Application by Transport Workers’ Union of Australia

[2021] FWC 5086

[2021] FWC 5086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Application by Transport Workers’ Union of Australia
(B2021/637)

DEPUTY PRESIDENT BOYCE SYDNEY, 20 AUGUST 2021

Proposed protected action ballot of employees of FedEx Express Australia Pty Ltd T/A FedEx Express.

[1] On 6 August 2021, theTransport Workers' Union of Australia (TWU), made an application for a Protected Action Ballot Order (PABO). The application was made pursuant to s.437 of the Fair Work Act 2009 (Act), in respect of members of the TWU who are employees of FedEx Express Australia Pty Ltd trading as FedEx Express(FedEx) and whose employment is to be regulated by a proposed enterprise agreement to replace the TNT – TWU Fair Work Agreement 2017-2020 (which nominally expired on 30 June 2020).

[2] The application seeks a ballot of employees of FedEx who are members of the TWU who would be covered by the proposed enterprise agreement. The application was supplemented with three witness statements of Mr Shane O’Brien, TWU Strategic Campaigns Lead, dated 6 August 2021, 13 August 2021, and 16 August 2021. In summary, Mr O’Brien’s statements provided information about events involving attempts made by the TWU to reach agreement with FedEx on the terms of a proposed enterprise agreement. Bargaining for a proposed enterprise agreement commenced on 26 March 2021 (notification time), with an NERR issued to relevant employees on 9 April 2021.

[3] The Fair Work Commission (Commission) received correspondence dated 9 August 2021, from Ashurst lawyers acting for FedEx advising that FedEx opposed the TWU PABO application. The matter was allocated to my Chambers that afternoon. I listed the matter for directions on 10 August 2021, at which time the parties agreed on a timetable, with a Hearing set down for 16 August 2021. I note that at the conclusion of the Hearing, FedEx requested and was granted further time to advise my Chambers as to the period of time that FedEx would require to be in a position to comply with the provision of a list of relevant employees (around 3,300) for ballot purposes.

[4] Permission was granted, pursuant to s. 596 of the Act, for the parties to be represented by lawyers. At the Hearing, the following appearances were recorded:

(a) Mr P Boncardo, of counsel, appearedfor TWU, instructed by Ms L Biviano, TWU Legal Officer; and

(b) Mr R Wade and Ms M Taylor, of Ashurst lawyers, appeared for FedEx, instructed by Mr M Brennan, FedEx Managing Director Legal, and Ms L Inturrisi, FedEx Regional Manager People Operations.

Statutory provisions

[5] The determination of this matter is relevantly governed by s.443 of the Act, which reads:

“443 When the FWC must make a protected action ballot order

(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.

(2) The 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).

(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 the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If the FWC 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.”

[6] A protected action ballot order may only be made in limited circumstances and the Commission does not have the discretion, other than to make an order, if it is satisfied that there has been a valid application made under s.437 of the Act, and that the applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. It is not contested that the TWU is a bargaining representative for employees who will be covered by the proposed enterprise agreement, that there has been a notification time for the proposed enterprise agreement that preceded the PABO application being filed, and that the PABO application relevantly specifies the group of employees to be balloted and the questions to be put to employees who are to be balloted as to the nature of the industrial action that is proposed to be taken (including in relation to my findings set out at paragraph [25] of this Decision). On the materials before me I am equally satisfied as to these matters, meaning that the PABO application has been validly made under s.437 of the Act.

Bargaining meetings and negotiations

[7] At the Hearing, the evidence of the TWU, provided by Mr O’Brien, identifies that the parties have held five bargaining meetings between 21 April 2021 and 5 August 2021, with each bargaining meeting being one to two days (seven days in total). During the course of these bargaining meetings, the parties have each put forward a range of claims and exchanged views and positions in respect of such claims. 1

TWU Log and bargaining position

[8] In respect of the Log of Claims advanced by the TWU (TWU Log), provided to FedEx representatives during the bargaining meeting on 27 May 2021, Mr O’Brien, on behalf of the TWU gives evidence that:

(a) The TWU have only been pursuing claims in respect of a proposed enterprise agreement that, to the best of Mr O’Brien’s knowledge (as TWU bargaining lead), are permitted matters under s.172(1) of the Act. This is equally reflected in clause 8 of the TWU Log, which reads:

“The provisions of the [proposed enterprise agreement] will be limited to matters which are permitted matters within the meaning of section 172(1) of the Fair Work Act.”

