Applications by Construction Forestry and Maritime Employees Union
[2024] FWC 2049
•23 AUGUST 2024
| [2024] FWC 2049 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Applications by Construction Forestry and Maritime Employees Union
(B2024/948 and B2024/949)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 23 AUGUST 2024 |
Proposed protected action ballots of employees of Qube Ports Pty Ltd (Port of Brisbane), B2024/948, and Qube Ports Pty Ltd (Port of Port Kembla), B2024/949.
On 25 July 2024, the Construction, Forestry, Mining and Energy Union (CFMEU), through its Maritime Union of Australia Division, filed two separate applications for the Commission to make protected action ballot orders, pursuant to s.437 of the Fair Work Act 2009 (Act), in respect of relevant members of the CFMEU who are employees of Qube Ports Pty Ltd (Qube) in the maritime ports of Brisbane and Port Kembla. The two applications were allocated to my Chambers on 26 July 2024, and have been joined together for hearing, with evidence in one application being evidence in the other.
The first application (PABO Brisbane Application), being matter number B2024/948, concerns the proposed Qube Ports Pty Ltd Port of Brisbane Enterprise Agreement 2024 (Brisbane EA), and the second application (PABO PK Application), being matter number B2024/949, concerns the proposed Qube Ports Pty Ltd Port of Port Kembla Enterprise Agreement 2024 (PK EA).
On 26 July 2024, the Fair Work Commission (Commission) received identical emails from Allens lawyers, acting for Qube, in respect of the PABO Brisbane Application, and the PABO PK Applicant, which read:
“Dear …
We refer to the above matter and your email below.
We act for the Respondent in this Application.
We are instructed to advise that the Respondent objects to the application on the basis that:
7(a) the Applicant has not been genuinely trying to reach an agreement with the Respondent as required by section 443(1)(b) of the Fair Work Act 2009 (Cth) (the Act);
(b) the Applicant is not genuinely trying to reach an agreement with the Respondent as required by section 443(1)(b) of the Act;
(c) the Applicant's bargaining approach to date is inconsistent with its assertion that it has genuinely tried or is genuinely trying to reach an agreement for the proposed Qube Ports Pty Ltd Port of [Port Kembla or] Brisbane Enterprise Agreement 2024; and
(d) the material filed by the Applicant is insufficient to establish the requisite jurisdictional facts relating to genuinely tried and genuinely trying.
Given the nature of these objections, the Respondent submits that it will be necessary for it to file and serve evidence and submissions in support of its objections. Additionally, it anticipates that the Applicant may want to file and serve additional material in support of its Application. Further, our client will seek to cross-examine Mr Smith from the Applicant and in doing so, would be assisted by the transcript of Mr Smith’s evidence given in earlier proceedings (B2024/887), which has been ordered but not yet received. In these circumstances, to allow for due process, the Respondent submits that it is not practicable for the Commission to determine this Application within the timeframe identified in section 441 of the Act. The Respondent requests that the Commission take this submission into account when determining timetabling for this matter.
The Applicant is copied into this email by way of service.
Yours sincerely”
On the afternoon of 26 July 2024, the CFMEU proposed a timetable for evidence and submissions to be filed, with a hearing to be conducted on 1 August 2024. I adopted that timetable notwithstanding that the applications would not be resolved within two workings days (s.441 of the Act). Indeed, it was (and remains) apparent that resolution of the applications would not be practicable within two workings days given the nature and scope of the objections made by Qube necessitating resolution.
Having regard to the submissions of Qube (filed 30 July 2024) requesting permission to be legally represented in both applications, I granted such permission, pursuant to s.596 of the Act, via email, on 30 July 2024. At the hearing on 1 August 2024:
(a) Mr Luke Edmonds, Legal Officer, and Ms Ella Rowe, Legal Officer, appeared for the CFMEU; and
(b) Mr Matthew Follett, of Senior Counsel, and Mr Andrew Crocker, of counsel, instructed by Ms Sonia Millen, Partner, Allens lawyers, appeared with permission for Qube.
