Australian Rail, Tram and Bus Industry Union v Transdev Sydney Pty Ltd, Great River City Light Rail Pty Ltd
[2024] FWC 2446
•9 SEPTEMBER 2024
| [2024] FWC 2446 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Rail, Tram and Bus Industry Union
v
Transdev Sydney Pty Ltd, Great River City Light Rail Pty Ltd
(B2024/1160)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 9 SEPTEMBER 2024 |
Proposed protected action ballot of employees of Transdev Sydney Pty Ltd and Great River City Light Rail Pty Ltd
This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU or Applicant) made under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Transdev Sydney Pty Ltd (Transdev) and Great River City Light Rail Pty Ltd (Great River) (together the Employers).
On 5 September 2024, the Commission was advised that the Employers objected to the application.
On 5 September 2024, I listed the matter for hearing on 6 September 2024 and directed the parties to file any further materials they wished to rely upon on the morning of the hearing.
At the hearing, the RTBU relied upon the declaration of Mr Peter Grech, President, Tram and Bus Division dated 4 September 2024 and email correspondence that had been exchanged between Mr Grech and Ms Bronwyn Cox during the period from 30 August 2024 to 4 September 2024. The Employers relied upon a witness statement of Mr Ashley Dean, Head of Employee Relations Transdev Australasia Pty Ltd dated 6 September 2024 and a written outline of submissions. Both parties made oral submissions at the conclusion of the evidence.
Background
The history of bargaining between the parties is largely uncontested. Transdev employs employees to operate light rail services across three passenger routes in Sydney (the L1 Dulwich Hill Line, the L2 Randwick Line and the L3 Kingsford Line) (Sydney Light Rail). Great River has been awarded the contract to supply, operate and maintain Stage One of the new Parramatta Light Rail, known as the L4 Westmead & Carlingford Line (Parramatta Light Rail). First passenger services on the line are due to start in 2024.
Transdev and Great River each employ employees to work in operational roles, including in the classifications of Driver, Customer Service Officer, Authorised Officer, Controller and Trainer (Operational Employees). Operational Employees of Transdev are employed to work on Sydney Light Rail and Operational Employees of Great River are employed to work on Parramatta Light Rail.
On 30 and 31 May 2023, Transdev and Great River issued a single Notice of Employee
Representational Rights (NERR) in relation to the proposed Transdev Sydney & Parramatta Light Rail Operations Enterprise Agreement 2023 (Proposed Agreement). The RTBU is a bargaining representative in relation to the Proposed Agreement.
Employees of Transdev who would be covered by the Proposed Agreement are currently
covered by one of the following enterprise agreements:
(a) Transdev Sydney Pty Ltd (Inner West Light Rail) – Enterprise Agreement 2021, which nominally expired on 31 October 2023; and
(b) Transdev Sydney Light Rail Operations Enterprise Agreement 2019, which nominally expired on 31 October 2023.
Employees of Great River who would be covered by the Proposed Agreement are not currently covered by an enterprise agreement.
Ten bargaining meetings for the Proposed Agreement took place between September 2023 and 4 April 2024. Each of these bargaining meetings concerned negotiations for a single enterprise agreement to cover both Transdev and Great River. During the course of these meetings, the Employers made offers on three separate occasions which were rejected by the RTBU.
On 6 May 2024, the RTBU filed an application for a Protected Action Ballot Order (PABO) in respect of Transdev only. On 8 May 2024, the PABO was made in relation to Transdev only. The ballot results were declared on 17 May 2024.
On 15 May 2024, a compulsory PABO conciliation conference was listed before Deputy President Cross. At the compulsory conference, the parties agreed to enter into an intensive negotiation period. At a bargaining meeting on 23 May 2024, the Employers presented their fourth offer which was rejected by the RTBU and the individual bargaining representatives.
RTBU members commenced industrial action on 28 May 2024. At a bargaining meeting which took place on that day, the bargaining representatives reached an in-principle agreement on the bargaining matters that remained in dispute and on the key terms in relation to a Proposed Agreement. Consequently, the RTBU also agreed to suspend and withdraw all currently notified industrial actions.
At a meeting on 4 June 2024, Mr Grech informed Mr Dean that the RTBU had held a mass meeting with their members who would not accept the terms of the In-Principle Agreement. At this meeting, the RTBU put forward an offer mirroring the In-Principle Agreement, with a number of improvements and additions. The Employers rejected the RTBU’s offer.