(b) The TWU has at all times been genuinely trying to reach agreement with FedEx; and

(c) Despite (b), the TWU have been unable to reach agreement with FedEx, and bargaining appears to have come to an impasse. This contention is supported by the uncontentious evidence that at the last bargaining meeting held on 5 August 2021, FedEx put forward a “final offer” to the TWU. The TWU rejected that offer on the basis that it falls well short of the TWU’s claims. 2

FedEx position – TWU not genuinely trying to reach agreement

[9] The evidence of Mr O’Brien, that the TWU has at all times been genuinely trying to reach agreement, is disputed by FedEx. At its core, this contention is based upon the fact that, prior to FedEx giving notice that it would be opposing the PABO, the TWU has been advancing and maintaining claims in respect of matters that could not be included in an enterprise agreement (despite objection by FedEx as to same during bargaining meetings). 3

[10] Ms Inturrisi’s evidence is that in her opinion, based upon legal advice received by FedEx, 4 various claims advanced by the TWU during bargaining are clearly non-permitted matters, and that despite FedEx communicating these concerns to the TWU during bargaining (at meetings, and outside meetings), the TWU has continued to press same throughout negotiations. This evidence is said to be supported by FedEx’s tabulated response to the TWU Log, supplied to the TWU via email on 23 June 2021, and in advance of the bargaining meeting held on 24 June 2021.5 More specifically, Ms Inturrisi gives the following evidence concerning FedEx’s objections to non-permitted matters during bargaining meetings:

“18. The Respondent's objections to the respective clauses - on the basis that they introduced non-permitted matters - were raised with the Applicant during the negotiation meetings as follows:

a) As alluded to above, the objections to clauses 19.2 and 31 were raised during the course of the negotiation meeting on 27 May 2021.

b) The objections to clauses 3(f), 3(h) and 13(f) were raised during the course of the negotiation meeting on 24 June 2021.

c) The objections to clause 10.2 were raised on 24 June 2021. At the bargaining meeting on 4 August 2021, the Respondent then advised the Applicant that it would propose an alternative clause 10.2, which would limit the clause to permitted matters.

d) The objections to clauses 16.1, 16.4, and 16.5 were raised during the course of the meeting on 24 June 2021.

e) Clause 31 was discussed once again on 14 July and 5 August 2021.” 6

TWU claims objected to by FedEx as non-permitted

[11] Schedule One to this Decision sets out the claims contained within the TWU Log that are asserted by FedEx as non-permitted matters for the purposes of these proceedings (some of these claims were also asserted by FedEx (to the TWU) as non-permitted matters during bargaining) 7 (Impugned Claims). I note that the Impugned Claims are numbered and titled respectively: 3(f) and (h) (Objects), 10.2 (Cooperative Engagement), 13(h) (Job Security for Transport Workers), 16.1 (Job security through safe, fair rates & conditions in FedEx Supply Chain & Industry), 16.4 (A safe and sustainable Transport Industry), 16.5 (International Labour Organisation), 19.2 (Owner Drivers), and 31 (Conversion of “VTA Drivers” (Victoria).8

[12] Ms Inturrisi’s evidence as to Mr O’Brien’s responses to FedEx’s assertions as to non-permitted matters raised during bargaining, is as follows:

“12. In the most recent negotiation meeting on 5 August 2021, Mr O’Brien responded to the Company’s unwillingness to negotiate with respect to matters concerning “outside hire pay rates and utilisation rates in the business” (to include non-permitted matters) by saying something along the lines of “this is a die in the ditch issue for us and these measures are being pursued so there is a disincentive to use outside hire. VTA is an example of why we need you to pay site rates”.

…

17. In spite of the Company’s objections to the clauses set out above, at no point during the course of the negotiations did the Applicant step away from the relevant clauses or say that they were no longer seeking the inclusion of the relevant clauses in the Log of Claims.

…

19. When raising the Company’s objections during the various meetings, there were varied degrees of discussion concerning the matters that the Company considered ought not to form part of the negotiations. In response to the relevant concerns, the Applicant (usually through Mr O'Brien) responded in one or more of the following ways:

a) Mr O'Brien did not comment on certain of the objections.

b) There was an occasion during one of the negotiation meetings when, in response to the objections, Mr O'Brien asked the Company to make available its legal advice regarding what it considered to be non-permitted matters. In response to this request, I would simply repeat the explanation provided in the Company's Log of Claims Response. I also recall that, on at least one occasion, I asked Mr O'Brien to provide the Company with the Applicant's advice to the effect that the matters objected to by the Company were permitted matters within the contemplation of the Fair Work Act.

c) There were also occasions when Mr O'Brien indicated that the Applicant did not agree with the position adopted by the Company (for example, in relation to the Applicant's proposed clause 16.5). During these discussions Mr O'Brien also referenced the fact that the Applicant had apparently agreed similar clauses with what Mr O'Brien referred to as “the Company's competitors”. In response to that contention, I told Mr O'Brien that the negotiations pertained to the Company and not to its competitors and the fact that something may have been agreed to by a competitor did not mean it was a permitted matter.” 9

TWU withdrawal of Impugned Claims

[13] On 13 August 2021, the TWU withdrew the following claims, through Mr O’Brien:

“18. In any event and to avoid unnecessary disputation, the TWU no longer presses and formally abandons the following clauses:

(i) 3(f);

(ii) 3(h);

(iii) 10.2;

(iv) 16.4 (save for clause 16.45 in relation to BlueCard);

