Australian Rail, Tram and Bus Industry Union v Rail Shuttle Services Pty Ltd T/A Railtrain
[2022] FWC 814
| [2022] FWC 814 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Australian Rail, Tram and Bus Industry Union
v
Rail Shuttle Services Pty Ltd T/A Railtrain
(B2022/246)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 8 APRIL 2022 |
Proposed protected action ballot of employees of Rail Shuttle Services Pty Limited
Introduction and background
The Australian Rail Tram and Bus Industry Union (RTBU) has made an application under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to employees of Rail Shuttle Services Pty Ltd (RSS) who are members of and entitled to be industrially represented by the RTBU and who will be covered by the proposed enterprise agreement which the RTBU is seeking to negotiate with RSS (Employees).
The RTBU relied on witness statements made by Mr Kevin Pryor, Organiser, and Mr Daniel Benney, who is employed by RSS in the position of Second Person.
RSS filed and served a response dated 30 March 2022, a further response dated 1 April 2022, a witness statement made by Mr Lee Beddow, RSS Manager, and a witness statement made by Mr Paul Pager, an employee of the Railtrain Holding Group, of which RSS is a part.
The parties participated in a hearing, by video conference, on 7 April 2021. Mr Pryor and Mr Benney attended the hearing and gave oral evidence. Mr Beddow and Mr Pager were not required for cross examination.
I have read and considered the material filed by the parties, together with the evidence adduced at the hearing and the oral submissions made at the hearing.
Orders sought
The RTBU has applied for orders to be made in the following terms:
“1.PROTECTED ACTION BALLOT TO BE HELD
The Australian Rail Tram and Bus Industry Union (the Union) is to hold a protected action ballot of employees of Rail Shuttle Services (the Employer).
2.NAME OF PERSON AUTHORISED TO CONDUCT THE BALLOT
The ballot is to be conducted by the Australian Electoral Commission
3.GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED
The employees of Rail Shuttle Services who are members of and are entitled to be industrially represented by the Australian Rail Tram and Bus Industry Union and who will be covered by the proposed enterprise agreement.
4.TYPE OF BALLOT
AEC to advise
5.DATE VOTING CLOSES
Twenty working days from the date of this order
6.QUESTIONS
In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by RTBU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the actions set out below:
1. taking protected industrial action in the form of an unlimited number of stoppages of work of 1 minute to 24 hours in duration;
[yes/no]
2. bans or limitations on the manner in which work performed by undertaking:
a.Bans on operating trains that contain specified containers;
b.Bans on operating trains that are longer than a specified length;
c.Bans on accepting lift up and lay back directions;
d.Bans on accepting any working or shifts that are outside of what is provided on the master roster;
e.Bans on accepting overtime;
f.Bans on working with employees from the Railtrain Group who are not employed directly by Rail Shuttle Services;
[yes/no]
3. changes to the way that work is performed in the following ways:
a.Distributing union and/or industrial campaign material by any means;
b.Attaching union and industrial campaign material to outgoing mail, emails and adding it to Railtrain and Rail Shuttle Services materials and displays;
c.Attaching union and industrial campaign material to Railtrain and Rail Shuttle Services vehicles and assets (that does not impact on safety); and/or
d.The provision of any information, in any form, concerning the views of employees about any aspect of the bargaining campaign to any members of the public, including the media
[yes/no]”
Legislation
Section 443 of the Fair Work Act 2009 (Cth) (Act) governs when the Commission must make a protected action ballot order. It provides:
| 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. (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. (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. |
Issues in dispute
RSS opposes the application for a protected action ballot order on the following grounds:
(a)First, the application seeks orders to be made regarding matters which are not industrial action as defined by the Act and therefore the application has not been properly made under section 437 of the Act.
(b)Secondly, the application seeks orders for the making of a ballot which contains ballot questions that are ambiguous and lacking in specificity.
(c)Thirdly, the application has been made in circumstances where there is evidence that the RTBU is not genuinely trying to reach an agreement with RSS on the terms of an enterprise agreement.
I will address the genuinely trying point first.
Genuinely trying to reach an agreement
Applicable principles
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:[1]
“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).“
In Total Marine Services Pty Ltd v Maritime Union of Australia[2], 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.”
The Full Bench in Esso Australia Pty Ltd v AMWU & Ors[3] made 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).”
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.[4] No one factor is necessarily determinative of the question of whether an applicant is, or has been, genuinely trying to reach an agreement.[5] No alternative test or criteria to the words of s 443(1)(b) should be applied.[6] 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.[7]
The expression “has been, and is” in s 443(1)(b) imports temporal considerations.[8] RSS contends that “is” refers to the time at which the application for a protected action ballot order is lodged in the Commission. I do not accept this contention. The use of the present tense “is” in s 443(1)(b) of the Act requires satisfaction that, at the time of the determination of the application for protected action ballot orders, the applicant is genuinely trying to reach an agreement with the employer.[9] The use of the past tense “has been … genuinely trying to reach an agreement” in the provision requires satisfaction that the applicant “had been genuinely trying to reach an agreement prior to the time of determination … in the course of negotiations.”[10]
Relevant facts and circumstances
RSS is primarily a labour hire firm. RSS has a contract with Pacific National to use its trains to carry out and manage its rail shuttle services between St Mary’s and Port Botany (Services). The parties are negotiating an enterprise agreement to cover RSS’s Employees who undertake work on the Services.
There is no dispute that the RTBU is a bargaining representative for the proposed enterprise agreement.