RTBU members commenced industrial action on 11 June 2024. On the same day, the Employers filed applications for bargaining orders and an order suspending industrial action. The parties participated in a conciliation conference held by the Commission in respect of both the suspension of industrial action (B2024/747) and bargaining orders (B2024/748) applications. During this conference, the Employers elected not to proceed with both applications and opted to return to the bargaining table to determine if further progress could be made towards reaching an agreement. Industrial action continued to take place throughout June and July 2024.
On 22 June 2024 the Employers requested employees to vote in relation to the Proposed Agreement which reflected the In-Principle Agreement. A majority of employees voted not to approve the Proposed Agreement.
On 26 July 2024, the parties participated in a section 240 conference before Deputy President Cross. No further progress was made towards resolving the outstanding bargaining issues. On 30 July 2024, the Employers made a further offer by email. The Employers advised that if this offer was not supported by the RTBU and Employee Bargaining Representatives or they did not receive a response from the RTBU and Employee Bargaining Representatives about the offer, they would make an application for an Intractable Bargaining Declaration (IBD).
On 1 August 2024, Mr Grech provided a response to the 30 July 2024 email which relevantly provided:
The RTBU Bargaining Representatives believe this offer is without substance because a) the offer is worse than what was previously offered and b) there is no associated draft document for us to view.
The Employer/Employers have previously put an Enterprise Agreement to members for a Vote that contained alterations that differed from the Enterprise Agreement document
presented to Bargaining Representatives.For this reason the RTBU Bargaining Representatives expect all documentation prior to adjudication of this offer to be put forward for review. The letter of offer also presents a new commencement date of which has never been communicated.
Moreover, in your letter you have only identified 3 main issues that are outstanding – the quantum of wage increases, the timing of re-grading of employees and the quantum of paid personal/carer’s leave. You clearly have underappreciated the 2 additional and significant outstanding items from the RTBU’s perspective which are the drafting of network officers into the proposed agreement and the underpayment for L1 operators. With this in mind, we believe it is prudent to continue bargaining in a productive manner, rather than giving the RTBU an ultimatum in an extremely tight and procedurally unfair deadline.
On 1 August 2024, Ms Bronwyn Cox, People & Culture, Transdev Australasia, responded to Mr Grech and offered to provide the RTBU with a draft proposed agreement to consider if the RTBU withheld issuing further notices of industrial action until 5pm on 5 August 2024. Ms Cox advised that in the absence of such an assurance being provided by close of business that day, the Employers would proceed with the filing of an intractable bargaining declaration application. The RTBU did not respond to this offer.
On 2 August 2024, the Employers lodged an IBD application.
Between 1 August 2024 and 29 August 2024, the Employers did not hear from the RTBU in relation to the further offer or bargaining for the Proposed Agreement.
On 16 August 2024 the RTBU lodged an application for a single interest employer authorisation covering the Employers, Sydney Trains and NSW Trainlink (the SIEA application).
On 30 August 2024, Mr Grech wrote to the Employers stating that the RTBU ‘believes that the parties can actually reach agreement on a replacement enterprise agreement and has proposals to resolve the existing major points of contention, being quantum of pay rises and sick leave entitlements’. Mr Grech requested a bargaining meeting to discuss outstanding claims and a way forward. On 2 September 2024, Transdev and Great River responded to Mr Grech requesting clarification of his email, particularly in light of the SIEA Application.
On 4 September 2024, Mr Grech sent an email to Ms Cox in the following terms:
Dear Bronwyn,
Thank you for your email and chronology. I don’t propose to answer all the questions in your email, as they are more appropriately discussed in the context of a further bargaining meeting with all bargaining representatives present, but I will provide responses that are appropriately discussed via written correspondence.
Firstly, I would take the opportunity to remind you that bargaining for a proposed enterprise agreement includes matters of scope. Framing bargaining as exclusively for a ‘Proposed Single-Enterprise Agreement’ suggests that you are unwilling to and have not genuinely considered alternative scope claims that step outside that constraint. It is not possible to say that a bargain is intractable without exploring all significant claims and, if rejecting them, providing reasons that the other parties to the bargain can understand.
In any case, our proposals to progress bargaining are agnostic as to scope. Whilst a majority of employees support seeking a SIEA and as such our scope claim is maintained, we are not opposed to further ballots of relevant employees for approval of a single enterprise agreement and may be swayed from our current bargaining position and scope claim in circumstances where other claims have been resolved suitably. In that context it is curious that, despite our clear insistence that we have further proposals to discuss touching key claims, Transdev has not discussed them to date and is willing to maintain that the bargain is at an impasse without even hearing those proposals.