(v) 16.5.” 10

[14] On 16 August 2021, around 40 minutes prior to the commencement of the Hearing, the TWU withdrew the following claims, through Mr O’Brien:

“3. In order to avoid unnecessary delay and disputation and in addition to the claims set out in my 13 August 2021 statement which are no longer pressed, the TWU now also no longer presses the following claims:

(i) clause 16.1(b);

(ii) clause 16.1(l);

(iii) clause 16.1(m);

(iv) clause 16.4.5.” 11

[15] Further concessions and clarifications by the TWU at the commencement of the Hearing (on 16 August 2021) as to the nature and scope of the remaining Impugned Claims (found at clauses 16.1, 19.2 and 31 of the TWU Log), resulted in FedEx withdrawing all of its objections to the Impugned Claims to the extent that they constitute non-permitted matters. 12 The contest between the parties before the Commission, in respect of the TWU’s PABO application, was thus acknowledged by MrWade as ultimately only concerning whether the TWU “had been”, as opposed to “is”, genuinely trying to reach agreement.13

Case Law

[16] The parties’ submissions focused upon the findings and reasoning by the Full Bench of the Commission in Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union 14 (Esso). Relevant extracts from that Decision are:

“As to the question of whether a bargaining representative has been and is genuinely trying to reach an agreement, Flick J said:

‘It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant … is … genuinely trying to reach an agreement with the employer” unless:

•  an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and

•  the employer has foreshadowed — even in the most general of terms — its attitude as to the proposed agreement.

More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:

•  bargaining to have commenced within the meaning of and for the purposes of s 173, found within Pt 2-4 of the Fair Work Act.

So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement…” It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” — on one approach to construction — perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement — let alone genuinely tried to reach agreement.’

…

The reference to the Commission being ‘satisfied’ means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant. The expression ‘has been, and is’, imports temporal considerations. The Commission’s attention is thereby directed to the applicant’s prior conduct at the time the application for a protected action ballot order is determined. Given the context the reference to ‘an agreement’ is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the FW Act. The clear inference from s.172(1) is that the substantive terms of enterprise agreements should be confined to permitted matters, though the Commission is not required to scrutinise each agreement to ensure that all its terms are about permitted matters and the statutory requirements for the approval of an agreement (ss 186-187) make no express reference to the concept of permitted matters (also see s.253).

…

In our view the adoption of a decision rule or principle of the type proposed in Australia Post No.1 and Airport Fuel Services would be an inappropriate fetter on the exercise of what the legislature clearly intended would be a discretionary decision. As Bowen LJ observed in Gardner v Jay:

“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Act or the Rules do not fetter the discretion of the Judge why should the court so do.”

There is no legislative warrant for the adoption of a decision rule such that if an applicant is, or has been, pursuing a substantive claim which is not about a permitted matter it is not genuinely trying to reach an agreement within the meaning of s.443(1)(b). The fact that an applicant is, or has been, pursuing a claim about a non-permitted matter is relevant to whether the test posited by s.443(1)(b) has been met, but it is not determinative of the issue. A range of factual considerations may potentially be relevant in that context, including but not limited to the subject matter of the claim, the timing of the advancement of the claim, the basis upon which the claim is advanced, the significance of the claim in the course of the negotiations, the claimant’s belief as to whether the claim is about a non-permitted matter or not, where there is legal clarity about the permitted status of the claim, whether the other party has placed in contest whether the claim is about a permitted matter, and whether such a claim has been withdrawn and, if so, when and in what circumstances. The diversity of the factual circumstances and nuances which will be found in different cases means that it is not possible to say that any particular factor or consideration will always be determinative of the result.

…

The adoption of a construction of s.443(1)(b) which would require the Commission to scrutinise each of the claims advanced by the applicant to determine whether they are about permitted matters is inconsistent with the object of Division 8 of Part 3-3 and the scheme of the FW Act.

Section 409 is also a relevant contextual consideration. It provides, among other things, that industrial action is ‘protected’ if, at the time of the action, the person ‘reasonably believes’ they are pursuing claims about permitted matters (s.409(1)(a)). A decision rule of the type arguably proposed in Australia Post No.1 and Airport Fuel Services would give rise to the incongruous result that the test posited for the grant of a protected action ballot order (a precondition to the taking of protected industrial action) would be more stringent than the conditions attached to the taking of protected industrial action. It is unlikely that such a result would have been intended by the legislature.

…

For the reasons given the question of whether the applicant for a protected action ballot ‘has been, and is, genuinely trying to reach an agreement’ with the relevant employer is to be determined having regard to all of the relevant facts and circumstances of the particular case. …” 15

Evidence at the Hearing on 16 August 2021

[17] At the Hearing, Mr O’Brien gave the following evidence (under cross-examination):

(a) The next bargaining meeting between the TWU bargaining representatives and FedEx has been set down for 24 and 25 August 2021.