The trains used by RSS to provide the Services consist of an 82-class locomotive and (usually) 31 wagons. The wagons are either 40 foot or 60 foot long. The wagons are loaded with containers, which come in a variety of colours, brands and three sizes: 20 foot, 40 foot, and 60 foot. A 60 foot long wagon can be loaded with one 40 foot container, three 20 foot containers, one 20 foot container and a 40 foot container, or one 20 foot container. The port controls how many, and what type, of containers are loaded on to a wagon.
A “train consist” provides information as to the length of a train in metres.
The trains travel from St Mary’s to Port Botany where they are loaded by the port with import containers.
Neither RSS nor the Employees have any say in or control over how many or what types of containers are loaded on the wagons. The Employees simply drive the locomotive and the 31 wagons to Port Botany where they are required to deliver the wagons inside the port site. An Employee in the position of Second Person then detaches the wagons from the locomotive and returns to the locomotive for an Employee in the position of Driver to drive the locomotive off the port site while the wagons are loaded with containers. The gates of the port close so that the wagons are inside the port site and the locomotive is outside. The stevedores at the port load the containers onto the wagons without any input by RSS or the Employees.
Once the containers have been loaded into the wagons at the port, the gates to the port are opened to allow the locomotive to enter the port and become attached to the wagons. The Driver and Second Person then drive the train back to St Mary’s where the containers are unloaded from the wagons by Australia Container Freight Services, who then distributes the containers as required.
On 12 May 2021, RSS wrote to the National Secretary of the RTBU to inform the RTBU that a notice of representational rights would be issued on that day and RSS was beginning to bargain with the Employees for an enterprise agreement.
On about 17 May 2021, RSS informed the RTBU that the first bargaining meeting would take place on 19 May 2021. Twenty bargaining meetings have taken place on the following dates:
(a)19 May 2021;
(b)29 May 2021;
(c)7 June 2021;
(d)8 July 2021;
(e)15 July 2021;
(f)22 July 2021;
(g)19 August 2021;
(h)26 August 2021;
9 September 2021;
(j)20 September 2021;
(k)22 September 2021;
(l)27 September 2021;
(m)11 November 2021;
(n)25 November 2021;
(o)14 December 2021;
(p)20 January 2022;
(q)7 February 2022;
(r)3 March 2022;
(s)9 March 2022; and
(t)15 March 2022.
In these bargaining meetings the parties have exchanged claims and offers in relation to matters that are proposed to be included in the proposed enterprise agreement. Some of those claims or offers have been accepted. Others have not. Where proposals have been rejected, reasons have been provided to explain why the proposal is not acceptable. Meaningful concessions have been made by RSS and the RTBU in their negotiations for an enterprise agreement.
During the course of bargaining RSS has put a proposed enterprise agreement to a vote on two occasions. The first occasion was on 3 August 2021. The second occasion was on 7 October 2021. On both occasions a valid majority did not vote in favour of the proposed agreement.
I have facilitated two bargaining meetings as part of my involvement in separate proceedings in which the assistance of the Commission was sought to deal with a bargaining dispute. Those bargaining meetings took place on 10 February 2022 and 3 March 2022. I have also been involved in other proceedings between the RTBU and RSS in relation to bargaining for an enterprise agreement to cover the Services.
At the end of the bargaining meeting on 3 March 2022, my Associate sent the following communication to the parties:
“Dear parties
I refer to the conference in this matter before Deputy President Saunders earlier today.
Deputy President Saunders’ recollection of the main outcome of each issue discussed is as follows:
Base rates and Flat rates (loaded rates)
•The RTBU needs further time to examine the speadsheets and information provided by Mr Elston concerning the calculation of loaded rates.
Increase in pay rates during the term of the EA
•The RTBU will provide RSS with a question for the relevant manager within RSS to answer by way of affidavit.
•RSS will consider the recommendation by DP Saunders that the manager set out verbatim in an affidavit the content of the relevant clause(s) from the commercial agreement with PN which answer the question to be posed by the RTBU.
Flat rate multiplier for additional hours worked (30% v 50%)
•This issue will be considered further once the RTBU better understands how the loaded rates have been calculated.
Flat rate multiplier for public holidays (50% v 250%)
•This issue will be considered further once the RTBU better understands how the loaded rates have been calculated.
Flat rate multiplier for additional hours worked (30% v 50%)
•This issue will be considered further once the RTBU better understands how the loaded rates have been calculated.
Public holidays that fall on a rostered day off for an employee
•This issue will be considered further once the RTBU better understands how the loaded rates have been calculated.
Other employees working on the PN contract - St Mary’s to Port Botany
•RSS does not object to agreeing to other employees from within the RSS group being paid the rates under this EA if they do work covered by this EA.
•DP Saunders recommends that RSS agree to the inclusion of a clause which imposes the same requirement for any external (eg labour hire) employees it uses to do work covered by this EA. The RTBU will propose wording for such a clause.
Overtime for part time and casual employees
•The parties have reached agreement on a clause for part time employees.
•DP Saunders considers the current proposal whereby casual employees are entitled to overtime if they work more than 7.6 hours per day to be reasonable and appropriate.
Redundancy
•This is a commercial issue to which each party will give further consideration.
Stand down
•DP Saunders recommends that the clause be redrafted to delete the requirement to provide notice of a stand down but to impose an obligation on RSS to use its best endeavours to provide employees who may otherwise be stood down with paid work within the RSS Group or paid training before any stand down is imposed on employees.