Statutory provisions
The determination of this matter is relevantly governed by s.443 of the Act, which reads:
“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;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(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 or 120 hours (whichever is applicable), 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.”
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.
Valid s.437 applications have been made
It is not contested that:
a) the CFMEU is a bargaining representative for relevant employees who will be covered by the proposed enterprise agreements;
b) there has been a notification time for the proposed enterprise agreements that preceded the applications being filed;
c) the applications relevantly specify the group of employees to be balloted;
d) the questions to be put to employees (who are to be balloted) identify the nature of the industrial action that is proposed to be taken; and
e) the applications specify the balloting agent to conduct the ballots.
On the evidence before me I am equally satisfied as to the matters set out in the foregoing paragraph. I therefore find that the applications have been validly made under s.437 of the Act. The disputed issue before me is thus limited to whether or not the Commission can be satisfied that the CFMEU has been, and is, genuinely trying to reach an agreement with Qube in respect of the relevant employees who are to be balloted in each of the applications (s.443(1)(b) of the Act).
Case Law
The CFMEU (as the applicant for the PABO Brisbane and PK Applications) carries the evidential onus of establishing that it has been and is genuinely trying to reach an agreement with Qube.
It is well settled that the question of whether an applicant for a protected action ballot “has been, and is, genuinely trying to reach an agreement” with a relevant employer is not to be guided by a decision rule or principle. Rather, the question is to be determined having regard to all of the relevant facts and circumstances of the particular case, with no specific factor/s determinative.[1] The requirement under s.437(1)(b) of the Act for the Commission to be satisfied that “each applicant has been, and is, genuinely trying to reach agreement” requires a temporal consideration in respect of an applicant's conduct as at the date of application, and the time of the Commission’s decision.
The parties’ submissions focused upon the reasoning by the Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia[2] (Total Marine), specifically at paragraphs [31] to [32], which read:
“31. In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s.443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied.
32. We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
In relation to the foregoing paragraphs of Total Marine, the Full Bench in Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union[3] (Esso), stated (at [35]):
“For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).” (citations omitted)
Qube also pointed to an analogy with these proceedings and the findings of the Full Bench in Total Marine, at paragraphs [35] to [36] of that decision, which read:
“35. Commissioner Thatcher then considered all circumstances. He said that nothing turns on the fact that the parties are focussing on enterprise specific claims and had agreed to “park” certain industry matters. He concluded that the MUA strategy of waiting to determine what general wage increases it will press until the union had achieved a “landing” on its construction claim is not a factor that goes against a finding that the MUA has not been genuinely trying to reach an agreement.
36. In this conclusion we believe that the Commissioner fell into error. It is clear on the evidence that the negotiations involved limited face to face meetings and limited articulation of many of the claims. Certain matters were being dealt with in concurrent industry negotiations. Many items were only set out in a list of headings and were not explained or discussed. The wage claim had not been specified. There is nothing to suggest that in taking the steps that it did, the MUA was other than genuine. Nevertheless, in our view it cannot be said in these circumstances that the MUA had genuinely tried to reach an agreement. The steps it had taken were preparatory to developing an agreement but in our view insufficient to satisfy the test its application needed to meet. The error made by the Commissioner involves both a mistake of fact and an error of principle.”