On a without prejudice basis until it can be discussed more fulsomely in a bargaining meeting and in the spirit of trying to compromise to move bargaining along, our proposal is to accede to Transdev’s proposals on the quantum of pay-rises and sick-leave entitlements and to re-jig the way penalties and allowances are paid with respect to the base rates in the agreement.
Whilst this week has slipped away from us, I remain hopeful we can schedule a bargaining meeting for next week to discuss our proposal.
I look forward to your prompt response to this correspondence.
Thanks
Peter Grech
At 9:12am on 6 September 2024 (which was the morning of the hearing), Ms Cox responded to Mr Grech’s email. The email relevantly provided:
Based on your email below, it’s entirely unclear whether the RTBU is bargaining in relation to the Proposed Agreement, or is seeking a multi-enterprise agreement. We ask that you confirm the RTBU’s position as soon as possible.
RTBU Proposals
In the event that you confirm that the RTBU is seeking to bargain in relation to the Proposed Agreement, we understand your email below to mean that the RTBU is prepared to accept the most recent offer put by Transdev Sydney and GRCLR on 30 July 2024, including in relation to wage increases and paid personal/carer’s leave, subject only to “re-jigging the way penalties and allowances are paid with respect to the base rates in the agreement”. For the avoidance of doubt, that offer is as follows:
• Wages:
o Year 1 (effective from first full pay period on or after commencement of the EA): 6% (8% L1)
o Year 2: 4%
o Year 3: 4%
o Year 4: 4%
• Rostering improvements as agreed in recent bargaining (and on this basis, there will be no
increase to paid personal/carer’s leave).o Previously the company could change shifts without agreement as long as at least 48 hours' notice was provided. This has been increased to 72 hours to provide better certainty to shifts creating a better work/life balance
o Company to provide notification of any changes to shifts changes to shifts commencing within 14 days
o Weekly overtime and shift penalties now become cumulative, meaning employees can access the full value of overtime.
o Any worked performed on a rostered day off to be paid as overtime, removed the need to reach the weekly overtime cap.
o When taking annual leave, employees will be paid as per their Master Roster (this is currently working roster) allowing for greater certainty of how much pay they will receive when taking leave
Please confirm our understanding is correct. If Transdev’s offer made on 30 July 2024 has not been accepted in full, please identify precisely which aspects of the offer identified above remain in dispute, so we can meaningfully consider the RTBU’s request to meet.
Regards
Bronwyn
Submissions
RTBU
The RTBU submissions proceeded on the assumption that the Employers were contending that it was not genuinely trying to reach agreement in relation to the Proposed Agreement since lodging the SIEA application on 16 August 2024. The RTBU characterised its SIEA application as a claim in relation to the scope of the Proposed Agreement. The RTBU submitted that although it had made a SIEA application, the four employers subject to that application may well be eligible to be covered by a single enterprise agreement because they are engaged in a common enterprise and that this is a question of law.
The RTBU relied upon decisions of Full Benches of this Commission in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia (Mermaid Marine),[1] The Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd[2] and The Maritime Union of Australia v Maersk Crewing Australia Pty Ltd (Maersk Crewing)[3]. The first two of these cases dealt with the meaning of ‘proposed enterprise agreement’ in s 437(1) of the FW Act in circumstances where the employer was bargaining for a proposed enterprise agreement for employees covered by two different enterprise agreements, only one of which had passed its nominal expiry date. In both cases, the Maritime Union of Australia, being a bargaining representative for the employees, sought to apply for a protected action ballot order for a proposed enterprise agreement covering only those employees covered by the enterprise agreement which had reached its nominal expiry date.
The Full Bench in Maersk Crewing provided the following useful summary of the cases and principles relevant to the contentions of the RTBU:
[15] Mermaid Marine and Skilled Offshore stand for the proposition that all that is required for there to be ‘a proposed enterprise agreement’ within the meaning of ss. 437(1) and 443(1) of the FW Act is an ‘agreement [which] the bargaining representative applying for an order under [s.437] is proposing at the time the application for a protected action ballot order is made’. Further, in MUA v Swire Pacific Ship Management (Australia) Pty Ltd (Swire) the Full Bench characterised a ‘proposed enterprise agreement’ as something that one of the parties wants to negotiate: ‘There need not be a developed draft, and it may simply be an idea or a series of claims…’ While Mermaid Marine, Skilled Offshore, and Swire were all decided before the commencement of s.437(2A), we are not persuaded that the introduction of s.437(2A) affects the reasoning in those cases in respect of this issue.
