Transport Workers' Union of Australia v Linfox Armaguard

[2017] FWC 5733

[2017] FWC 5733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Linfox Armaguard
(B2017/1037)

DEPUTY PRESIDENT KOVACIC CANBERRA, 3 NOVEMBER 2017

Proposed protected action ballot of employees of Linfox Armaguard.

[1] This is an application by the Transport Workers’ Union of Australia (the Union) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Linfox Armaguard (Linfox) based at 4 Kembla Street, Fyshwick in the ACT. The application was made to the Fair Work Commission (the Commission) on 1 November 2017

[2] The Union provided a Statutory Declaration addressing the statutory grounds. The Statutory Declaration makes it clear that the parties have met regarding the proposed terms of the enterprise agreement.

[3] Linfox opposed the Union’s application on the basis that it considered the Union was not genuinely trying to reach an agreement.

[4] Accordingly, the Commission listed the application for hearing on 3 November 2017. At the hearing Mr Klaus Pinkas, the Union’s ACT and Far South Coast Sub Branch Secretary, appeared for the Union, while Ms Jocelyn Fredricks, Linfox’s Group Manager Employee Relations, appeared with Mr Narishen Naidoo for Linfox.

[5] Key points to emerge from the hearing were;

• there have been four bargaining meetings to date (17 and 25 July, 29 August and 13 October 2017);



• the Union had proposed a rollover of the existing enterprise agreement covering employees and annual wage increases of 2.5 per cent;



• Linfox initially proposed a wage freeze which was rejected by Union members;



• Linfox subsequently proposed an agreement involving a number of changes to conditions of employment and proposed annual wage increases of 1 per cent, with that revised proposal also rejected by Union members; and



• Mr Naidoo met informally with Union delegates on 2 November 2017 with those discussions potentially providing the basis for further negotiations given that there may be movement on some issues.

[6] While the Union’s position does not appear to have shifted in the negotiations to date, that of itself does not mean that the Union is not genuinely trying to reach an agreement. Further, the indication that there may be movement on some issues arising from the meeting between Mr Naidoo and Union delegates on 2 November 2017 does not support a finding that the Union is not genuinely trying to reach an agreement.

[7] Section 443(1) of the Act provides that:

“(1) The 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) the 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.”

[8] Further, s.441(1) of the Act requires that the Commission “must, as far as practicable, determine an application for a protected action ballot order within two working days after the application is made”.

[9] On the basis of the material before me, I am satisfied the requirements in s.443(1) of the Act have been met.

[10] In opposing the Union’s application, Linfox proposed that if the Commission were to grant the order sought by the Union that the period of written notice of any industrial action be seven working days due to exceptional circumstances. More specifically, Linfox submitted that the Road Crew carry firearms and large amounts of cash and the security of that cash and the safety of employees, customers and the general public would be at risk if there were not sufficient time for it to put in place appropriate contingency plans. Linfox reiterated that view at the hearing on 3 November 2017. Discussions between the parties resulted in agreement that the period of notice would be five working days for any industrial action involving stoppages of more than four hours in duration and three working days for all other industrial action.

[11] Against that background, I will make an order. The order (PR597400) is based on the draft order provided by the Union, and reflects the agreement of the parties regarding the period of written notice of industrial action. As required by s.443(5) of the Act, I am satisfied given the nature of Linfox’s operations that there are exceptional circumstances warranting the longer notice period.

[12] The order will be issued in conjunction with this decision.

Appearances:

K. Pinkas for the Applicant

J. Fredericks with N. Naidoo for the Respondent

Telephone Hearing details:

2017.

Canberra:

November 3.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR597399>