(b) Whilst FedEx advised the TWU at bargaining meetings on and after 27 May 2021 that it held significant concerns as to some of the Impugned Claims being non-permitted matters, such concerns were not stated specifically.

(c) The TWU and FedEx reached agreement at the 27 May 2021 meeting on two items, Clause 8 of the TWU Log titled “Permitted Matters” (set out at paragraph [8(a)] of this Decision), and a nominal expiry date.

(d) The TWU obtained legal advice as to the matters contained in its Log of Claims prior to providing same to FedEx.

(e) In Mr O’Brien’s experience, it is part of normal enterprise agreement negotiations for parties to engage in discussions as to whether certain claims are or are not permitted matters.

(f) FedEx agreed to discuss arrangements for VTA drivers (clause 31 of the TWU Log) separately to, but concurrently with, the negotiations for a proposed enterprise agreement. Despite the TWU agreeing to hold such separate discussions, it still considered its claims in respect of VTA drivers to be permitted matters.

(g) The final (take it or leave it) offer put by FedEx to the TWU, twenty minutes prior to the conclusion of the last bargaining meeting on 5 August 2021, represents only 50 percent of the TWU’s wages and superannuation claims, or a “three-eighths offer”.

(h) Mr O’Brien’s assessment of where negotiations are up to right now is that the focus is mainly upon wages and superannuation.

(i) In relation to the claim in the TWU Log under clause 16.5 “International Labour Organisation”, that seeks that FedEx agree to a term in a proposed enterprise agreement reflecting FedEx’s support for international supply chain and labour standards by reference to “ILO Guidelines on the Promotion of Decent Work and Road Safety in Transport” (ILO Guideline), Mr O’Brien:

•  had not read the ILO Guideline in “many, many months”;

•  is not aware how many pages the ILO Guidelines contain (with or without annexures);

•  has, in the past, seen parts of the ILO Guideline document; and

•  “couldn’t recall off the top of [his] head” what standards or conventions were being referred to in respect of clause 16.5 or the ILO Guidelines.

(j) A few of the matters that the TWU has abandoned since filing its PABO application and/or shortly prior to the Hearing of same, are “significant” claims.

[18] At the Hearing, Ms Inturrisi agreed (under cross-examination) that during bargaining FedEx raised issues as to various claims in the TWU Log being non-permitted matters both orally and in writing, but only at a “high level” (by reference to s.172 of the Act, and/or by labelling non-permitted claims as “industry claims”):

Mr Boncardo: “So is the answer to my question, ‘Yes’, that apart from asserting that some clauses are about industry claims and therefore - and then asserting that clauses are not about permitted matters, FedEx has not said anything to the TWU to explain its position, in respect to the clauses referred to at paragraph 16 of your statement?”

Ms Inturrisi: “I would agree with that.” 16

Submissions of the parties

[19] Mr Wade casts the Impugned Claims as forms of collective virtue signalling, and submits that:

(a) the facts in Esso, are not the facts in this case;

(b) the Impugned Claims are reflective of attempts to engage in “social engineering on a grand scale” that seek to “reform of the [transport] industry at large” via the imposition of “broad ranging and far reaching” obligations upon FedEx, including as to “ill-defined international supply chains and International Labour Organisation standards”;

(c) Mr O’Brien, in his evidence, had no idea what obligations the ILO Guidelines sought to impose, and had not even recently read them. In this regard, Mr O’Brien could not name the “so-called matters pertaining to the international supply chain, being unspoken of, unidentified, unspecific conventions, and who knows what”. Mr Wade asked rhetorically: “How can a union bargaining representative be genuinely trying to reach agreement when they cannot even articulate, even in the broadest possible terms, what a particular claim seeks of an employer?”;

(d) some of the Impugned Claims are very detailed in terms of the requirements they impose, whilst others have been drafted so vaguely that one is unable to discern what the TWU is actually seeking. The detailed claims are clearly non-permitted matters, and the vaguely drafted claims provided no indication of what agreeing to same would actually mean (especially under the “pain of breach of an enterprise agreement”);

(e) the Impugned Claims are clearly non-permitted matters having regard to the terms of s.172(1) of the Act. It was unnecessary for FedEx to seek further particulars from the TWU as to the meaning and intent of the claims being made pursuant to the impugned clauses given that, on their face, it would be almost impossible for them to be characterised as permitted matters;

(f) the late withdrawal of the Impugned Claims by the TWU, after it was notified of FedEx’s opposition to the PABO, should be found to be:

(i) an admission or acknowledgement by the TWU that the Impugned Claims are about non-permitted matters, and that the TWU has been aware of this since the day that the Impugned Claims were first advanced by it in bargaining negotiations with FedEx; and/or

(ii) a strategy by the TWU to attempt to avoid the consequences of pursuing non-permitted matters during bargaining, i.e. to avoid a finding that the TWU has not been genuinely trying to reach agreement. This is particularly highlighted by the fact that some of the Impugned Claims were stated by Mr O’Brien during bargaining to be “die in a ditch” claims, that have then been thrown into the bin (without explanation) prior to the PABO Hearing;