Trauma leave
•It is agreed that the draft proposed by RSS be adopted subject to the following amendment:
“31.3 If the affected employee(s) and site manager cannot reach agreement … will be dealt with under clause 15, Grievance/Dispute Settlement Procedure, and if in an arbitration under that procedure the FWC finds that the discretion was not exercised reasonably, the FWC may require RSS to provide additional days of leave or pay the employee in respect of additional days of leave which should have been given.”
Personal/Carer’s/Compassionate leave
•The RTBU’s primary concern is about employees not being aware of their entitlement pursuant to the NES savings provision if they take compassionate leave during their first year of employment.
•Mr Elston will propose some wording for consideration by the RTBU.
Workplace representation
•This issue may be revisited at a later time.
Automatic progression L4 – L5
•The RTBU will make enquiries to determine whether this is a real issue in this business (i.e. have any drivers in training been stuck in that classification for 4 or 5 years). If not, DP Saunders recommends leaving clause as is.
Training Bonds
•This issue may be revisited at a later time.
Mechanism for changing loaded rates
•Provided agreement can be reached on the loaded rates, it is agreed that there will be no mechanism in the agreement to change loaded rates during the operation of the agreement.
Each party should endeavour to provide their proposals and communications in relation to these issues to the other party as soon as reasonably practicable.
The parties will arrange the next meeting(s) themselves. It is expected that those meetings will take place before Mr Elston goes on 3 weeks’ leave on 21 March 2022. DP Saunders will not attend or participate in any meetings prior to 21 March 2022.
Each party has liberty to apply to have the matter listed for further conference or report back.”
The parties participated in a bargaining meeting on 15 March 2022. No further bargaining meetings have been held since that time.
Following the bargaining meeting on 15 March 2022, it was agreed that RSS would provide a response to the RTBU on concepts that were discussed at the meeting relating to the use of flat rates of pay and loaded rates of pay within the proposed agreement. It was also agreed that the RTBU would provide some proposed amendments to RSS in relation to the personal leave clause and a clause relating to other workers working at the St Mary’s site.
On 16 March 2022, the RTBU provided RSS with some proposed amendments to clauses pertaining to personal leave and other workers working at the St Mary’s site.
On 18 March 2022, Mr Chris Elston, Railtrain General Manager – People & Safety, sent an email to Mr Pryor and others in the following terms:
“Hello Kevin,
Arising from the RSS St Mary’s Bargaining meeting on Tuesday, RSS were to come back to the RTBU by this Friday in terms of our thinking regarding a number of concepts that were floated in relation to the loaded rates. After discussing these internally, the course of action is that RSS management have elected to undertake is to provide a consolidated view on the totality of the draft proposed EA. As was discussed, this was to be provided to the RTBU and EA Bargaining Reps by cob Wednesday 23 March 2022. In the opinion of RSS this is the most appropriate vehicle to address the outstanding items.As you are aware I am on annual leave as from today and not returning to the office until Monday 11 April. In my absence please contact Paul Pager, National IR Manager.
Regards,
Chris”
RSS did not meet its commitment to provide a “consolidated view on the totality of the draft proposed EA” by the close of business on 23 March 2022.
On 24 March 2022, Mr Pryor met with RTBU members employed by RSS. The purpose of the meeting was to discuss RSS’s “consolidated view on the totality of the draft proposed EA”. That objective could not be met, because RSS had not met its commitment to provide the necessary information. The employees advised Mr Pryor that they were frustrated with RSS’s delay and wished to undertake protected industrial action in the near future to support their enterprise agreement claims. Mr Pryor discussed with the employees the types of industrial action they wished to pursue. Mr Pryor used that information to prepare an application for a protected action ballot order.
On 25 March 2022, Mr Pager sent an email to Mr Pryor in the following terms:
“Dear Kevin
I refer to the below email from Chris and apologise for the delay in sending this email.
Unfortunately, due to internal circumstances, RSS have not been able to complete the consolidation of the draft proposed EA in the required timeframe to ensure that it could be provided to the RTBU by the indicated date.
Accordingly, RSS wish to advise that it is out intention to have the draft proposed EA to the RTBU by COB Monday, 28 March 2022.
Please don’t hesitate to give me a call should you wish to discuss this further.
Once again, I apologise for the lateness of this email and the delay in providing the Draft EA.”
Unlike a number of other communications between RSS and the RTBU in relation to bargaining for an enterprise agreement to cover the work performed in providing the Services, Mr Pager’s email of 25 March 2022 to Mr Pryor was not copied to the other employee bargaining representatives for the proposed agreement.
Mr Pryor was at a funeral on Friday, 25 March 2022 He did not check his emails until Monday, 28 March 2022.
On 28 March 2022, Mr Pryor relayed the content of Mr Pager’s email of 25 March 2022 to some RSS employees including other employee bargaining representatives.
Also on 28 March 2022, at some time before 12:40pm, the RTBU published a “newsflash” to members of its loco division. The “newsflash” was written by Mr Pryor. It states:
“Rail Train - Rail Shuttle Services Members
St Mary’s DepotNegotiations for an RSS Enterprise Agreement have been ongoing since May last year. Whilst progress had been made in last few weeks, recent promises have been broken, leaving members feeling frustrated at a critical time in negotiations.
Rail Train Management promised that Members would have a Pay proposal, which included an overtime and Public Holiday rate by Friday 18th March 2022, also Members were also advised that a completed draft Enterprise Agreement would be made available by Wednesday 23rd March 2022.
