Transport Workers' Union of Australia-Western Australia Branch v General Pathology Laboratories

[2010] FWA 1247

[2010] FWA 1247

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia-Western Australia Branch
v
General Pathology Laboratories
(B2010/2665)

COMMISSIONER CLOGHAN PERTH, 17 FEBRUARY 2010

Proposed protected action ballot by employees of General Pathology Laboratories.

[1] On 11 February 2010, the Transport Workers’ Union of Australia (“the Applicant”) made an application for a Protected Action Ballot Order to Fair Work Australia (FWA) pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[2] The Order is sought against General Pathology Laboratories (“the Employer”).

[3] The application was heard in Perth on 16 February 2010.

[4] The Applicant was represented in Perth by Mr N Hodgson and Mr Cain. The Employer was represented by Mr Douglas, General Manager, Employee Relations in Melbourne by teleconference. Both Applicant and Employer called one witness each: Mr Dawson, TWU Organiser and Mr Ball, WA State Manager respectively.

[5] At the conclusion of the hearing, I gave a commitment to provide my response to the application by close of business today. I gave this commitment to meet, as best as practicable, the requirements of s.441 of the Act. This decision has been made without the benefit of transcript, and consequently, some of the customary practices relating to decisions may fall short.

BACKGROUND

[6] The Employer provides pathology services. A small proportion of the workforce are engaged as courier drivers. The number of courier drivers is estimated to be between 16 and 40. The majority of the courier drivers are female, employed on a part-time or casual basis. I was advised that the employees are regulated by the Health Professionals and Support Services Award 2010 and are paid $16.94 per hour.

[7] The Applicant asserted that it had met the requirements of s.437(1) and (3), s.440 and s.443(1) of the Act.

[8] To meet the requirement of s.443 (1)(b) and s.443(2) that 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.”

Mr Hodgson called Mr T Dawson to give evidence of discussions/negotiations to date with the Employer.

DISCUSSIONS/NEGOTIATIONS

[9] Mr Dawson gave evidence that, as TWU Organiser, it was his role to represent members employed as courier drivers by the Employer.

[10] In July 2009, he was contacted by TWU members employed by the Employer seeking an improvement in their wages.

[11] Mr Dawson gave evidence of seven (7) or eight (8) meetings with Mr Ball and telephone discussions with Mr Douglas.

[12] Mr Dawson stated that he was seeking parity in wages for the courier drivers with the rest of the industry and an improvement in their conditions. Further, Mr Dawson gave evidence that Mr Ball, while sympathetic to an enterprise agreement, could not give any commitments and referred him to Mr Douglas. Mr Ball indicated that an increase in wages was unlikely, as was an enterprise agreement, for the employees.

[13] In cross examination, Mr Dawson conceded that other than seeking parity of wages with the rest of the industry, he did not put an actual dollar figure for the Employer to consider, except to indicate that he had, “in mind”, $17.50 or $18.00 per hour. Further, Mr Dawson conceded that while he discussed with Mr Ball workplace issues, he had not put specific claims. Finally, Mr Dawson, in cross examination, confirmed that no formal claim had been put either verbally or in writing, to the Employer of what the Applicant was seeking.

[14] In conclusion, Mr Dawson advised that, if asked by the Employer, he would have reduced the claims to writing.

[15] For the Employer, Mr Ball in Examination in Chief, gave evidence that he commenced in March 2009 as the State Manager and had an introductory meeting with Mr Dawson and a further four (4) meetings.

[16] Mr Ball’s testimony was that, at the first meeting, he was thanked by Mr Dawson for the 2.5% wage increase for courier drivers and asked whether there was “any more”; which Mr Ball replied, “not in the short term”.

[17] Mr Ball indicated to Mr Dawson that the outcomes of the Commonwealth Budget, as it related to pathology services, was a factor in the Employer not being able to increase further the wages of the courier drivers. And, as he was not an expert in employee relations, referred Mr Dawson to Mr Douglas.

[18] Mr Ball confirmed what was revealed in cross-examination of Mr Dawson, that there was no specific wage or other claims by the Applicant verbally or in writing, except to quote (from the back of a business card) what other companies were paying courier drivers.

CASE LAW

[19] Mr Douglas referred me to:

• Ford Motor Company of Australia Limited v CEPU and ors [2009] FWAFB 1240; and



• The Australian Workers Union v Industrial Galvanisers Corporation Proprietary Ltd t/as Industrial Galvanisers Port Kembla t/as Industrial Galvanisers Port Kembla [2009] AIRC 453.

[20] Mr Hodgson referred me “from memory” to the “Total Maritime Services case”. I have made the assumption that he is referring to [2009] FWA 187 or [2009] FWAFB 368. In particular, he recalled there being no requirement for “rigid rules” in determining when a party is genuinely trying to reach agreement with the employer on a proposed agreement.

[21] Mr Hodgson is correct in recalling the phrase “rigid rules” as it was used by the Full Bench in Total Maritime Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368. However, the Full Bench used the phrase in context, and, in my view, never intended to convey the position that any actions of a party are sufficient to meet the test of whether a party is genuinely trying to reach agreement on a proposed agreement. The Full Bench, in my view, was advising parties that it would be inappropriate for FWA to set down a precise inflexible set of rules to assess whether a party is genuinely trying to reach agreement.

[22] The Full Bench simply and succinctly states that, to determine whether a party is genuinely trying to reach agreement:

“involves a finding of fact applied by reference to the circumstances of the particular negotiation” 1

[23] The circumstances of these particular negotiations between the Applicant and the Employer are as follows:

• between five (5) and eight (8) face to face meetings between the TWU Organiser and WA State Manager;



• the meetings appear to be more of a general discussion than achieving an enterprise agreement;



• a request of the WA State Manager for the TWU Organiser to discuss the proposals with the General Manager, Employee Relations in Melbourne;



• two telephone discussions between the General Manager and the TWU Organiser;



• no specific wages or conditions claims (except “parity”) put by the Union Applicant to the Employer;



• no claims put, either verbally or in writing, by the Applicant to the Employer; and



• a general response by the Employer to the Applicant, that it was unlikely to agree to a further wage increase, in the short term, for budgetary reasons.

[24] While the course of reaching an enterprise agreement is never a straight line series of “lock step” events, there are certain characteristics which industrial practitioners would see as normal in negotiations.

[25] Many of the events which I have described in paragraph [23] would be seen as part of preparations for negotiations on an enterprise agreement and not meeting the test in s.443(1)(b) that the Applicant:

“…has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted”.

[26] While there are no “rigid rules”, a good precept to apply is, will this assist in meeting the test in s.443(1)(b)? If so, do it. Generally, such actions are not burdensome but what is expected in seeking to genuinely achieve an enterprise agreement.

CONCLUSION

[27] For the scarcity and content of evidence, I am not satisfied that the pre-requisite in s.443(1)(b) has been met, and consequently, I am unable to issue the Order as sought by the Applicant.

COMMISSIONER

Appearances:

Mr N Hodgson and Mr D Cain, on behalf of the Transport Workers Union of Australia Western Australia Branch

Mr J Douglas and Mr B Ball, on behalf of General Pathology Laboratories

Hearing details:

2010

Perth:

16 February

 1   2009 FWAFB 368 para 31

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