The Australasian Meat Industry Employees' Union v Western Australian Meat Marketing Co-operative Limited
[2011] FWA 6335
•15 SEPTEMBER 2011
[2011] FWA 6335 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
The Australasian Meat Industry Employees' Union
v
Western Australian Meat Marketing Co-operative Limited
(B2011/3331)
COMMISSIONER CLOGHAN | PERTH, 15 SEPTEMBER 2011 |
Proposed protected action ballot by employees of Western Australian Meat Marketing Co-operative Limited.
[1] On 29 August 2011, the Australasian Meat Industry Employees’ Union, South Australia and Western Australia Branch (AMIEU) (“the Applicant”) made application to Fair Work Australia (FWA) for a Protected Action Ballot Order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).
[2] The employees to be balloted are employed by the Western Australian Meat Marketing Co-operative Limited trading as WAMMCO International (“the Employer”) at its meat processing operations in Katanning, Western Australia.
[3] The employees to be balloted have their conditions of employment regulated, in part, by the:
- WAMMCO International (Katanning) AMIEU Processing Agreement 2008 (AC323158) and supplemented by the WAMMCO International (Katanning) AMIEU Processing Agreement 2008 (AC323597) (“the Agreements”).
[4] The Agreements have passed their nominal expiry dates.
[5] The application was the subject of hearings and/or conferences on 1, 6 and 7 September 2011. At the conclusion of the hearing on 7 September 2011, I made a determination that the AMIEU had satisfied the relevant provisions of the FW Act and an Order should be issued (PR514290) with reasons to follow. These are the written reasons for issuing the Order.
[6] During the hearing on 1 September 2011, Mr Smith, SA and WA Branch Secretary, AMIEU gave evidence on behalf of the Applicant. Mr Bessell, Plant Manager, gave evidence on behalf of the Employer.
[7] Mr Smith gave evidence of how the AMIEU convened a meeting of its delegates and members at the Employer’s Katanning plant. From this meeting, a log of claims was drafted based on the nominally expired agreement. The log of claims was forwarded to the Employer with further explanatory material.
[8] At the first bargaining meeting, the Employer spent some time explaining its financial position in association with the AMIEU claims it was prepared to consider.
[9] Mr Smith gave evidence that the AMIEU had a “very clear understanding of exactly where the company was coming from” 1.
[10] Further meetings occurred with the Employer and separately with AMIEU members. Meetings have occurred over a number of months.
[11] Mr Smith summarised the issues that have been the subject of negotiations and concluded that “...effectively we’re really only at loggerheads over a quantum of increase...[and] pension scheme that applied in the plant” 2.
[12] The Applicant submitted that it was genuinely trying to reach agreement.
[13] Mr Bessell did not cross examine Mr Smith and conceded that his evidence, “in a general sense is relatively accurate” 3.
[14] Mr Bessell gave evidence that the Employer did not believe, at that stage, that the AMIEU was genuinely trying to reach agreement because a previous protection action ballot was not successful and “this [application] is a deliberate stalling tactic by the applicant in not genuinely trying to reach agreement by imposing a seven-week period of stall to current negotiations” 4. Further, that the application was made when the Employer has committed to providing its revised position on 2 September 2011. Finally, that the AMIEU had recently taken unprotected industrial action for a period of 25 minutes5.
[15] Having received the submissions and evidence of both parties, I came to the view that the application had been properly made and that the Applicant has been, and is, genuinely trying to reach agreement with the Employer.
[16] As a consequence of indicating my intention to issue the Order, the Employer made application that, pursuant to s.414(2)(b) of the FW Act, the order specify a “lengthier period of notice of each occasion” 6 if the ballot is successful and the Applicant engages in protected industrial action. The request for a longer period of notice was on animal welfare grounds as the Employer’s operations are currently in a cycle of processing milk-fed lambs from September to early December.
[17] Mr Smith submitted that this was the first occasion on which such an application has been put to the AMIEU.
[18] Following the request from the Employer to extend the notice period for protected industrial action, the application was adjourned to enable both the Applicant and Employer to consider their respective positions.
[19] During the adjournment, the Employer provided written material supporting its request for an extended period of notice. Further, the Employer sought that the Order “include a period of notice of a minimum of 5 days to each intended day that would include some form of protected industrial action by AMIEU members” 7.
[20] The Protected Action Ballot Order sought by the AMIEU sets out five questions to be put to the relevant employees. The questions set out the nature of the proposed protected industrial action.
[21] Following a hearing and conference on 6 September 2011, the AMIEU and the Employer agreed on a period of three (3) working days notice in relation to protected industrial action concerning:
- an indefinite ban on the performance of overtime.
[22] The AMIEU and the Employer agreed on a period of five (5) working days notice in relation to protected industrial action concerning:
- an unlimited number of stoppages of the performance of work for 7.6 hours; and
- an unlimited number of stoppages of the performance of work for 24 hours.
[23] No agreement was reached by the parties in relation to extending the period of notice beyond three (3) working days for the following forms of industrial action:
- an unlimited number of stoppages of performance of work for two (2) hours; and
- an unlimited number of stoppages for the performance of all work of twenty minutes duration which may be taken on multiple occasions during any given shift.
[24] As a result of the lack of agreement between the parties and any evidence from Mr Bessell specifically in relation to the form of industrial action outlined in paragraph [23], I incorporated into the Order, Clause 7: Liberty To Apply which enabled the Employer to apply to vary the period of written notice to be given for the industrial action described in paragraph [23]. The liberty to apply expired at 4:00pm on 14 September 2011. No application was received by FWA to vary the Order in relation to extended notice for the form of protected industrial action in paragraph [23].
CONCLUSION
[25] On 7 September 2011, I was satisfied that the procedural requirements of the FW Act in sections 437, 438 and 440 had been met. Further, having considered the relevant provisions of the FW Act, submissions, documentary exhibits and oral evidence, I determined that the Applicant has been, and is, genuinely trying to reach agreement with the Employer; on this basis I issued Order PR514290.
COMMISSIONER
Appearances:
Mr G Smith for the Applicant Union.
Mr A Bessell, on behalf of the Respondent.
Hearing details:
2011:
Perth
1, 6 and 7 September.
1 PN 73
2 PN 73
3 PN 75
4 PN 85
5 PN 85
6 PN 109
7 Exhibit R1
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