At the time of writing, members and the Union are yet to receive any Pay proposals or an updated Enterprise Agreement.At a site meeting last week with RTBU Locomotive Division Members and EA Delegate’s, it was clear that Members across the Rail Shuttle Services St Mary’s Depot have had enough of Rail Train Management’s promises and have fully endorsed the taking of Protected Industrial Action to hold them to account.
This endorsement has not come lightly from Members, who have been bargaining and genuinely trying to reach agreement for nearly a year before endorsing industrial action.
While the Fair Work Commissioned has assisted in reaching agreement with respect to some items, it was up to Members and Rail Train Management to sort out the remaining items, and broken promises are frustrating this process.
Well, enough is enough. Rail Shuttle Members just want:
• A decent wage.
• Decent pay increases each year.
• Decent overtime rate for working RDO’s and excess hours; and
• A decent Public Holiday rate when working Public Holidays - just like everyone else.
Members have expressed their concern that they are working Pacific National trains, trains that have Pacific National’s branding, and servicing Pacific National’s customers – and they should be on a Pacific National Enterprise Agreement, with appropriate conditions that have been fought over many years by Train Crew.
Members know that this is a last resort to take Protected Industrial Action just to have a reasonable Enterprise Agreement like everyone else in the industry.
The RTBU Locomotive Division will lodge the Application for a Protected Action Ballot Order today. It is important that all RTBU Union Members vote YES for every action. Once the Protected Industrial Action Ballot has been voted up, there will be another meeting to establish what, which and when any item on the list will be taken.
Only RTBU Union Members can vote and take Protected Industrial Action.
Not a member, then join today or if you have any questions about joining, please contact the RTBU Head Office on (02) 9264 3400.
AUTHORISED: Farren Campbell - Locomotive Divisional Secretary
Level 4, 321 Pitt St Sydney. NSW 2000”
Mr Pryor gave evidence, which I accept, that he did not make any mention in the “newsflash” article of Mr Pager’s email of 25 March 2022, or Mr Pager’s statement of “intention” to have the draft proposed enterprise agreement to the RTBU by the close of business on Monday, 28 March 2022, because there was no guarantee or promise that the draft proposed enterprise agreement would be provided by that time. Mr Pryor also made mention in his oral evidence of his belief that RSS had not met its good faith bargaining obligations because Mr Pager had not copied other employee bargaining representatives into his email to Mr Pryor on 25 March 2022.
The “newsflash” refers to a desire on the part of RTBU members to be “on a Pacific National Enterprise Agreement, with appropriate conditions” on the basis that they “are working on Pacific National trains … and servicing Pacific National’s customers”. Mr Pryor gave evidence, which I accept, that he believes RSS’s employees should be on similar terms and conditions to Pacific National’s employees because they are doing the same work.
At about 3:49pm on 28 March 2022, Mr Pager emailed a consolidated draft proposed enterprise agreement to Mr Pryor and others. The email annexed to Mr Pager’s statement shows a sent time of 3:49pm, but it is not clear whether that time accounts for differences in daylight savings between different states. It is not necessary to resolve this issue because, on any view, it is clear that the consolidated draft proposed enterprise agreement was sent to the RTBU at a time very close to when the RTBU filed its application for protected action ballot orders in the Commission.
At 4:18pm on 28 March 2022, the RTBU filed and served its application for protected action ballot orders in the Commission.
In the period between his receipt of Mr Pager’s email on 25 March 2022 and the filing of the application for protected action ballot orders in the Commission on 28 March 2022, Mr Pryor did not speak to any RTBU members employed by RSS.
On 1 April 2022, Mr Pryor sent an email to Mr Pager in the following terms:
“Afternoon Paul,
We would like to meet regarding Rail Train’s “Totality Offer” as expressed within the email and annexed proposed enterprise agreement dated 28th March 2022.Our understanding from the most recent bargaining meeting is that we were to expect updated rates in the enterprise agreement and some movement on commercial terms. However this ‘total package’ contains rates that are essentially unchanged since September last year.
Further many of the clauses where we were anticipating a compromise have been included in this agreement unchanged – such as site rates clauses. This is very disappointing in circumstances where RSS have sought the involvement of the Commission and then proceeded to ignore the recommendations that came out of that process.
We would like a meeting to understand;
A. Why the employee pay claims we understood RSS were considering have been rejected out of hand;
B. Why other non-commercial claims have been refused; and
C. To let RSS explain it’s latest offer so that we may consider the proposal.
We would like to propose next Friday, the 8th April 2022, between 0900 and 1300hrs.
Can you advise if this time suits”
On 4 April 2022, Mr Pager sent an email to Mr Pryor in the following terms:
“Morning Kevin
I refer to your email below.
RSS welcomes the opportunity to meet and discuss the totality of our position however, Friday is not suitable.
Could I suggest Tuesday, 12 April 2022, at around 09:30 am or Thursday, 14 April 2022, at around 09:30 am?”
On 5 April 2022, Mr Pryor sent an email to Mr Pager in the following terms:
“Afternoon Paul,
Thursday the 14th April at 0930hrs is the most suited.
Would you like to send out a Teams invite to all?”
Mr Pryor gave unchallenged evidence, which I accept, that it has always been his intention when bargaining with RSS to achieve an enterprise agreement with as favourable pay and conditions as possible, and he has been trying to achieve such an agreement sooner rather than later.
Submissions re genuinely trying
RSS contends that the RTBU was not genuinely trying to reach an agreement with RSS in the period from some time after Mr Pryor’s meeting with RTBU members on 24 March 2022 to about 1 April 2022.