Uncontested factual findings
Having regard to the evidence[4] and submissions of the parties, I make the following factual findings:
(a) the CFMEU and Qube are currently in simultaneous negotiations for 19 separate agreements to apply at 19 different ports (or workplaces) at which Qube relevantly operates its business, including in Brisbane and Port Kembla;[5]
(b) the 19 ports (or workplaces) at which Qube relevantly operates, including in Brisbane and Port Kembla, all have different operating environments and operational requirements, such that specific differentiations between terms and conditions at the different ports are necessary, or otherwise justified;
(c) each of Qube’s operations at the 19 separate ports have a single enterprise agreement in operation (i.e. applying to Qube and relevant employees at each port, approved in 2020/21 with a common nominal expiry date of 30 June 2024)[6] (2020 EAs);
(d) each of the enterprise agreements (both the 2020 EAs, and the proposed (new) enterprise agreements) have a Part A set of terms and conditions, and a Part B set of terms and conditions. Part A is the same in every enterprise agreement, i.e. it contains identical words. Part B varies from port to port, being terms and conditions that are specific to the relevant individual port;
(e) the CFMEU has approached negotiations with Qube (including in Brisbane and Port Kembla) on the basis that Part A terms and conditions are to be resolved (or concluded) on a national basis (in identical terms across all 19 ports), prior to resolving (or concluding) Part B terms and conditions at each individual port;[7]
(f) Part B terms and conditions modify Part A terms and conditions, such that Part B terms and conditions override Part A terms and conditions to the extent of any inconsistency. Such terms and conditions in Part B may modify a term in Part A, or be a term/s in addition to, or not otherwise contained in, Part A;
(g) the structure of enterprise agreements in the port industry (including amongst Qube’s direct competitors) shows that such enterprise agreements (as approved by the Commission) are in the same format, i.e. with a Part A, and a Part B (the latter overriding the former);
(h) Mr Smith’s uncontested evidence as to the past (or usual) practice of negotiating enterprise agreements in the port industry is as follows:
“The usual past practice when negotiating replacement enterprise agreements at each of the employers mentioned above (that is LINX, DP World and Patrick Stevedores) as well as Qube is to negotiate the Part A terms that will apply at all of the port operations first and then settle the Part B terms once the Part A terms are agreed. That is the practice we seek to replicate in relation to this latest round of bargaining with Qube.”[8]
(i) bargaining was initiated for the Brisbane and PK EAs on 24 March 2024;
(j) on 4 April 2024, the CFMEU provided Qube with a log of claims containing 103 claims in respect of Part A (with no Part B claims);
(k) a first-round bargaining meeting for the PK EA occurred on 30 April 2024;
(l) a first-round bargaining meeting for the Brisbane EA occurred on 3 May 2024;
(m) on 25 May 2024, the CFMEU filed a s.240 application with the Commission. Whilst this s.240 application concerns the proposed enterprise agreement for port of Melbourne, the reality is that, given the CFMEU’s approach to negotiations, the s.240 application concerns potential outcomes for all 19 ports;
(n) on 3 June 2024, a s.240 conference was conducted before the Commission, however, no bargaining or relevant discussions occurred at that conference, which dealt with jurisdictional issues;
(o) on 26 June 2024, a further s.240 conference was conducted before the Commission;[9]
(p) on 31 May 2024, the CFMEU provided Qube with a first revised log of claims containing 95 claims in respect of Part A (with no Part B claims), along with proposed wording for 15 of its Part A claims;
(q) on 21 June 2024 (and on 26 June 2024), the CFMEU provided Qube with a second revised log of claims containing 85 claims in respect of Part A (with no Part B claims), along with proposed wording for 24 of its Part A claims;
(r) on 9 July 2024, the CFMEU provided Qube with a log of claims (for the Brisbane EA) in respect of “key” Part B claims (to stand in addition to current Part A claims). No proposed wording was provided in respect of these Part B claims. I understand the word “key” in respect of the Part B claims to mean there are other (or yet to be made), further Part B claims to come (albeit they may not be “key” claims);[10]
(s) a second-round bargaining meeting for the Brisbane EA occurred on 10 July 2024, at which the CFMEU identified seven “key” Part B claims. No proposed wording was provided in respect of these Part B claims;
(t) a second-round bargaining meeting for the PK EA occurred on 11 July 2024, at which the CFMEU identified 10 “key” Part B claims. No proposed wording was provided in respect of these Part B claims;
(u) as at the date of the hearing of these proceedings (1 August 2024), the CFMEU’s Part A claims were at 84 (60 of which no proposed wording has been provided), and Part B “key” claims were at seven in Brisbane, and 10 in Port Kembla, with no proposed wording provided for any of these key Part B claims, and no indication of what further non-key Part B claims might be; and
(v) during the period April to late July 2024, the parties exchanged various pieces of correspondence concerning bargaining.[11]
Qube’s submissions
Qube contends that the CFMEU has not been genuinely trying to reach agreement with Qube for the following reasons:
(a) the PABO Brisbane and PK Applications are fundamentally premature. The CFMEU may well be trying to progress bargaining, but they are not trying (or genuinely trying) to reach an agreement. There have only been two meetings in respect of a proposed enterprise agreement since bargaining was initiated for the ports at Brisbane and Port Kembla (i.e. four meetings, two for each port).
