Had Not Genuinely Tried to Reach Agreement

A union has been told its protected action ballot application has been prematurely made, after it held one meeting with a HR officer of the employer. And to make matters worse, only two out of 11 claims on the union’s list were even discussed at that meeting, which came less than five hours after the company had received the claims.

The union’s claims included an 8% wage claim and a redundancy provision which gave employees a choice of transfer between depots, or redundancy pay. The company responded that 8% was way out of the range and that if a transfer was on the cards, then that was better than redundancy as the company wanted to preserve jobs.

The union reaction was to assume that no further progress on these two claims was possible so sought a protected action ballot.

But the FWC was unimpressed, especially when the union had itself postponed subsequent bargaining meetings and had not even discussed the remaining nine claims at all. The FWC said “both parties made only brief, perfunctory observations and comments about the wage and redundancy claims. The evidence does not reveal discussion of substance regarding these, or any of the other nine claims, during the first meeting. The dialogue, such as it was, amounted to nothing more than light parrying.”

The FWC said it did not think the union was genuinely trying to reach agreement (a prerequisite to getting a protected action ballot) and went on to say “the words “genuinely trying” in s.443(1)(b) of the Act must have some work to do. I consider they would be rendered meaningless if a protected action ballot order was made in this case”.

United Workers’ Union v Toll Transport Pty Ltd [2019] FWC 7964 (21 November 2019)