Australian Municipal, Administrative, Clerical and Services Union v Veolia Water Operations Pty Limited

[2020] FWC 7040

[2020] FWC 7040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Veolia Water Operations Pty Limited
(B2020/858)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 23 DECEMBER 2020

Proposed protected action ballot of employees of Veolia Water Operations Pty Limited.

Introduction and background

[1] The Australian Municipal, Administrative, Clerical and Services Union (ASU) has made an application under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Veolia Water Operations Pty Ltd (Veolia).

[2] The ASU filed a declaration made by Ms Judith Wright, Deputy Branch Secretary of the ASU, on 21 December 2020 in support of the application for a protected action ballot order, together with reply submissions dated 23 December 2020.

[3] Veolia filed and served two sets of submissions setting out its opposition to the protected action ballot order sought by the ASU. 1 Veolia also filed a witness statement made by Mr Paul Coffey, Operations Manager, Hunter Water Contract, on 23 December 2020, including documents attached thereto. Both parties consented to my determination of the application on the papers. Those papers are the application, Ms Wright’s declaration, Veolia’s two sets of submissions dated 23 December 2020, Mr Coffey’s witness statement dated 23 December 2020 including the documents attached thereto, and the ASU’s submissions in reply dated 23 December 2020.

[4] The notification time for the proposed enterprise agreement was 20 August 2020. The nominal expiry date of the existing enterprise agreement which covers the employees the subject of the present application is 31 December 2020.

Issues in dispute

[5] Before I can make the protected action ballot order sought by the ASU, one of the matters about which I must be satisfied is that the ASU has been, and is, genuinely trying to reach an agreement with Veolia. 2

[6] Veolia contends that the ASU has not been, and is not, genuinely trying to reach an agreement with Veolia.

[7] Apart from the contested matters set out in the previous paragraph, there is no dispute between the parties and I am satisfied on the evidence that the statutory requirements for the protected action ballot order sought by the ASU have been met.

Principles re genuinely trying

[8] As to the question of whether a bargaining representative has been and is genuinely trying to reach an agreement, Flick J said the following in JJ Richards & Sons Pty Ltd v Fair Work Australia: 3

“58. 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 Part 2-4, of the Fair Work Act.

59. 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.

60. The Transport Workers’ Union, in the present proceeding, satisfied that requirement by writing to J.J. Richards on 24 December 2010. Rightly or wrongly, J.J. Richards indicated its response in the terms it did in its letter dated 7 January 2011. That exchange of correspondence was sufficient to satisfy the precondition to the exercise of the power conferred by s 443(1).”

[9] In Total Marine Services Pty Ltd v Maritime Union of Australia 4, the Full Bench expressed the following views about s.443(1)(b):

“[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.”

[10] The Full Bench in Esso Australia Pty Ltd v AMWU & Ors 5made the following observations about paragraphs [31] and [32] of the earlier Full Bench decision in Total Marine Services Pty Ltd v Maritime Union of Australia:

“[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).”

[11] In light of these authorities, I will proceed on the basis that whether an applicant “has been, and is, genuinely trying to reach an agreement” is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. 6 No one factor is necessarily determinative of the question of whether an applicant is, or has been, genuinely trying to reach an agreement.7 No alternative test or criteria to the words of s.443(1)(b) should be applied.8 In addition, no specific stage must be reached in the negotiations in order for there to be a finding that an applicant is, and has been, genuinely trying to reach an agreement with the employer.9

[12] The expression “has been, and is” in paragraph 443(1)(b) imports temporal considerations. 10 It is necessary for the Commission to reach the requisite level of satisfaction both (a) at the time the application for a protected action ballot order is made and determined and (b) at an earlier time.

Relevant Facts and Circumstances

[13] Ms Wright gives evidence in her declaration that:

•  The ASU and Veolia have participated in eight bargaining meetings in the period from 20 August 2020 until 25 November 2020.

•  Throughout these meetings the ASU has been, and is, genuinely trying to reach agreement with Veolia. However, the ASU and Veolia have not yet reached agreement in relation to a new enterprise agreement.

•  On 9 December 2020 Veolia notified relevant employees that it would put a proposed new enterprise agreement to a vote on 17 December 2020. Voting took place on 17 December 2020. The proposed agreement was rejected by a majority of employees.

•  The ASU advised Veolia of its intention to make this application.