(b) the evidence leads to the very real inference that the CFMEU’s true motivations are to trigger proceedings for an intractable bargaining declaration, and thereafter obtain a workplace determination;
(c) the log of claims is unauthentic, unrealistic, operationally unfeasible or impossible, fanciful, excessively and unjustifiably costly, and extravagant, such that the CFMEU’s log of claims is in and of itself evidence of the CFMEU not genuinely trying to reach agreement. In this regard, the CFMEU may be genuine in its attempts to obtain the matters set out in its log, but it cannot (on any measure) be genuinely trying to reach agreement about its log of claims; and
(d) the manner in which the CFMEU is engaging in bargaining, by insisting that Part A terms and conditions be resolved across all ports before Part B terms and conditions are resolved, as opposed to engaging in overall or concurrent negotiations in respect of both Part A and Part B claims, means that there is no ability for Qube to agree or say ‘yes’ to the CFMEU’s claims. In other words, even if Qube and relevant employees at Brisbane and Port Kembla agree on Part A claims, that agreement stands for nothing, in that the other 17 ports also need to also agree on Part A claims before agreement can be reached, and Part B claims are resolved.
In making the foregoing contentions, Qube also highlights that:
a) many of the claims contained in the CFMEU’s log of claims are unarticulated and/or absent proposed wording;
b) all of the 19 ports are different, including, for example, in relation to rostering arrangements;[12]
c) the CFMEU’s national approach to bargaining means that many of the claims under Part A, in respect of Brisbane and Port Kembla, have nothing to do with these two ports (or the relevant employees that work at these ports);
d) the fact that there is evidence that some Part B claims have been made and/or discussed takes the proposition of genuinely trying to reach agreement in this case nowhere. Part B discussions are going nowhere given that Part A terms and conditions have not been settled or agreed;
e) tabling only “key” Part B claims is an admission by the CFMEU that more Part B claims are to come, but Qube has no idea what those further claims are;
f) the summary position arising from (a) to (e) above is that:
i)the CFMEU does not know what claims or ultimate outcome it is seeking from bargaining, and it follows, that neither does Qube;
ii)the CFMEU has engaged in conduct or bargaining preparatory to the development of an agreement, as compared to genuinely trying to reach a final agreement;
iii)Qube simply cannot know what it is being asked to agree to, noting that agreement cannot be reached unless a complete offer is put forward by the CFMEU for Qube to consider and respond to (let alone agree to);
iv)the readily available inference from (i) to (iii) above is that the CFMEU is not genuinely trying to reach agreement, but is instead pursing an intractable bargaining declaration;
v)hard bargaining is one thing, but making operationally and economically unfeasible claims to apply across all ports, when the focus should be upon genuine agreement in the ports of Brisbane or Port Kembla, has nothing to do with hard bargaining. Rather, it is a factor that weighs against any finding as to the CFMEU genuinely trying to reach agreement for a proposed enterprise agreement in the ports of Brisbane and Port Kembla. Indeed, it points to the CFMEU’s focus not being on the needs of the ports in Brisbane and Port Kembla; and
vi)the strategy, manner or structure to the CFMEU’s bargaining approach in this case gives rise to uncertainty, and an inability for the parties to get to ‘Yes’ (i.e. reach an agreement).