RSS submits that the RTBU, leading up to the filing of the application on 28 March 2022, cannot be said to create the necessary degree of satisfaction for the Commission to make a finding that the RTBU was genuinely trying to reach an agreement. This is because, so RSS contends, the application was filed prematurely, on the day, but prior to, the time at which they were aware they were to receive the totality of RSS’s offer regarding the terms of the proposed enterprise agreement in circumstances where that offer would:
(a)provide further details regarding all terms and conditions of employment which would be offered by RSS within the updated agreement; and
(b)respond to the RTBU’s most recent position, which it had continued to maintain with little change since September 2021 regarding:
(i)the pay increases to be provided to employees each year;
(ii)how overtime would be calculated for all purposes of the agreement; and
(iii)how public holidays would be paid for employees who worked a public holiday.
RSS contends that from the time of the publication of the “newsflash” article on 28 March 2022, the RTBU had, at least temporarily, ceased its genuine efforts to reach an agreement, and filed the application for protected action ballot orders after it had departed from applying genuine efforts.
RSS submits that the RTBU did not await the receipt of the comprehensive bargaining offer from RSS. It says the RTBU was aware that a comprehensive response was forthcoming, and it would be received on that day the application was filed in the Commission, but chose not to wait. It may be inferred, so RSS contends, where the RTBU would need only have waited a matter of hours to receive the most comprehensive update on the totality of the bargaining from RSS, they were not acting genuinely in their choice of filing the application or their choice to file the application without consideration of such terms.
As to the lack of consideration by the RTBU of the position of RSS before the filing of the application for protected action ballot orders, RSS submits that the Federal Court has considered the failure to meaningfully engage with the position of the employer to be a determinative factor as to whether the applicant has been genuinely trying to reach agreement.[11]
It is submitted by RSS that in assessing the RTBU’s conduct, the Commission may consider what it contends to be misleading representations in the “newsflash” article published on 28 March 2022 to RTBU members. RSS contends that the publication omitted important details regarding communications from RSS about the updated timeframe in which it would provide its full response and the totality of the terms offered within the agreement. This creates an inference, so RSS submits, that the RTBU had no intention at the time of filing the application of considering the forthcoming totality offer of RSS (in compliance with its good faith bargaining obligations), and supports a finding that the application for protected action ballot orders was not made in circumstances where the RTBU had the genuine intent of making an agreement. RSS also relies on the fact that Mr Pryor did not receive any communications from RTBU members employed by RSS in the period between the meeting on 24 March 2022 and filing the application on 28 March 2022, nor did Mr Pryor wait for any response from RTBU members after he sent some of them, on 28 March 2022, Mr Pager’s email of 25 March 2022 before filing the application in the Commission at 4:18pm on 28 March 2022.
RSS further submits that the RTBU’s motivation is evident from its conduct in not seeking to have a related bargaining dispute brought back before the Commission, pursuant to the statement issued by my Associate on 3 March 2022. It is contended that this was the proper course of conduct for the RTBU to take if it took the view that bargaining was not progressing.
RSS submits that, when examined in its entirety, the conduct of the RTBU supports a finding that its true motivation is to apply pressure to RSS and Pacific National in pursuit of its organisational ideological goal which is limiting the use of labour hire service arrangements within the rail industry in New South Wales.
The RTBU submits that it is, and has been throughout the whole bargaining period, genuinely trying to reach an agreement with RSS.
Consideration re genuinely trying
The parties have participated in 20 separate bargaining meetings over a period of about 11 months.
It is clear that each party has communicated what they are seeking to the other party and explained the basis for their proposals and responses to the other side’s proposals. Each side has compromised on a number of claims over a period of time.
There are matters which remain unresolved between the parties, but the existence of such disputes does not suggest in the circumstances of this matter that the RTBU is not, or has not been, genuinely trying to reach an agreement with RSS.
I have no hesitation in reaching a state of satisfaction that the RTBU has been, during the period of bargaining negotiations, genuinely trying to reach an agreement. There is no evidence before the Commission to support any contention that the RTBU has, at some earlier time in the bargaining prior to the lead up to the making of the present application, failed to comply with its good faith bargaining obligations or otherwise conducted itself in a manner such as to demonstrate that it was not genuinely trying to reach an agreement with RSS.
As to whether the RTBU is, at the time this application is being determined, genuinely trying to reach an agreement with RSS, the circumstances which existed in the period from the conclusion of Mr Pryor’s meeting with RTBU members on 24 March 2022 and about 1 April 2022, the end of RSS’s disputed period, are not determinative of the position now. RSS did not contend that the RTBU is, at the time of determining this application, not genuinely trying to reach an agreement with RSS. It plainly is. The RTBU has been active in taking steps to arrange the next bargaining meeting with RSS to discuss its response to the most recent draft enterprise agreement communicated by RSS on 28 March 2022. The next bargaining meeting has been arranged for 14 April 2022.
The findings I have made above are sufficient to conclude that the RTBU has been, and is, genuinely trying to reach an agreement with RSS. It follows that I do not need to determine RSS’s contention that the RTBU was not genuinely trying to reach an agreement with RSS in the period from some time after Mr Pryor’s meeting with RTBU members on 24 March 2022 and about 1 April 2022. In any event, I will now determine that point for completeness.
