Transport Workers' Union of Australia v Metroll Manufacturing Pty Ltd T/A Metroll

[2017] FWC 5655

[2017] FWC 5655

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Metroll Manufacturing Pty Ltd T/A Metroll
(B2017/1012)

DEPUTY PRESIDENT BULL PERTH, 30 OCTOBER 2017

Proposed protected action ballot of employees of Metroll Manufacturing Pty Ltd.

[1] On 25 October 2017, 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 Metroll Manufacturing Pty Ltd (Metroll/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 enterprise 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 F34B Statutory Declaration made by Mr Michael Knowles (signed 25 October 2017), WA Lead Organiser for the TWU, advised that the current enterprise agreement – Metroll Truck Drivers and Loaders Enterprise Agreement 2015 expired on 30 June 2017.

[4] Mr Knowles stated that since the commencement of negotiations for a new enterprise agreement, meetings have taken place between the TWU and representatives of the respondent on 19 June, 7 August, 7 September and 23 October 2017.

[5] Mr Knowles stated that the respondent provided a draft proposed agreement to the applicant on 23 October 2017. A meeting of TWU members occurred on 24 October 2017 where the respondent’s draft proposed agreement was discussed, however the proposed agreement was rejected by the members. An email was sent to the respondent that same day advising of the outcome and confirming the applicant’s availability for further discussion with the respondent.

[6] Despite the negotiations between the parties no agreement has been reached, with there being outstanding issues relating to annual wage increases, back-pay, the inclusion of current terms and the nominated expiry date of the agreement.

[7] By way of email dated 30 October 2017, Mr Gaurav Shah on behalf of the respondent advised that Metroll do not oppose the TWU application.

[8] 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.

[9] 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)

[10] 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.

[11] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the TWU as stated in Mr Knowles’ statutory declaration, 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.

[12] 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 [PR597258] based on the draft provided by the TWU is issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR597257>