United Voice Western Australian Branch vGoodman Fielder Limited

[2011] FWA 1870

[2011] FWA 1870

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

United Voice Western Australian Branch

v

Goodman Fielder Limited
(B2011/2615)

and

Transport Workers' Union of Australia
v
Goodman Fielder Limited
(B2011/2614)

COMMISSIONER CLOGHAN PERTH, 31 MARCH 2011

Proposed protected action ballot by employees of Goodman Fielder Limited.

[1] On 2 March 2011 at 4:32pm Western Standard Time (WST), United Voice made application to Fair Work Australia (FWA) for a Protected Action Ballot Order pursuant to s.437 of the FairWork Act 2009 (“the Act”) (B2011/2615).

[2] On 2 March 2011 at 4:33pm WST, the Transport Workers’ Union of Australia (TWU) also made application to FWA for a Protected Action Ballot Order pursuant to s.437 of the Act (B2011/2614).

[3] The employees to be balloted are employed by Goodman Fielder Limited (“the Employer”) who are members of United Voice and the TWU at the Employer’s Buttercup Bakery in Malaga, Western Australia and who will be covered by a proposed replacement enterprise agreement.

[4] The employees to be balloted have their conditions of employment regulated, in part, by the following:

• Buttercup Bakery Malaga (WA) - LHMU Bakehouse Union Collective Agreement 2008; and



• Buttercup Bakery Malaga (WA) Breadroom, Distribution and Maintenance Collective Agreement.

[5] The nominal expiry date of both agreements is 28 February 2011.

[6] Both applications were heard and determined on 8 and 9 March 2011. At the conclusion of the hearing, I was not satisfied that at the time of the application, United Voice and the TWU had been and were genuinely trying to reach an agreement with the Employer of the employees who are to be balloted. For this reason, I was unable to issue the Orders sought by the applicants. This Decision sets out the reasons for not issuing the Orders sought in applications B2011/2615 and B2011/2614.

RELEVANT BACKGROUND FACTS

[7] Between 17 June and 1 November 2010, Ms Pnacek, Organiser with the then Liquor, Hospitality and Miscellaneous Union (LHMU) attempted unsuccessfully, on three occasions, to engage with the Employer in preparation for a replacement enterprise agreement for the employees to be balloted 1.

[8] Ms Pnacek’s email to the Employer on 1 November 2010 sought dates for a proposed first bargaining meeting and expressed both unions’ interest in combining the current agreements into one 2.

[9] The Employer’s representative advised Ms Pnacek of his impending departure from the Company, its interest in one combined agreement and that his replacement, “will be in touch very soon to work out some proposed dates” 3.

[10] Between 17 June and 1 November 2010, a local Consultative Committee meeting occurred in which an agenda item was the next “EBA increase” 4.

[11] Various discussions and proposed meetings between representatives of the LHMU and the Employer occurred in November and December but no bargaining meetings occurred.

[12] On 6 January 2011, Mr Dane, Organiser with the LHMU sought, through the WA State Operations Manager, the commencement of bargaining meetings in the week commencing 17 January 2011 5.

[13] The first bargaining meeting set down for 31 January 2011 was rescheduled, on 27 January 2011, to 17 and 18 February 2011. While the Employer contends that the reason for the postponement of the meeting was due to the TWU Organiser, Mr Cain, being unable to attend the bargaining meeting due to surgery, Mr Cain gave oral evidence to the effect that Ms Zampin, the Employer’s Human Resources Manager had already cancelled the meeting due to her inability to travel to Perth 6 and not because of his surgery.

[14] On 4 February 2011, Mr Clark, the LHMU’s Team Lead (Industrial) informed the Employer that while noting “stalled negotiations”, the Union was “keen” to get discussions “on track” and requested that “representational rights be sent to all employees to be covered by the agreement”. Further, the LHMU sought, in view of the delays, that the Employer give a commitment that “any pay and conditions improvement negotiated will be effective from the expiry of the current agreement”. Finally, the LHMU sought a schedule of meetings to commence on the week commencing 21 February 2011 7.

[15] On the same day (4 February 2011), Ms Zampin advised that due to an error, notice of employee representational rights issued to the employees did not state that the proposed agreement would cover the AMWU. As a consequence, new notices to employees had to be issued -- this was done between 7 and 9 February 2011, with the requisite 14 day period for employees to respond. The reissue of the notice to employees had a return date of 23 February 2011 which meant that the initial bargaining meeting scheduled for 17 and 18 February 2011 was postponed to 3 March 2011 8.

[16] On 2 March 2011 at 4:03pm WST the LHMU, now known as United Voice, forwarded to Ms Zampin a joint log of claims on behalf of itself, the TWU and the AMWU. The time in South Australia where Ms Zampin was located was 6:33pm 9.

[17] The three unions - United Voice, TWU and AMWU had met throughout January 2011, and at some time in February completed its final log of claims 10.

[18] On 3 March 2011 the first bargaining meeting of the parties took place. Among the issues discussed was a claim that, “The ratio of permanent and casual employees shall be 85 per cent permanent and 15 per cent casual (including 10 per cent skilled staff and 5 per cent casual employees)” 11.

[19] On 4 March 2011, after becoming aware that the item (ratio of permanent to casual employees) may be a non permitted matter for the purposes of an agreement, United Voice amended the log of claims and sent a copy to Cheryl Varpin 12.