(g) the TWU should not be able to use the late withdrawal of the Impugned Claims as a shield against a finding as to an absence of genuine agreement, especially when Mr O’Brien has conceded that the Impugned Claims, now withdrawn, were “significant” claims, and are claims that are not reflected in the comparative enterprise agreements relied upon by Mr O’Brien in his witness statement;

(h) the reality is that given the pursuit by the TWU of the Impugned Claims in bargaining to date, such bargaining has proceeded upon a false dynamic. It should be concluded that the strategy of the TWU towards bargaining to date has been to advance non-permitted and/or spurious claims, some of which contain very broad and uncertain terms, that cannot be included in an enterprise agreement under the Act. Such non-permitted claims could never possibly be agreed to by FedEx, with the resulting absence of a concluded enterprise agreement giving rise to the TWU making a PABO application, and the taking of “protected” industrial action by its members. The approach should be seen as a way to simply remove obstacles or hurdles to the granting of a PABO, and should not be countenanced as an approach that ought give rise to satisfaction as to the TWU having been genuinely trying to reach agreement; and

(i) in all the facts and circumstances, the Commission cannot be satisfied that the TWU has been genuinely trying to reach agreement with FedEx.

[20] Mr Boncardo made submissions which challenged FedEx’s opposition to the PABO, particularly in respect to the assertion that the purported non-permitted matters should lead the Commission to find that the TWU had not been, and was not, genuinely trying to reach agreement with FedEx. In this regard, Mr Boncardo submitted:

(a) The TWU has not abandoned its “die in the ditch” claims concerning outside hire and utilisation rates. These claims remain under clause 16.1 of the TWU Log, which FedEx no longer opposes.

(b) Mr O’Brien’s evidence that he believed and continues to believe that the Impugned Claims are about permitted matters has not been seriously challenged. Further, whether Mr O’Brien was right or wrong about the Impugned Claims being permitted matters is neither here nor there, in circumstances where his belief or purpose was to reach an agreement with FedEx in relation to an enterprise agreement capable of approval under the Act. Further, clause 8 of the TWU Log makes plain that the TWU has only ever been seeking to make an agreement that includes permitted matters;

(c) Mr O’Brien’s belief as to the TWU genuinely trying to reach agreement with FedEx has not been seriously challenged;

(d) The position of FedEx has always been “we don’t agree to this matter, we are not going to countenance it”, and that is where bargaining over the Impugned Claims has been left. Bargaining between the parties has moved on from being bogged down by the Impugned Claims, and has focused upon matters to which there is a prospect of agreement.

[21] In reply, Mr Wade submitted:

(a) the concessions made by the TWU, as to the meaning or intent of the Impugned Claims at the commencement of the Hearing, should have been made during bargaining. The fact that FedEx has withdrawn its objections to some of the claims being non-permitted matters does not alter the fact that the advancement of these claims during bargaining highlights that the TWU has not been genuinely trying to reach agreement; and

(b) Mr O’Brien’s evidence that the TWU has withdrawn a large number of significant claims so as to avoid disputation and unnecessary delay is humbug and should not be accepted. Rather, the Commission should find that the real reason the Impugned Claims have been withdrawn is because the TWU knew all along that they concerned non-permitted matters, and that when seeking a PABO, they needed to drop the claims so as to have their PABO approved.

Consideration

[22] Having regard to the fact that the TWU withdrew many of the Impugned Claims shortly prior to the Hearing, I am satisfied that the TWU “is” genuinely trying to reach agreement with FedEx. The concession by Mr Wade at the Hearing that the only issue before the Commission is whether the TWU “has been” genuinely trying to reach agreement with FedEx equally supports my conclusion in this regard.

[23] In relation to whether the TWU, as a bargaining representative on behalf of its relevant members, “has been” genuinely trying to reach agreement with FedEx, I make the following findings:

(a) Many of the Impugned Claims pursued by the TWU during bargaining clearly, on their face, concern non-permitted matters. Other claims pursued by the TWU during bargaining, such as asking FedEx to make a commitment under the enterprise agreement to support ILO Guidelines, appear to be pointless and unenforceable, such that they do not even fall within the gamut of enterprise bargaining ambit.

(b) FedEx raised its concerns as to various Impugned Claims being non-permitted matters during bargaining, however, such concerns were only expressed in the very general sense.

(c) Whilst there may be some legitimate doubt that Mr O’Brien could properly hold the belief that all of the Impugned Claims concerned permitted matters, 17 I accept Mr O’Brien’s evidence that there was never any unbridled insistence that any of the Impugned Clauses must form part of a proposed enterprise agreement (at least as currently drafted in the TWU Log). This is consistent with the agreement between the parties during bargaining in respect of Clause 8 of the TWU Claims (see paragraph [8(a)] of this Decision). I equally accept that there was some fluidity to the Impugned Claims, having regard to the fact that the TWU Log did not reflect the actual terms of an enterprise agreement. In reaching these conclusions, I accept Mr O’Brien’s evidence as to his belief that the TWU has been genuinely trying to reach agreement with FedEx in respect of a proposed enterprise agreement capable of approval under the Act.