Mr Pryor’s conduct on 28 March 2022 must be viewed in context. The relevant context begins with an appreciation that RSS initially proposed to revert to the RTBU, by Friday, 18 March 2022, with its “thinking regarding a number of concepts that were floated in relation to the loaded rates”.[12] On 18 March 2022, RSS stated that it would provide “a consolidated view on the totality of the draft proposed EA” by the close of business on 23 March 2022.[13] Mr Pryor arranged a meeting with RTBU members on 24 March 2022 to discuss RSS’s “consolidated view”. RSS did not meet its commitment to provide the relevant information to the RTBU by the close of business on 23 March 2022. The RTBU’s members were understandably frustrated by this delay when they met with Mr Pryor on 24 March 2022. They informed Mr Pryor that they wanted to take protected industrial action. Mr Pryor discussed with the members the types of industrial action they wanted to take. He then prepared a draft application for protected action ballot orders and sent it to the RTBU’s legal team for review. On 25 March 2022, Mr Pryor was absent from work at a funeral and did not read any work emails. When he returned to work on Monday, 28 March 2022, he read an email from Mr Pager sent on 25 March 2022, which was not copied to the other employee bargaining representatives, in which Mr Pager advised that it was RSS’s “intention to have the draft proposed EA to the RTBU by COB Monday, 28 March 2022”.[14] Mr Pryor conveyed, on 28 March 2022, the content of Mr Pager’s email of 25 March 2022 to some RSS employees including other bargaining representatives. The “newsflash” article was also published on 28 March 2022. At about 3:49pm on 28 March 2022, Mr Pryor received RSS’s draft proposed enterprise agreement. A short time later, at 4:18pm, the RTBU filed and served its application for good faith bargaining orders.
In light of the contextual matters to which I have referred in the previous paragraph, I do not accept that the “newsflash” article was misleading or evidenced an intention not to genuinely try to reach an agreement with RSS. In circumstances where RSS had repeatedly failed to meet the timeframes communicated to the RTBU for the provision of information in March 2022 and Mr Pager had not given more than an indication of an “intention” to provide the draft proposed enterprise agreement by the close of business on Monday, 28 March 2022, I do not consider that it was misleading of Mr Pryor not to inform RTBU members of RSS’s stated intention in this regard or the content of Mr Pager’s email of 25 March 2022.
Mr Pryor could have waited until after the close of business on 28 March 2022 to file the application for good faith bargaining orders. However, his decision not to do so, particularly after having recently received feedback from members that they were frustrated by the delays and wanted to pursue protected industrial action, does not, in my view, indicate or demonstrate that neither he nor the RTBU did not want to genuinely try to reach agreement with RSS. Mr Pryor’s actions in arranging for the application to be filed on 28 March 2022 are consistent with the information he had received from bargaining representatives that they wished “to pursue orders for protected industrial action to show that they were serious about their claims and to assist in a speedy resolution to bargaining”.[15]
I do not give much weight to the fact that RSS provided its draft enterprise agreement to Mr Pryor about half an hour before the RTBU filed its application for protected action ballot orders in the Commission on 28 March 2022. Approvals have to be given within organisations such as the RTBU before an application such as one for protected action ballot orders is lodged in the Commission. The process of preparing and seeking approval for the application for protected action ballot orders was obviously in place prior to the application being lodged in the Commission. It is unsurprising that, after about 11 months of bargaining, receipt of a draft enterprise agreement from RSS on the afternoon that an application for protected action ballot orders was to be lodged in the Commission did not cause the RTBU to alter its plan to pursue the application.
RSS’s argument, in reliance on Justice Flick’s decision in JJ Richards v Fair Work Australia,[16] that 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 has force in circumstances where no offer or proposal has been made by a bargaining party. But where, as is the case here, bargaining has been going on for about 11 months and many proposals have been made by each party, I do not accept that the decision by the RTBU to lodge its application for protected action ballot orders in the Commission before considering RSS’s latest bargaining offer indicates or demonstrates that it was not genuinely trying to reach agreement with RSS.
Although the RTBU had the option of asking for the related bargaining dispute to be brought back before the Commission, pursuant to the statement issued by my Associate on 3 March 2022, that was simply one option available to it. Previous conferences in those proceedings resulted in some agreement on particular matters and a narrowing of differences on other matters, but the parties are still well apart on significant issues such as pay rates. Having regard to those circumstances and the length of time for which bargaining has taken place, it is logical and rational for the RTBU and its members to decide, at this time, to pursue protected industrial action as a means of placing industrial pressure on RSS and seeking to finalise the negotiation of an enterprise agreement. These matters weigh in support of the RTBU’s contention that it has been, and is, genuinely trying to reach agreement with RSS.
I do not accept RSS’s contention that the RTBU’s true motivation is to apply pressure to RSS and Pacific National in pursuit of its organisational ideological goal which is limiting the use of labour hire service arrangements within the rail industry in New South Wales. I accept that the RTBU is using Pacific National enterprise agreements as comparators when assessing the offers and proposals made by RSS. This is understandable in circumstances where Pacific National has effectively outsourced the Services to RSS and the work is being undertaken on Pacific National’s trains for Pacific National’s clients. The RTBU’s conduct in bargaining, when examined in its entirety, including its participation in 20 bargaining meetings, consideration of offers made by RSS, formulation and communication of proposals to RSS, and compromises on various matters in bargaining, demonstrates to my satisfaction that it does not have the motivation for which RSS contends.
On the basis of the evidence given by Mr Pryor, I am satisfied that the RTBU was genuinely trying to reach an agreement with RSS in the period from the conclusion of his meeting with members on 24 March 2022 to 1 April 2022, being the disputed period for which RSS contends.