CFMEU’s submissions
The CFMEU contends that the evidence discloses that it has been, and is, as the bargaining representative for relevant employee members of Qube, genuinely trying to reach agreement with Qube in respect of the Brisbane and PK EAs. In this regard, the CFMEU submits:
a) the CFMEU’s Part A claims have been put to Qube. Qube understands those Part A claims, has considered them, and has responded to them, which in turn has triggered further responses to Qube’s responses by the CFMEU;
b) there is a s.240 application on foot, and Part A claims continue to be pressed by the CFMEU through the auspices of that application;
c) Part B claims have also been put to Qube for Brisbane and Port Kembla;
d) bargaining has been and is being conducted at each port;
e) the number of claims being advanced by the CFMEU do not reach a point where it can be said that it is impossible for bargaining to occur or continue;
f) various claims by the CFMEU have been removed, amended, adjusted, or moved away from. This is not a case where claims are being added each day or each time bargaining representatives meet, such that the goal posts are being continually moved;
g) the evidence does not support a finding, directly, or by way of inference, that the CFMEU is not seeking to bargain for an enterprise agreement, and/or that it is seeking to position itself to apply for an intractable bargaining declaration;
h) the Commission can be satisfied that the CFMEU is genuinely trying to reach agreement. It has put its claims to Qube. It has made a s.240 application (which is currently before the Commission). The CFMEU has now made an application for a PABO in Brisbane and Port Kembla. All of these steps are proper, and are indicative of the CFMEU genuinely trying to reach agreement for a new enterprise agreement in the ports of Brisbane and Port Kembla;
i) the findings of the Full Bench in Total Marine (at [36]) are based upon the particular facts and circumstances of that case, which are not the facts of this case. More specifically:
·the CFMEU has not “parked” any of its claims pending other discussions with other third-party employers; and
·the CFMEU’s claims are not mere headlines. Indeed, the bargaining representatives have set out their respective positions on each of the CFMEU’s claims;
j) the fact that Qube has sought further information or draft wording around some of the CFMEU’s claims is part and parcel of bargaining. There is no suggestion that the CFMEU has refused to provide further information or draft wording to Qube, or that same will not be provided upon request in due course. Again, this is all part and parcel of bargaining, which is always moving process, or a ‘moving feast’, as parties make relevant concessions and advance towards reaching a final agreement. What ends up in a final agreement (to be put to a vote of relevant employees) may contain terms arising from claims made at the start of bargaining, or terms that were agreed to during the course of bargaining (that were not the subject of an initial claim);
k) the suggestion that the applications for protected action ballot orders are premature is not supported on the evidence; and
l) the fact that the CFMEU seeks substantial wage rises, and changes to other terms and conditions (around rostering and notification periods) that will also entail increases to labour and operational costs, needs to be seen in context. There is no evidence that the CFMEU is advancing its claims on the basis of an ‘all or nothing’ approach. Certain claims may be agreed to or removed based upon concessions to other claims. In this context, the CFMEU’s claims (on an individual or collective basis) are not fanciful, or advanced in a manner that means that agreement is impossible. Rather, the CFMEU is genuinely trying to reach agreement, with its efforts to try and progress bargaining being part and parcel (or a step along the way) to its efforts to (or genuinely try to) reach agreement with Qube for a new enterprise agreement.
Bargaining representative construction issue
Qube has raised an issue of construction, namely, how does a bargaining representative (such as the CFMEU in this case) genuinely try to reach agreement with Qube when it has no role under the Act in doing so (beyond the practical). In other words, an enterprise agreement is made when an employer puts it out for a vote of relevant employees, and such employees (by majority) vote in favour of it. There is no direct evidence from employees (at the ports of Brisbane and Port Kembla) who will be voting upon any proposed enterprise agreement that is to be put to them, or otherwise setting out their position in respect of the CFMEU’s log of claims.[13]
Mr Smith’s evidence is that the CFMEU’s log of claims has been endorsed by its members,[14] i.e. notwithstanding that some individual members may have different views about some of the claims, a majority of CFMEU members employed by Qube have endorsed the log of claims.
I find that Mr Smith’s evidence is sufficient to dispose of Qube’s contention that the CFMEU (as bargaining representative and applicant in both applications before me) is not, or maybe not, pursuing claims on behalf of its relevant employee members.