(d) The TWU has attended various bargaining meetings over a two-month period. At those meetings, the TWU has put forward a large number of claims, has sought responses from FedEx in relation to such claims, has responded to FedEx’s claims, and has agreed to some of FedEx’s claims.

(e) At the time the PABO application was filed:

(i) only two items in the whole of the TWU Log, after bargaining meetings held on six different days over a period of more than two months (between 27 May and 5 August 2021), had been agreed to by FedEx (see paragraph [17(c)] of this Decision); and

(ii) FedEx had put forward a “final offer” that did not satisfy many of the TWU claims, including as to salary and superannuation increases.

[24] It is not in contention that the conduct of a bargaining representative in pursuing non-permitted matters during bargaining is but one of the matters that are relevant to reaching a state of satisfaction as to whether an applicant has been genuinely trying to reach agreement. FedEx’s evidence and arguments in this case focus upon, or otherwise derive from, the pursuit by the TWU of non-permitted matters during bargaining. However, there is no evidence that the pursuit of the Impugned Claims has stalled or otherwise delayed the progression of bargaining to date, or that there has been agreement as to substantive TWU claims (concerning permitted matters contained in the TWU Log) that have been resolved or otherwise agreed to. Given that FedEx has put forward its latest position in bargaining negotiations as a “final offer”, I do not accept that refusing or otherwise delaying the TWU’s PABO application can be justified on the basis that I am unable to be satisfied that the TWU has been genuinely trying to reach agreement. Rather, having regard to all of the facts and circumstances of this case, I consider that I can be satisfied that the TWU has been genuinely trying to reach agreement with FedEx.

[25] Finally, I note that FedEx maintained its objections to Questions 11 and 14 of the ballot Order, as set out in its email to the Commission of 9 August 2021, on the basis that such questions do not, or will not, constitute valid forms of “industrial action” within the meaning of the Act. In rejecting these objections, I concur with the submissions of the TWU as set out at paragraphs [35] to [46] of the TWU Outline of Submissions. In my view, there is no question that the forms of action proposed (i.e. the wearing of TWU branded badges, clothing and hats, and the use of social media platforms to publish to the community the views of employees in relation to industrial action and the TWU’s enterprise bargaining campaign at FedEx), are forms “industrial action” within the meaning of the Act. Further, there are no issues of ambiguity, or an absence of sufficient clarity, in the ballot questions proposed such that a relevant employee being balloted would be unable to determine whether they wish to approve the industrial action (as identified) to be taken.

Conclusion

[26] For the reasons set out in this Decision, having regard to the evidence, having considered the submissions of the parties, and by reference to the extracts from Esso (as set out in this Decision), I am satisfied that:

(a) the TWU’s PABO application has been made in accordance with s.437 of the Act;

(b) the TWU (on behalf of relevant employees to be balloted) has been, and is, genuinely trying to reach an agreement with FedEx; and

(c) the requirements of ss.438 and 440 of the Act (in respect of the TWU’s application) have been met.

[27] In view of the foregoing conclusions, pursuant to s.443(1) of the Act, the Commission must make a Protected Action Ballot Order. The Order shall be made in the terms sought by the TWU (as amended during the Hearing). 18 Accordingly, relevant Directions, and an Order [PR732908], shall be issued separately.

DEPUTY PRESIDENT

Appearances:

Mr P Boncardo, of Counsel, instructed by Ms L Biviano, TWU Legal Officer, appearedfor the Transport Workers' Union of Australia.

Mr R Wade and Ms M Taylor, of Ashurst lawyers, appeared for FedEx, instructed by Mr M Brennan, FedEx Managing Director Legal, and Ms L Inturrisi, FedEx Regional Manager People Operations

Hearing details:

Sydney (telephone Hearing)

16 August 2021

Printed by authority of the Commonwealth Government Printer

<PR732907>

Schedule 1

3. Objects of the Agreement

The objects of the Agreement will include:

…

f. enhancing job security and the sustainability of Fedex operations by promoting safe and fair conditions for all workers in the industry and by taking positive Company and industry steps to prevent the exploitation of vulnerable workers including visa holders;

…

h. ensuring that Transport Workers are protected from the importation of substandard labour practices by providing the framework for development and implementation of agreed international labour standards and recognition of relevant ILO standards in transport.

