covered by the Ford Australia Geelong Powertrain Operations Closure Enterprise Agreement 2008 will not be covered by the proposed agreement”.
SENIOR DEPUTY PRESIDENT
Appearances:
A Weinmann for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Vehicle Division and Technical and Supervisory Division).
J Kelly for The Association of Professional Engineers, Scientists and Managers, Australia.
E McGrath for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
G Borenstein for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
S Wood, of counsel, for the Ford Motor Company of Australia Limited.
Hearing details:
2009.
Melbourne:
October 21.
1 Ford Australia Enterprise Agreement 2006 (Skilled Trades), AC302796, and the Ford Australia Enterprise Agreement 2006 (Vehicle and Salary), AC302795.
2 AC313358.
3 Marked as Exhibit Ford 2 and Exhibit AMWU 2 respectively.
4 Exhibit Ford 1.
5 Exhibit AMWU 1.
6 AC302796.
7 AC302795.
8 AC313358.
9 Exhibit Ford 1, DS-1.
10 Exhibit Ford 1, at para 25.
11 Exhibit Ford 1, DS-2.
12 Exhibit Ford 1, DS-3.
13 Exhibit Ford 1, DS-5.
14 Exhibit Ford 1, DS-5.
15 Exhibit Ford 1, DS-6.
16 Exhibit AMWU 1, at para 3.
17 Exhibit AMWU 1, IJ 1.
18 Exhibit AMWU 1, IJ 2.
19 Exhibit AMWU 1, at para 10.
20 Exhibit AMWU 1, at paras 13 and 14 and Exhibit Ford 1, at paras 52 and 53.
21 Explanatory Memorandum, at para 643.
22 Item 17 of Schedule 13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
23 United Firefighters’ Union of Australia v Country Fire Authority (2006) 158 IR 120, at 33.
24 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 381.
25 Exhibit AMWU 1, at para 14.
26 Exhibit AMWU 1, at paras 15 and 16.
27 Exhibit AMWU 1, IJ 2.
28 Item 17 of Schedule 13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
29 PR974265.
30 PR974265, at para 17.
31 Explanatory Memorandum, at para 978.
32 Explanatory Memorandum, at para r.114.
33 United Firefighters’ Union of Australia v Country Fire Authority (2006) 158 IR 120, at 31.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR990311>
0
4
0