Consideration
Qube’s four core contentions opposing a finding that the CFMEU has been, and is, genuinely trying to reach agreement, whilst separate, are very much intertangled or intertwined.
The first contention raised by Qube is that the applications are premature. There is no requirement for the CFMEU to get as far as it can in negotiations with Qube before it makes a protected action ballot order application. The evidence discloses that the CFMEU has articulated its claims to Qube in respect of Part A, and has articulated its key claims in respect of Part B. Qube has understood those claims, and responded to them.[15] Negotiations have occurred at each port. Some draft clauses have been provided, as has further information. Further draft clauses and further information is pending, and there is no evidence that the CFMEU has refused any of Qube’s requests for draft clauses or further information. Parties are continuing to bargain, or have not indicated that they will not continue to bargain via the exchange of information, draft clauses, and claim and counter claim. I do not accept that the evidence enables me to make a finding that the CFMEU has not been or is not genuinely trying to reach agreement with Qube on the basis that it has filed the PABO applications prematurely.
The second contention raised by Qube is that the CFMEU has been (and is) approaching bargaining with Qube as a veiled means to an end, so as to obtain an intractable bargaining declaration, i.e. as opposed to the CFMEU’s motivations being to genuinely try to reach an agreement. The CFMEU denies this contention, and has advanced submissions (by reference to the evidence) that it says support this denial, and point to its true motivations, namely, to reach agreement with Qube for an enterprise agreement to be put to a vote of relevant employees and be approved by a valid majority. In order to make a finding consistent with Qube’s contention, I need to draw an inference to that effect. Such an inference is more difficult to draw in the face of the CFMEU’s denials, in that such denials would need to be clearly contrary to the evidence. Qube submits that the inference is available given:
a) the existence of s.270A of the Act, which is basically one-sided in favour of employees, and displaces the better off overall test (based upon the global terms of an applicable modern award), and replaces it with a rigid and inflexible safety net floor (nailed to each and every individual term of an existing enterprise agreement); and
b) the CFMEU’s approach to bargaining, and its pursuit of “national claims without any material recognition of the individual circumstances at any port, which are impossible to agree to”[16] (also noting the economic and operational impacts of the CFMEU’s claims upon Qube’s business).
Whilst it might be accepted that the mere existence of s.270A of the Act blasts open the gate to the possibility of an inference of the kind contended by Qube to be made, more is required. In the facts and circumstances of this case, including by reference to the evidence as to the bargaining that has occurred to date, I do not accept that an inference of the kind contended by Qube is available to be drawn. I say more about the CFMEU’s approach to bargaining in paragraphs [27] to [28] below.
The third contention made by Qube is that the CFMEU’s log of claims is so fanciful, unjustifiable and costly that the log is evidence in and of itself that the CFMEU is not genuinely trying to reach agreement. In rejecting this contention, I concur with the CFMEU’s submissions set out at paragraph [18(l)] of this decision.
The fourth and final contention of Qube is that the CFMEU’s manner or approach to bargaining, by insisting that Part A claims be agreed to (across all ports), prior to Part B claims being resolved, constitutes an inability to get to ‘yes’, and thus supports a finding that the CFMEU is not genuinely trying to reach agreement. In engaging with this contention, I consider the following observations of Deputy President McCarthy in CSBP Ltd v Liquor, Hospitality and Miscellaneous Union[17] to be relevant:
“[65] The context of “genuinely try” should also be viewed within the framework of the legislation as a whole. The Act is premised on a basis that the negotiating means and methods are in the hands of the parties. Rights to bargain are expressed in terms that it is up to the parties what the bargaining processes are and what the means of resolving their differences are.
[66] Rights associated with the conduct of bargaining are not provided but are acquired by the taking of steps and the fulfilling of obligations. The immediate right of the initiating negotiating party, where it is a union, is the right to represent and to initiate bargaining. There are no obligations placed on the non-initiating negotiating party. Rather the non-initiating negotiating party is subject to the consequences of actions that may be taken by the initiating negotiating party as their rights are acquired.