[14] The following relevant evidence emerges from Mr Coffey’s witness statement:

•  The outcome of the vote taken on 17 December 2020 was 15 (41.7%) employees voted in favour of the proposed agreement and 21 (58.3%) employees voted against the proposed agreement. There was a 97.3% response rate for the vote.

•  The outcome of the vote was communicated to employees by email at 10:36am on 18 December 2020. In that email, employees were informed, inter alia, “The majority was ‘No’, therefore we will recommence discussions in January 2021…”

•  At 3:22pm on 18 December 2020, Mr Peter McPhee of the ASU telephoned Mr Coffey and asked if Veolia would come back to the ASU with anything prior to Christmas, as he did not believe the parties were too far apart. Mr Coffey informed Mr McPhee that Veolia was effectively shutting down until 4 January 2021. Mr McPhee said that if the long service leave clause was deleted or if the proposed percentage wage increase was increased, the proposed enterprise agreement may get up.

Submissions

[15] In its first set of submissions filed on 23 December 2020 Veolia contended that the application for a protected action ballot order should be dismissed because the Commission cannot be satisfied that the ASU has been, and is, genuinely trying to reach an agreement with Veolia. This position was contradicted in Veolia’s second set of submissions filed on 23 December 2020, wherein it was contended:

“… the Respondent does not contend that the Applicant has not been trying to reach agreement during the bargaining process to date. 

However, in circumstances where the Applicant telephoned the Respondent in the afternoon of Friday 18 December 2020, did not put a further position on behalf of its members and asked for a further response but did not allow time for that response to be provided by the Respondent, there is no basis for concluding that at the time this application was made, the Applicant was genuinely trying to reach agreement with the Respondent.”

[16] Veolia submits that in the period between the declaration of the outcome of the vote on Friday, 18 December 2020 to the lodging of the application for a protected action ballot order on Monday, 21 December 2020:

•  no bargaining meetings have been held;

•  the ASU has not put any alternative position to Veolia for its consideration in respect of the proposed enterprise agreement;

•  the ASU has not taken sufficient steps to ascertain whether there would be any further change in Veolia’s position to the terms of the proposed enterprise agreement; and

•  the ASU has not provided Veolia with time to consider its position, in light of the Christmas period, since the unsuccessful vote in relation to the proposed enterprise agreement.

[17] Given the short period of time between the vote on the proposed enterprise agreement on 17 December 2020 and the application for the protected action ballot order on 21 December 2020, it is submitted by Veolia that the ASU has not made sufficient enquiries of Veolia in relation to its response to the terms of the proposed enterprise agreement, given the unsuccessful vote. Accordingly, it is contended that the ASU has not been able to consider seriously Veolia’s position. In these circumstances, Veolia submits that the Commission cannot be satisfied that the ASU is genuinely trying to reach agreement.

[18] Veolia further submits that the ASU made a single telephone call late in the day on Friday, 18 December 2020, following the vote, and queried whether Veolia would be in a position to respond to the ASU before Christmas. Following the advice that Veolia would be shutting down until 4 January 2021, it is contended that the ASU has made no additional effort to further the bargaining process or to simply wait for the new year when bargaining could resume. Veolia submits that while the ASU may well have been genuinely wanting to bargain, this application is premature because it is not actively trying to progress the bargaining at this point in time.

[19] Veolia submits that the application for the protected action ballot order is premature because the ASU has failed to articulate its position in the period since the outcome of the vote was declared on Friday, 18 December 2020 and has not allowed Veolia any time to articulate its position.

[20] Veolia also submits that the ASU has resorted to the making of an application under section 437 before Veolia has had the opportunity to respond to the ASU’s enquiries as to the terms of the proposed enterprise agreement, particularly given the Christmas closedown period.

[21] In summary, Veolia contends that the application should be dismissed because the Commission cannot be satisfied that the ASU has been, and is, genuinely trying to reach an agreement with Veolia given that:

•  the ASU has not put an alternative position to Veolia for its consideration since the unsuccessful vote on the proposed enterprise agreement;

•  the ASU has not made sufficient enquiries to ascertain whether there would be any further change to Veolia’s position to the terms of the proposed enterprise agreement; and

•  the ASU has not provided Veolia with time to consider its position, in light of the Christmas closedown period, since the unsuccessful vote in relation to the proposed agreement.