For the reasons given, I am satisfied that the RTBU has been, and is, genuinely trying to reach an agreement with RSS.
Do the ballot questions relate to action which is not capable of being industrial action?
Section 437(3) of the Act requires an application for protected action ballot orders to specify the “questions or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action”. It follows, so RSS contends, that an application for a protected action ballot order can only relate to action which is industrial action within the meaning of s 19 of the Act. In my opinion, that is not quite right. As the Full Bench observed in Mornington Peninsula Shire Council v ASU,[17] “action that is capable of being industrial action will be permitted to be included in questions directed to employees who are to be balloted”. The Full Bench made this observation immediately after referring to the following part of Justice Tracy’s reasoning in Ambulance Victoria v United Voice:[18]
“Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.”
Section 19 of the Act provides:
19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note:In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note:In this section, employee and employer have their ordinary meanings (see section 11).
RSS accepts that the expression “performance of work” in s 19 is not restricted to how the tasks associated with a particular job are performed and can include when work is performed, where work is performed, how work is performed, and the conditions under which work is performed.[19]
RSS contends that none of the action proposed by question 3 meets the definition of industrial action in s 19 because such action does not relate to the performance of work. I do not accept this contention. Question 3 refers to “changes to the way that work is performed” in four particular ways. If an employee takes any of the action referred to in paragraphs (a) to (d) of question 3, the employee will most likely delay the performance of work they would ordinarily be undertaking for RSS at that time. In my opinion, such action is clearly capable of involving “the performance of work by an employee in a manner different from that it which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is … a delay in the performance of the work” within the meaning of s 19(1)(a) of the Act.
RSS also contends that the action referred to in question 2(a) does not fall within the definition of industrial action within the meaning of s 19 of the Act. I disagree. Question 2(a) relates to bans on operating particular trains, namely trains that contain specified containers. Such conduct is plainly “a ban … on the performance of work by an employee” within the meaning of s 19(1)(b) of the Act.
I am satisfied that the action referred to in questions 1, 2 and 3 of the order proposed by the RTBU is capable of being industrial action within the meaning of s 19 of the Act.
Clarity of questions in the proposed ballot
Section 437(3) of the Act requires an application for protected action ballot orders to specify the “questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action” [emphasis added]. As Justice Tracy observed in Ambulance Victoria v United Voice, “the terms in which the proposed action is described for the purposes of the ballot may lack legal precision”.[20] Once a ballot has been conducted and the nature of the industrial action has been approved, if a bargaining representative gives notice of the action that will be taken by employees, “greater clarity about the context and manner in which employees will take industrial action will doubtless be apparent and so greater clarity in describing the action to be taken will be required.”[21] The notice of action provides the employer with time to prepare for the particular industrial action specified in the notice.
It is accepted that the questions which an applicant proposes to the employees to be balloted must be expressed with sufficient clarity so that the employees can make an informed choice on whether to authorise the action in question.[22]
The first criticism RSS makes of the questions posed in the RTBU’s draft order concerns the chapeau to the questions. It provides:
“In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by RTBU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the action set out below:”
RSS submits that protected industrial action can only be taken by employees of RSS who are members of the RTBU. However, RSS contends that the questions are not posed in this way. The questions seek the endorsement for RTBU members to take protected industrial action against RSS. It is submitted that the operation of the shuttle service run by RSS results in many members of the RTBU performing work in connection with RSS’s operations, but some of those RTBU members may not be employees of RSS.
I reject this criticism of the proposed questions. Paragraph [6] of the order proposed by the RTBU seeks to ask Employees of RSS who are members of the RTBU and who will be covered by the proposed enterprise agreement whether they “endorse the taking of protected industrial action by RTBU members against” RSS for the purpose of “reaching an enterprise agreement with” RSS. Although the chapeau to the questions does not specifically state that the industrial action which the Employees may support is action by employees of RSS, not RTBU members who are not employed by RSS, it is sufficiently clear when the order is read as a whole and in the context of 20 bargaining meetings over an 11month period that the action proposed in the questions is action by employees of RSS. I do not have any real doubt that the Employees would understand the questions in that way.
RSS contends that all three of the questions posed in the RTBU’s proposed order are not framed in a manner which could enable the Employees to make an informed choice on whether to authorise the action in question. It is submitted that the questions are not capable of being understood without further explanation or information.
RSS submits that question 1 is imprecise, as it does not specify the length of time for which the stoppage may occur, but instead is expressed as a vague concept of indefinite periods of stoppages for indefinite hours in duration.
As to question 2(a), RSS submits that the trains at the St Mary’s depot carry containers that vary between 40 to 60 feet in length, are varying in colour, the content of the containers are unknown, and the nature of the size or contents of a container do not impact the performance of work by an RSS employee. As such, it is contended that the lack of specificity in these circumstances does not provide the Employees with the ability to make an informed decision about the proposed action. With respect to question 2(b), RSS submits that the standard train length operating out of the St Mary’s depot is 600 metres but it can be shorter in length for operational purposes and the absence of specifying a defined length of train within the ballot question does not enable an Employee to understand the impact of accepting the proposed ban on the performance of their work.
RSS further submits that question 2 is phrased in a manner which does not seek a specific answer to each form of industrial action which when joined with the uncertainty from parts 2(a) and (b) result in Employees not being able to form a clear understanding of the implications for them while at work of the work that should not be undertaken and what work would remain to be performed. In particular, it is contended that the work performed by Employees is not delineated by the specification of particular containers and different roles are impacted in different ways by the length of a train service which is run and therefore the failure to specify the length of a train at the time of the ballot does not enable the Employee the opportunity to understand the implications of the decision on their employment.