[67] The role of the Commission is limited to ensuring that, before the exercising of the right to take industrial action with immunity, the conditions required to acquire that right have been met.
…
[70] The nature of negotiations for a collective agreement is also very different from most other types of negotiations, including commercial negotiations. In commercial negotiations the seller may change the conditions sought for a sale at risk of a buyer withdrawing from the negotiations. That is the end of the matter and there is no risk of repercussion or consequence other than there being no transaction. In collective bargaining if the buyer (the employer) withdraws from the negotiations the consequence is the risk of economic sanctions by the seller (the union).”
The evidence identifies that the manner in which the CFMEU is approaching negotiations is the same as it has done in the past. That past approach has given rise to enterprise agreements being made across all of Qube’s ports where the same or similar work is being performed (i.e. notwithstanding the operational differences at each port). It follows that I do not accept that the CFMEU’s manner or approach to bargaining is such that I cannot be satisfied that the CFMEU has been and is genuinely trying to reach agreement with Qube.
Having regard to the evidence and submissions of the parties, including my findings at paragraph [15] of this decision, I am satisfied that the CFMEU has been and is genuinely trying to reach agreement with Qube for the ports of Brisbane and Port Kembla, and that the requirements of s.443(1) have been met in respect of both of the PABO applications before me.
For the purposes of s.443(3)(c) and s.448A(2) of the Act, I have determined the date by which voting closes for the ballots will be 14 working days from the date of this decision. I consider this timeframe appropriate taking account of the need for a conference to be conducted in accordance with s.448A of the Act. I am satisfied the date is consistent with the requirement in s.443(3A) of the Act. Orders giving effect to this decision will be separately issued (PR777766 and PR777769).
These matters will be assigned to a Member of the Commission to conduct the s.448A conference, and this Member will issue the Order requiring attendance at the conference, along with Directions to ensure that the parties attend the conference ready to conduct further meaningful negotiations.
DEPUTY PRESIDENT
Appearances:
Mr Luke Edmonds, Legal Officer, and Ms Ella Rowe, Legal Officer, appeared for the Construction, Forestry and Maritime Employees Union.
Mr Matthew Follett, of Senior Counsel, and Mr Andrew Crocker, of counsel, instructed by Ms Sonia Millen, Partner, Allens lawyers, appeared with permission for Qube Ports Pty Ltd.
[1] Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union[2015] FWCFB 210; (2015) 247 IR 5, at [55]-[58] and [69].
[2] [2009] FWAFB 368; (2009) 189 IR 407. This decision overturned the decision of Thatcher C in Maritime Union of Australia v Total Marine Services[2009] FWA 187; (2009) 187 IR 288.
[3] [2015] FWCFB 210; (2015) 247 IR 5.
[4] Exhibits CFMEU 1, CFMEU 2, CFMEU 3, and Exhibit Qube 1; Form F34B (B2024/948) and Form F34B (B2024/949).
[5] Exhibit Qube 1, Attachments 2, 3 and 4.
[6] Excluding the Qube Ports Pty Ltd Sydney Harbour Enterprise Agreement 2020 that has a nominal expiry date of 30 June 2020.
[7] Exhibit Qube1, at [26], and Attachment 8.
[8] Smith Supplementary Statement, at [9].
[9] Transcript, PN334.
[10] Exhibit Qube1, at [33], and Attachment 13.
[11] Exhibit Qube 1, Attachments 2, 3, 6, 7, 8, 9, 13, 15, and 16 to 17.
[12] Transcript, PN343.
[13] Transcript, PN374-PN381. See also CFMEU response, Transcript, PN491-PN495.
[14] Transcript, PN92-PN95.
[15] Exhibit Qube 1, Attachments 5 to 7, 10, and 11 to 17.
[16] Transcript, PN361, and PN368 to PN369.
[17] [2007] AIRC 469, PR977308, 15 June 2007. Albeit by reference to ss.461(1)(a) and (b) of the (repealed) Workplace Relations Act 1996.
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