Consideration

[22] Notwithstanding the inconsistent submissions made by Veolia concerning whether the ASU has been, and is, genuinely trying to reach an agreement, I will consider and determine both points of time. That is, I will consider and determine whether the ASU (a) has been genuinely trying to reach an agreement and (b) is, at the time this application was lodged and is being determined, genuinely trying to reach an agreement.

[23] The parties have participated in eight separate bargaining meetings over a period of about three months. A proposed agreement has been put to vote. It is clear from that process that each party has not only communicated what they are seeking to the other party, but a complete proposed agreement has been tested by way of a vote. The results of the vote were communicated to employees on the morning of 18 December 2020. That afternoon, Mr McPhee, of the ASU, made contact with Mr Coffey for the express purpose of discussing the proposed agreement. The fact that Mr McPhee did not delay in making contact with Mr Coffey after the results of the vote were known demonstrates that the ASU is eager to have a new enterprise agreement negotiated and put in place as soon as practicable after the current enterprise agreement passes its nominal expiry date. Mr McPhee asked Mr Coffey if Veolia would come back to the ASU with anything prior to Christmas, as he did not believe the parties were too far apart. Mr McPhee also made particular suggestions as to how the proposed agreement which had been voted down could be amended, in simple ways, to increase the prospect of the agreement being approved by a majority of employees. Mr Coffey did not engage with any of those suggestions. Instead he informed Mr McPhee that Veolia was effectively shutting down until 4 January 2021. It was only after that information was communicated to Mr McPhee that the application for a protected action ballot order was filed by the ASU in the Commission.

[24] While it is correct that the ASU has not put an alternative position to Veolia for its consideration since the unsuccessful vote on the proposed enterprise agreement, it does not have to do so in order to be genuinely trying to reach an agreement. The ASU has made contact with Veolia since the outcome of the vote was communicated and put forward particular suggestions as to how the proposed enterprise agreement could be improved from the perspective of employees, so as to enhance the prospect of it being approved by a majority of employees. These are genuine steps taken by a bargaining representative for the clear purpose of trying to reach an agreement.

[25] I reject the contention that the ASU has not made sufficient enquiries to ascertain whether there would be any further change to Veolia’s position to the terms of the proposed enterprise agreement. The ASU made a direct enquiry of Veolia on the afternoon the outcome of the vote was communicated to employees. The enquiry was directed to finding out whether Veolia would be in a position to respond to the ASU before Christmas. The firm answer to the enquiry was that Veolia would not be engaging in any further bargaining or putting forward any further positions until the new year. It would have been pointless for the ASU to have made any further enquiries of Veolia in those circumstances.

[26] I do not accept that the ASU has failed to provide Veolia with time to consider its position, in light of the Christmas closedown period, since the unsuccessful vote in relation to the proposed agreement. Veolia knew the vote was taking place on 17 December 2020 and the results would be disclosed shortly thereafter. It had time both before the vote (in anticipation of a potential ‘no’ vote) and since the outcome of the vote was known on 18 December 2020 to consider its position and communicate any proposal it wished to make to employees. The fact that the business has apparently closed down over Christmas did not prevent three managers from Veolia attending the directions hearing in this matter yesterday, nor did it prevent Veolia from preparing and filing written submissions and a witness statement today. Further, Veolia will have plenty of time after its Christmas closedown period to consider its position before the results of the protected action ballot order are known and notice of any intention to take protected industrial action is given.

[27] By reason of the facts, matters and circumstances summarised in the previous four paragraphs, I am satisfied that the ASU has been, and is, genuinely trying to reach an agreement with Veolia.

Conclusion

[28] In light of my findings set out above, a protected action ballot order must be made pursuant to s 443(1) of the Act.

[29] The order [PR725820] will be issued concurrently with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR725819>

 1   The first submission was filed at 9:32am on 23 December 2020. The second submission, in the body of an email from Mr Hesketh, was filed at 1:37pm on 23 December 2020.

 2   Section 443(1)&(2) of the Act

 3 [2012] FCAFC 53

 4   [2009] FWAFB 368

 5   [2015] FWCFB 210

 6   Esso Australia Pty Ltd v AMWU & Ors[2015] FWCFB 210 at [57] & [69]

 7   Ibid at [55]

 8   Ibid at [35]

 9   AMWU v HJ Heinz Company Australia Ltd[2009] FWA 322 at [20]

 10   Ibid at [54]