10.2 Cooperative Engagement

a. Fedex is committed to being an industry leader and employer of choice, and to working with the Union to achieve appropriate rates of pay and conditions of employment throughout the industry.

b. Fedex recognises the need for regulatory reform in the transport industry to ensure that safe and sustainable enforceable rates of pay, supply chain accountability and a mechanism to resolve all supply chain disputes applies throughout the industry. The parties will constructively have discussion with lawmakers and the industry in order to implement these changes.

c. The Parties commit to working together to pursue the following improvements in the industry:

i.Enforceable safe and fair rates and conditions for all workers (including “New Economy” workers);

ii. Planning requirements for the safe, fair and legal performance of work before the driver gets behind the wheel;

iii. 30 day maximum payment terms for Fleet Operators and Owner-Drivers;

iv. The implementation of appropriate cost recovery criteria to ensure at least cost recovery and sustainable operations for Fleet Operators;

v. Enforceable supply chain accountability;

vi. Readily accessible and binding dispute provisions including powers to make binding determinations in respect of supply chain participants;

vii. Effective enforcement of both proactive obligations and breaches; and

viii. Preventing the exploitation of non-resident visa workers (including workers holding student visas).

d. Fedex and the Union will collaborate on means to achieve a harmonisation of fatigue management laws and regulations applying across Australia

e. Fedex will engage constructively with the Union on changes that might be made to the Award or the Award system, to provide for fairer, safer rates and conditions for all workers in the industry and appropriate supply chain accountability.

13. Job Security for Transport Workers

The parties recognise that job security is an important issue for Transport Workers. For its part Fedex commits:

…

h. To provide cost recovery to its Owner-Drivers. Fedex will apply the labour rate referred to in (g) over and above the standing and running costs of the relevant Owner-Driver’s vehicle. For completeness FWC has all powers available to it under the Disputes Procedure in order to resolve a dispute under (g) and (h).

16.1 Job Security and the Use of Outside Hire in the Fedex supply chain

Fedex Supply Chain: The Agreement will promote job security of Transport Workers by diminishing the incentive for Fedex to outsource work by requiring the following enhancements in respect of all companies in the Fedex supply chain:

a. Labour hire and third party workers will receive the same rates and conditions as employees;

b. 30-day maximum payment terms from date worked for all companies in the Fedex supply chain;

c. requiring Fleet Operators to pay site rates and Modern Award conditions to their employees and owner-drivers engaged by them;

d. Owner-drivers are not to be engaged by Fleet Operators unless it is not otherwise practicable to engage employee drivers, eg in a remote area. Where Owner-Drivers are engaged by a Fleet Operator permission must be sought from Fedex by the Fleet Operator and the Union must be informed as to which Fleet Operators are engaging Owner-Drivers and why it is not practicable to engaged employees to perform this work;

e. Fedex will provide a list of all Fleet Operators engaged by it at each site by the end of March and the end of September each year. This list will include the name of the Fleet Operator, how many workers they employ at each site, whether any workers are non-employees, whether they have previously been identified as being in breach of any obligations arising under this Agreement or any other instrument and whether they have executed a Freight Cartage Agreement;

f. Upon request by the Union Fedex will audit specific Fleet Operators to ensure that they are meeting all of their obligations, including payment of site rates and any other applicable terms under this Agreement or Freight cartage Agreement. This information will be provided to the union within 30 days of the request being made. This information will include the production of payslips by Fedex (based on the amount that they pay each Fleet Operator for their services), run sheets provided by the Fleet Operator and any other documentation and information necessary to complete the audit.

g. When a new Fleet Operator is being engaged at a site during the operation of this Agreement Fedex will inform the Union.

h. All Fleet Operators will sign a Freight Cartage Agreement within three months of the approval of this Agreement.

i. All Transport Workers engaged by Outside hire will receive union inductions and the relevant induction clauses under this Agreement apply as if they were a reference to Outside Hire.

j. All Transport Workers engaged by Outside hire will undertake the Blue Card WHS Induction and Skills Passport

k. application by Fedex of appropriate cost recovery criteria so that Fleet Operators achieve at least cost recovery;

l. preventing the exploitation of non-resident visa workers (including workers holding student visas) by requiring that all companies in the Fedex supply chain:

i. prioritise the training and utilisation of local workers; and

ii. ensure that any workers holding non-resident visas:

•  receive Fedex-TWU Agreement wages, conditions and safety standards;

•  receive any training required to ensure appropriate skill levels;

•  hold a BlueCard skills passport;

•  hold all necessary licences; and

•  have access to industrial rights representation through TWU inductions.

m. that all supply chain workers have access to a super fund that is not-for-profit, is dedicated and practised at monitoring contribution compliance in the road transport sector, and provides appropriately sector-tailored life insurance and income protection options by requiring fleet operators to offer TWUSUPER as the default fund.

