Transport Workers' Union of Australia
[2009] FWA 99
•17 AUGUST 2009
[2009] FWA 99 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
(B2009/10469)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 17 AUGUST 2009 |
Proposed protected action ballot by employees of Brinks Australia Pty Ltd; ‘genuinely trying to reach agreement’.
[1] The Transport Workers Union of Australia (TWU) on 14 August 2009 filed an application for a protected action ballot order in relation to its members employed by Brinks Australia Pty Ltd (Brinks) at the company’s Alexandria depot in NSW. A hearing was held on 17 August 2009.
[2] The first two sub-sections of section 443 of the Fair Work Act (2009) (the Act) provide as follows:
“(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] I am satisfied that the application has been made under section 437. I am not however satisfied on the evidence presented at the hearing that the TWU has been genuinely trying to reach an agreement with the employer. This is for the following reasons.
[4] In the relevant statutory context ‘an agreement’ must mean an enterprise agreement under the Fair Work Act. The employees at Brinks’ Alexandria depot are currently employed under a preserved State agreement, which expired late last year.
[5] I am satisfied that negotiations over pay and conditions have been conducted since late last year. However, I accept Brinks’ submission that the negotiations up until now have been over a proposed variation of the current preserved State agreement rather than an enterprise agreement under the Fair Work Act.
[6] This submission was supported by a copy of a letter dated 9 April 2009 tendered by Brinks (Exhibit B1) from the TWU’s senior negotiator, Mr Glenn Nightingale, to the Brinks Operations Manager, Mr Ron Higgins.
[7] This letter was headed:
“Re-NSW TWU claims for variation of the Brinks Australia Pty Ltd NSW Agreement – CIT Employees – 2005, as in schedule 7 clause 2A & Schedule 8 clause 16a of the WR Act”
[8] It continued:
“In order to vary NSW State agreements (3) fundamental things must occur and that is the parties and the valid majority of employees must genuinely agree to any variations or changes. Secondly that the employees will not be disadvantaged in any way by reference to specific Award entitlements and thirdly that any threatened or actual industrial action has not occurred after 13 February 2008.”
[9] While the evidence indicates that further discussions have been held between the parties since this letter, no evidence was presented that the TWU have altered the type of arrangement they are seeking. As I am not satisfied that they have genuinely tried to make an enterprise agreement under the Fair Work Act I am required by section 443 (2) to dismiss the application. I therefore do so.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr N McIntosh, for the TWU
Mr P Gurran, for Brinks
Hearing details:
2009
17 August
SYDNEY
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