[16] We should also add that the decision in Mermaid Marine should not be taken as suggesting that an application under s. 437(1) of the FW Act may only be made in relation to an agreement proposed by a PABO applicant.[4]
… [footnotes omitted].
The RTBU submits that it is evident from its application that as it is only seeking to ballot employees of the Employers, the RTBU is seeking a protected action ballot in respect of the Proposed Agreement, being a single enterprise agreement. The RTBU pointed to Mr Grech’s email of 5 September 2024 in which he advised the Employers that ‘whilst a majority of employees support seeking a SIEA and as such our scope claim is maintained, we are not opposed to further ballots of relevant employees for approval of a single enterprise agreement’. The RTBU submitted that this establishes that it has been, and is, genuinely trying to reach an agreement with the Employers in relation to the Employers’ Proposed Agreement.
The Employers
The Employers submitted that the RTBU has mischaracterised their objection to the application. The Employers object to the application for two reasons related to their contention that the RTBU is now seeking to bargain for a single interest enterprise agreement. Firstly, the Employers say that the RTBU cannot file an application under s 437 because there is no ‘notification time’ (within the meaning of s 173(2)) as required by s 437(2A) of the FW Act, and there cannot be any ‘notification time’ until a ‘single interest employer authorisation in relation to the agreement that specifies the employer comes into operation’. Secondly, the Employers submitted that the RTBU is not ‘genuinely trying to reach an agreement’ within the meaning of s 443(1)(b) of the FW Act in respect of the Proposed Agreement. Rather, it is ‘genuinely trying’ to obtain a single interest employer authorisation so that it can bargain for a single interest employer agreement that will cover Sydney Trains, NSW Trains, the Employers and their employees.
The Employers submitted that there are two temporal components to the analysis for the purposes of s 443(1)(b) of the FW Act in that the bargaining representative must both ‘have been’ and ‘be’ genuinely trying to reach agreement.
The Employers submitted that the RTBU must not simply be trying to reach agreement but must be genuinely trying to do so. Equally, the RTBU must not simply be trying (or genuinely trying) to advance or pursue bargaining (through preparatory steps or otherwise), but the trying must be directed towards the ultimate goal of “reach[ing] agreement”.
The Employers contended that the ‘agreement’ referred to in s 443(1)(b), that the bargaining representative must be ‘genuinely trying’ to reach, is an enterprise agreement that is capable of meeting the relevant approval requirements in the FW Act. However, if the agreement for which employees and the RTBU are bargaining for cannot be made, then it cannot be an agreement capable of meeting the approval requirements of the FW Act.
The Employers submitted that once it is accepted that the RTBU’s intention is, and has been since on or about 16 August 2024, to negotiate a single interest employer agreement that will cover Sydney Trains, NSW Trains, and the Employers, then the PABO Application must fail because it is made in pursuit of an agreement for which there has been no “notification time” within the meaning of s 173(2) and the Commission cannot be satisfied that the RTBU is genuinely trying to reach agreement.
The Employers submitted that in relation to the RTBU’s submission that the RTBU was genuinely trying to reach agreement in relation to either the Employers’ proposed agreement or the proposed agreement subject to the SIEA, the statutory language contemplates a single agreement. It does not contemplate an ability for a bargaining representative to have dual purposes in genuinely trying to reach an agreement. The Commission could not find that the legislature had intended to allow a party to obtain an immunity from suit in respect of conduct that would otherwise be tortious in circumstances where the purpose of the application was not directed solely to the pursuit of a singular agreement.
Consideration
The matters which are in dispute between the parties are whether the the Commission can be satisfied, as required by s 443(1)(b), that the RTBU has been, and is, genuinely trying to reach an agreement with the Employers and whether there has been a notification time in relation to the proposed enterprise agreement as required by s. 437(2A).
Section 437 of the FW Act provides,
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a cooperative workplace agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and
(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
Section 443 of the FW Act 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;
(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.
In Total Marine Services Pty Ltd v Maritime Union of Australia,[5] 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.
….In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Ors,[6] the Full Bench reviewed the authorities in relation to s.443(1)(b) and made the following observations:
[57] 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. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad) (citations omitted)
I now turn to consider the parties’ submissions. I deal first with the RTBU’s submission that the SIEA application is effectively a claim in relation to scope. I do not accept this submission. There is no evidence that during the twelve months that the RTBU regularly met with the Employers that the RTBU advised that one of its claims was that the scope of the Proposed Agreement should be in relation to the Employers, Sydney Trains and NSW Trainslink and their employees. Further there is no evidence that the RTBU has ever advised the Employers prior to lodging the current application that as an alternative to its SIEA application, it is claiming that all four entities and their employees are related employers within the meaning of s 172(5A) of the FW Act and could be covered by a single enterprise agreement.