16.4 A Safe and Sustainable Transport Industry

Industry Safety & Sustainability: The Agreement will promote job security, safety and the sustainability of operations by committing to work with the TWU for safer, fairer rates and conditions throughout transport industry supply chains by proactively pursuing and publicly supporting:

16.4.1 Safe Rates

a. Implementation of “safe rates” legislation aimed at delivering the following:

b. The establishment of a specialist Tribunal dedicated to ensuring the creation and maintenance of a safe, sustainable and fair transport industry for all participants;

c. Enforceable safe and fair rates and conditions for all workers in all parts of the transport industry (including “New Economy” workers);

d. Planning requirements for the safe, fair and legal performance of work before the driver gets behind the wheel;

e. Safe & Fair Competition for Transport Operators and owner drivers including maximum 30-day payment terms, fairer tendering processes and the implementation of appropriate cost recovery criteria to ensure at least cost recovery and sustainable operations;

f. Enforceable supply chain accountability (including proactive obligations on economic employers to ensure safe and fair rates and conditions are actually provided to all workers and transport operators and to promote job security and sustainability by preventing supply chain exploitation of workers holding non- resident visas);

g. Readily accessible and binding dispute provisions including powers to make binding determinations including in respect of all supply chain participants;

h. Effective enforcement of both proactive obligations and breaches.

16.4.2 Award Reform

Support for any Award applications made by the TWU (and any legislative reform necessary to make such applications) designed to create fairer, safer rates and conditions for all workers in the industry, including provision of a more level playing field for Transport Operators including the principles of ‘same job, same pay’ and an end to the ‘race to the bottom’ in transport, and appropriate supply chain accountability to ensure fairness and sustainability for transport operators.

16.4.4 Tripartite Transport Industry Sustainability Fund

Development and implementation of a Transport Industry Sustainability Fund into which all transport operators and supply chain participants will contribute funds, to be matched dollar for dollar by State and Federal Governments and to be administered by a tripartite Fund Taskforce made up of Employer, Government and Union representatives. The funds will be spent on transport industry sustainability initiatives including but not limited to auditing, training, skills development/transitioning and enforcement.

16.4.5 Bluecard WHS Induction and Skills Passport (Bluecard):

Promotion of Blue Card throughout the transport industry as an entry level WHS training program. Importantly, the card operates as a skills passport as it allows for other competencies and qualifications to be recorded on the card as well.

16.4.6 The Transport Education Audit Compliance Health Organisation (TEACHO):

TEACHO is a not for profit company established by the TWU with employers, academics and industry experts. Its objectives are to improve training and compliance, industrial rights, health (including mental health), well-being and safety, and research for the benefit of transport workers and the sustainability of the industry. TEAHCO administers Bluecard and has recently commissioned important industry research regarding the so-called ‘gig’ economy and the regulation that should be introduced in order to ensure the safety, fairness and job security of all workers in the transport industry. The Agreement will contain a term setting out the purposes and commitment by Fedex to contribute to TEACHO and, if invited, acceptance of an invitation to sit on the TEACHO Board.

16.5 International Labour Organisation

Support for international supply chain and labour standards (for example, support for international application of standards consistent with ILO Guidelines on the Promotion of Decent Work and Road Safety in Transport) to ensure that substandard practices and systems do not infiltrate or undermine standards in Australia.

19.2 Owner Drivers

a. The above 4% increases to wages and allowances (with CPI safety net) will apply to owner-driver labour rates and will be payable in the same timeframes.

b. Unless a replacement Agreement has been reached by 30 June 2022, a CPI wage increase will apply to the wages and allowances of owner-driver labour rates from that day.

c. For the avoidance of doubt, Fedex must apply the increased labour rates over and above the provision by Fedex of cost recovery rates for standing and running costs of each owner driver’s vehicle. Any dispute as to what constitutes cost recovery for a particular class of owner driver work will be dealt with in accordance with the dispute resolution procedure.

31. Conversion of “VTA Drivers” (Victoria)

Fedex will convert “VTA Drivers” with in excess of 12 months service to Fedex owner drivers.

 1   Exhibit TWU1, at [10]-[13]; Exhibit R1, at [10]-[18].

 2   Exhibit TWU1, at [8]-[16]; Exhibit TWU2, at [19]-[23], TWU3, at [2]

 3   The non-permitted matters could not be included in the enterprise agreement because they did not pertain to the relationship between the employers and its employees, and/or the employers and the TWU.

 4   Exhibit TWU2, at [11] (uncontested).

 5   Exhibit R1, at [14], Annexure LI-2.

 6 Exhibit R1, at [18].

 7   Ibid.

 8   Taken from TWU Log, found at Exhibit R1, Annexure LI-2.

 9   Exhibit R1, at [12], [17] and [19].

 10 Exhibit TWU2, at [18].

 11 Exhibit TWU3, at [3].

 12   Transcript, PN6-PN33.

 13   Transcript, PN34, PN60-PN61.

 14 (2015) 247 IR 5.

 15 Ibid, at [34]-[35], [47]-[48], [54], [58]-[59], [64]-[65], and [69].

 16   Transcript, PN277 (by reference to the claims set out in the TWU Log identified by Ms Inturrisi in her witness statement (see Exhibit R1, at [16]).

 17   That is, as an experienced TWU official, and the nominated lead TWU bargaining representative during bargaining discussions.

 18   Transcript, PN43-PN58, PN378.