[20] It was conceded by United Voice and the TWU that the amended claim relating to labour hire contractors and permanency was not discussed with the AMWU at that time.

[21] RELEVANT STATUTORY FRAMEWORK

• Section 437 - Application for a protected action ballot order




Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWA for an order (a protected action ballot order ) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

• Section 441 - Application to be determined within 2 days after it is made




(1) FWA must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.

• Section 442 - Dealing with multiple applications together




FWA may deal with 2 or more applications for a protected action ballot order at the same time if:

(a) the applications relate to industrial action by:

(i) employees of the same employer; or

(ii) employees at the same workplace; and

(b) FWA is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.

• Section 443 - When FWA must make a protected action ballot order




(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) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

DISCUSSION AND CONCLUSION

[22] Looking through the eyes of a reasonable person, because that is what the Tribunal must do, the relevant circumstances are that United Voice, the TWU and AMWU completed their log of claims in February 2011, sent it to the Employer on 2 March 2011 at 4:03pm WST and 30 minutes later, United Voice and the TWU filed in FWA for a Protected Action Ballot Order without the first bargaining meeting having taken place.

[23] Further, it was acknowledged that the log of claims would have arrived in South Australia out of normal office hours at 6:33pm.

[24] Finally, the log of claims forwarded to the Employer on 2 March 2011 may have contained a non permitted matter for the purposes of a replacement agreement.

[25] Having ascertained the relevant circumstances, the Tribunal has to ask itself whether it can be satisfied that United Voice and the TWU have been, and are genuinely trying to reach agreement with the Employer, in accordance with s.443 of the Act.

[26] If the appropriate and only test for “genuinely trying to reach agreement” is for the Tribunal to determine whether the applicant unions were trying to meet and bargain with the Employer, on the evidence presented, I would have been satisfied and issued the Orders. However, the appropriate test is not just a desire to hold bargaining meetings with the Employer.

[27] “Genuinely trying to reach agreement” can only be what it is meant to be, by looking at the merits or demerits of the particular facts of the application.

[28] The merits of this particular application are certainly the persistence of the two unions in their attempts to meet with the Employer. However, the demerits of the application are that it would be perverse to say that the two unions are genuinely trying to reach agreement on a log of claims which the Employer had only been forwarded, for the first time, some 30 minutes earlier.

[29] While the Act does not prescribe that a log of claims is required for bargaining to commence, it would be unusual for industrial negotiations to continue for very long without each party seeing and responding to each other’s documented claims. It is common, in industrial negotiations, for parties to meet in preparation to negotiations and exchange views on: representatives to attend; location of meetings; frequency of meetings; communications; information requirements and each party’s objectives. However, the demerits of this application are that even preparation meetings of this nature had not taken place despite the best efforts of the Applicants.

[30] While bargaining meetings (or lack of them) may be regarded favourably or unfavourably by the Tribunal in determining an application for a Protected Action Ballot Order, they are but one factor in negotiations. Depending on the circumstances, it may be appropriate that an Order be issued even though no bargaining meetings have occurred, however, that is not the circumstances in these applications.

[31] Apart from the recently sent log of claims, the applicant unions, at the time of making the application for Protected Action Ballot Orders, would not have been aware of: the Employer’s position on the proposed agreement, costings of claims, priorities or objectives of the Employer, procedural requirements of the parties, timing of matters, alternatives or proposals to achieve a replacement agreement.

[32] I appreciate the submission of the Employer that the applicant unions were pursuing a non permitted matter within the meaning of s.172(1)(a) of the Act and that of itself, negates “genuineness”. In view of my comments above, it is not necessary to enquire into and determine the answer to the question of whether the claim was a permitted or non permitted matter. I note that the applicant unions do not concede that the claim was a non permitted matter and that there are particular historical circumstances relating to the issue. Notwithstanding this situation, the applicant unions changed their clause in the log of claims for the following day’s negotiations.

[33] In conclusion, for various reasons discussed above, I consider that the applicant unions rightly feel aggrieved at the tardiness and competence of the Employer to commence preparatory meetings prior to bargaining negotiations. This situation was further exacerbated following the botched issuing of the notice of representational rights. However, these issues are not determinative of the application and an objective appraisal of the applicant unions’ actions in providing the Employer with a log of claims 30 minutes prior to filing these applications together with the absence of bargaining meetings is not demonstrative of conduct which “has been and is genuinely trying to reach an agreement with the employer of employees who are to be balloted”.

[34] These are the reasons why I dismissed the above applications on 9 March 2011.

COMMISSIONER

Appearances:

Mr Clark, of United Voice.

Mr Cain, of the Transport Workers Union of Australia.

Mr Wong, of Norton Rose and Ms Zampin for Goodman Fielder Limited.

Hearing details:

2011

Perth:

8 and 9 March

 1   Exhibit A1(1), (2) and (4).

 2   Exhibit A1(4).

 3   Exhibit A1(4).

 4   Exhibit A1(3).

 5   Exhibit A1(60.

 6   PN 256.

 7   Exhibit A1(8).

 8   Exhibit A1(9) and (10).

 9   PN 91

 10   PN 97 and 98.

 11   PN 131.

 12   Exhibit A1.

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