I do not accept these criticisms of the questions posed in the RTBU’s draft order. In my opinion, the questions describe the nature of the proposed industrial action and are framed in such a way that the Employees will be able to make an informed choice on whether to authorise the action in question. Question 1 asks whether Employees wish to authorise the taking of protected industrial action in the form of stoppages of work of between 1 minute and 24 hours in duration. The question also makes clear that there may be an unlimited number of such stoppages. Any Employee reading this question would, in my view, appreciate that taking an unlimited number of stoppages of up to 24 hours in length could result in protected industrial action being taken for multiple days.
Question 2(a) refers to bans on operating trains. There could be no doubt in an Employee’s mind as to what a ban in operating a train involves. As to the particular trains which may be the subject of the ban, the question directs attention to trains containing “specified containers”. The evidence makes clear that containers can be differentiated by length, colour and brand. For example, if the ballot is approved, notice may be given that a ban is to be imposed on operating trains containing red containers or containers which are 60 feet in length. This would be clear to any Employee reading the question, and would leave the Employee in no doubt as to what they may be asked to do if notice of such action is given in the future. RSS’s contentions that (a) Employees may be concerned about being asked to impose a ban on operating a train with containers carrying particular goods or items, which would require the employee to open the containers in circumstances where they are prohibited by law from doing so, and (b) RSS does not determine or have any control over which containers are loaded onto the wagons, are not relevant to my determination of the application for protected action ballot orders. The issues which arise under s 437(3)(b) of the Act are whether the questions to be put to employees include the nature of the proposed industrial action and whether the questions are expressed with sufficient clarity so that the employees can make an informed choice on whether to authorise the action in question. Speculating that Employees could be asked, at some later time once notice of industrial action is given, to engage in an unlawful activity such as opening containers on trains does not bear on the questions I need to determine in this application. Nor does the fact that RSS has no control over which containers are loaded onto the wagons to be transported from the port to St Mary’s. I am satisfied that question 2(a) includes the nature of the proposed industrial action and is expressed with sufficient clarity so that the Employees can make an informed choice on whether to authorise the action in question.
Like question 2(a), question 2(b) also relates to the imposition of bans on operating trains. It identifies the trains that may be subject to such action by reference to the length of the train. Employees are aware of the length of the train they drive by reason of information in the “train consist” or the number of wagons being carried by the locomotive. In the context of the present application, it is not significant or determinative that an Employee may not be able to understand the full extent of the potential impact of the action described in question 2 on the basis that the employee does not know, at the time of the ballot, details such as the precise length of the trains or the characteristics of containers on trains that they may in the future be asked to impose a ban on operating. In my opinion, it is clear that question 2(b), like 2(a), includes the nature of the proposed industrial action and is expressed with sufficient clarity so that the employees can make an informed choice on whether to authorise the action in question.
As to RSS’s criticism that question 2 is phrased in a manner which does not seek a specific answer to each form of industrial action, there is no requirement that each question in paragraphs (a) to (f) of question 2 be asked separately in a protected action ballot. Whether or not that is done is a matter for the RTBU,[23] provided that the questions include the nature of the proposed industrial action and are expressed with sufficient clarity so that the employees can make an informed choice on whether to authorise the action in question.
Conclusion
I am satisfied that the RTBU has made an application under s 437 for a protected action ballot order. I am also satisfied that the other statutory requirements for a protected action ballot order have been met. It follows that a protected action ballot order must be made pursuant to s 443(1) of the Act.
The order [PR740216] will be issued concurrently with this decision.
DEPUTY PRESIDENT
Appearances:
Mr P Matthews, for the Applicant
Mr M Rawlings, for the Respondent
Hearing details:
2022.
Newcastle (by videoconference)
April 7.
[1] [2012] FCAFC 53
[2] [2009] FWAFB 368
[3] [2015] FWCFB 210
[4] Esso Australia Pty Ltd v AMWU & Ors[2015] FWCFB 210 at [57] & [69]
[5] Ibid at [55]
[6] Ibid at [35]
[7] AMWU v HJ Heinz Company Australia Ltd[2009] FWA 322 at [20]
[8] Coles Supermarkets (Australia) Pty Ltd v AMEIU[2015] FWCFB 379 at [45] & [49]; AMWU v HJ Heinz Company Australia Ltd[2009] FWA 322 at [54]
[9] Coles Supermarkets (Australia) Pty Ltd v AMEIU[2015] FWCFB 379 at [45] & [49]
[10] Ibid
[11] JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 218 IR 454 at [58]
[12] Ex R2 at annexure F
[13] Ibid
[14] Ex R2 at annexure G
[15] Ex A2 at [19]
[16] (2012) 218 IR 454 at [58]-[59]
[17] [2017] FWCFB 4740 at [46]
[18] [2014] FCA 1119 at [18]
[19] Re Mornington Peninsular Shire Council[2011] FWCFB 4809 at [25]
[20] at [18]
[21] Mornington Peninsula Shire Council v ASU [2017] FWCFB 4740 at [44]
[22] NUW v Fresh Exchange Pty Ltd[2009] FWA 221 at [10]
[23] ASU v Maribyrnong City Council[2013] FWC 6646 at [8]
Printed by authority of the Commonwealth Government Printer
< PR740215>
1
8
0