Transport Workers' Union of Australia v George Weston Foods Ltd T/A Tip Top Bakeries (Canning Vale)

[2018] FWC 493

[2018] FWC 493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
George Weston Foods Ltd T/A Tip Top Bakeries (Canning Vale)
(B2018/45)

DEPUTY PRESIDENT BULL PERTH, 24 JANUARY 2018

Proposed protected action ballot of employees of George Weston Foods Ltd.

[1] On 19 January 2018, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the Transport Workers’ Union of Australia (TWU/applicant) for a protected action ballot order in relation to certain employees employed by George Weston Foods Ltd T/A Tip Top Bakeries (Canning Vale) (Tip Top/respondent).

[2] The employees to be balloted are members of the TWU employed by the respondent in the classifications to be covered by the proposed agreement, in the State of Western Australia, who will be subject to the proposed agreement and for whom the TWU is a bargaining agent.

[3] In support of its application, the TWU filed a Form F34B Statutory Declaration made by Mr John Cutrali (signed 19 January 2018), WA Branch Organiser for the TWU.

[4] In his statutory declaration Mr Cutrali advised that the current enterprise agreement, Tip Top Bakeries (Canning Vale) Breadcarters’, Loaders and Merchandisers’ Agreement 2014, expires on 3 February 2018.

[5] Section 438 of the Act prescribes that an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the agreement. The lodgment of this application on 19 January 2018 is within 30 days of the nominal expiry date, in line with the requirements under s.438 of the Act.

[6] Mr Cutrali stated that negotiations for a new enterprise agreement commenced on 12 October 2017, with five meetings having taken place between the TWU and representatives of the respondent since bargaining commenced, the most recent meeting occurring on 17 January 2018.

[7] Mr Cutrali stated that at the commencement of bargaining the respondent issued a document dated 12 October 2017 proposing to offer employees wage increases of 1% per year in exchange for changes to existing terms of employment, which included changes to the span of hours, voluntary overtime and the removal of the Loader classification of Grade 2, with the proposed agreement to be in place for a four year period. 1 A copy of the respondent’s 12 October letter was annexed to the application.

[8] Mr Cutrali stated that on 26 October 2017 the TWU sent the company a Log of Claims, and subsequently sent a letter on 11 December 2017 which included the TWU’s new suggestion for the employment conditions to remain unchanged except for pay rates, for which it sought an increase of 3% per year.

[9] Mr Cutrali stated that the respondent subsequently increased its proposed wage increase to 1.5% per year on condition the employees accepted the changed employment conditions and the respondent advised it would put that proposal to the employees for voting.

[10] Mr Cutrali stated that the members of the TWU have instructed that they do not accept the proposal put forward by the respondent, and despite the negotiations between the parties, there remain outstanding issues relating to annual wage increases and the inclusion of current terms in the new agreement.

[11] By way of email dated 23 January 2017, Mr Arthur Bajada on behalf of the respondent advised that George Weston Foods Ltd do not oppose the TWU application. Mr Bajada sought to clarify typographical errors regarding the name and address of the respondent and the name of the enterprise agreement. He further submitted that the respondent did not seek the removal of the Grade 2 Loader classification and identified that the respondent’s recollection was that the TWU had sought wage increases of 3% in each year of the agreement at the 14 December meeting, although the statutory declaration at 2.1, point 6, stated the “employees’ bottom line was a rollover of current agreement in return for wage increases of 2% in each year of agreement”.

[12] Under s.437 of the Act, a bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply to the Commission for an Order requiring a protected action ballot to be conducted (within a specified period) to determine whether employees wish to engage in particular protected industrial action for the agreement.

[13] The specific terms of s.443 are extracted below:

443 When FWC must make a protected action ballot order

(1) FWC 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) FWC 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) FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(My underline)

[14] The legislation as expressed at s.443(1) requires that the Commission must make a protected action ballot order if satisfied the applicant has been, and is, genuinely trying to reach an agreement with the employer.

[15] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the information provided in Mr Cutrali’s statutory declaration, and taking into account the clarifications made by Mr Bajada, that the TWU has been and is, genuinely trying to reach an agreement with the respondent. There was nothing put to question the bona fides of the TWU’s claim to be genuinely trying to reach an agreement with the respondent.

[16] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and an order [PR599784] based on the draft provided by the TWU is issued in conjunction with this decision.

DEPUTY PRESIDENT

 1   In its email correspondence of 23 January 2018 to the Commission, the respondent disputes that it proposed the removal of the Loader classification of Grade 2. The 12 October letter, annexed to the application by the TWU, states at point 9: “New Warehouse employees employed after Agreement Approved to be paid at Grade 1”.

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