It follows that I find the contest between the parties is not whether the RTBU is at liberty to apply for a PABO in support of the Employers’ proposed scope or the RTBU’s proposed scope. Rather, the matter to be determined is, as characterised by the Employers, whether the RTBU’s intention is, and has been since on or about 16 August 2024, to negotiate a single interest employer agreement and if so, whether the application is made in pursuit of an agreement for which there has been no ‘notification time’ and which does not meet the requirements of the FW Act.
Amendments to the FW Act made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) which intended ‘to make it easier to obtain a single-interest authorisation’[7] commenced on 6 June 2023. These provisions are described in detail by the Full Bench in Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal & Ors.[8]
In that matter, the Full Bench observed that it was required to consider the following criteria in determining whether the Authorisation should be made in relation to the application before it:
whether a valid application has been made;
whether at least some of the SIEA employees are represented by an employee organisation;
whether the parties have had the opportunity to express their views;
whether, given the absence of consent, each of the Respondent Employers employed at least 20 employees at the time that the application was made;
whether any Respondent Employer has made an application for a single interest employer authorisation that has not yet been decided in relation to the SIEA Employees;
whether a Respondent Employer is named in an existing single interest employer authorisation or supported bargaining authorisation in relation to the SIEA Employees;
whether a majority of the SIEA Employees who are employed by each Respondent Employer want to bargain for the proposed agreement;
whether s.249(1D), which concerns the existence of an ‘in-term’ enterprise agreement, applies to any of the Respondent Employers;
whether the requirements of s.249(3) have been met, that is, whether the Respondent Employers have clearly identifiable common interests; and whether it is not contrary to the public interest to make the Authorisation;
if s.249(3) has been met, whether the operations and business activities of the Respondent Employer are reasonably comparable with those of the other Respondent Employers;
whether the circumstances contemplated in ss.250(3) and (4) – which in general terms contemplate that an authorisation would not be made where bargaining is already underway for an enterprise agreement that would cover the same employees – apply; and
whether the proposed agreement covers employees in relation to general building and construction work, noting that if it does, the Authorisation cannot be made.[9]
Depending upon the response to the RTBU’s SIEA application from the other parties, most if not all of the above criteria will require determination in respect of that application.
Is the RTBU bargaining for a SIEA agreement?
The SIEA application made by the RTBU has not yet been listed for hearing. It is not known if the authorisation sought by the RTBU will be made as whether the application meets each of the relevant requirements of the FW Act are matters which are yet to be determined. It is also not known whether the SIEA application will be affected by the Employers’ IBD application. If the authorisation sought by the RTBU is made by the Commission, s 172(5)(b) prohibits the employers and employees covered by the authorisation from bargaining for a single enterprise agreement while the authorisation is in force, which is either for a minimum period of 12 months or earlier if the SIEA agreement is made before that time. However, there is no such restriction before an authorisation is made. In other words, employers and employees who are sought to be covered by a SIEA application are not prevented from making a single enterprise agreement before such an application is determined.
The effect of the legislative scheme is once the notification time commences under s 173(2) of the FW Act, bargaining for a proposed agreement remains on foot unless it is, in effect, concluded by an enterprise agreement being made then approved or by an order of the Commission. Such orders include a SIEA or an IBD. Consequently, the bargaining representatives for a proposed agreement continue to be required to meet the good faith bargaining requirements of s 228 of the FW Act which include the requirements to attend, and participate in, meetings at reasonable times, respond to proposals made by other bargaining representatives for the agreement in a timely manner, give genuine consideration to the proposals of other bargaining representatives for the agreement, and give reasons for the bargaining representative's responses to those proposals.
Having regard to these matters, the fact that the RTBU has made the SIEA application does not by itself establish that the RTBU is no longer bargaining for a single enterprise agreement and is now bargaining for a SIEA agreement. To establish whether this is the case, I must consider all of the evidence before me.
The evidence establishes that the bargaining representatives including the RTBU reached agreement in principle in May 2024 after twelve months of bargaining shortly after the commencement of protected industrial action. However, RTBU members did not accept the agreement in principle. The RTBU then put forward an offer mirroring the In-Principle Agreement, with a number of improvements and additions which was rejected by the Employers. The Employers asked employees to vote in relation to the In-Principle Agreement however it was rejected. The Employers then made a further offer on 30 July 2024 following a section 240 conference which was characterised by the RTBU as worse than what was previously offered. Three days later the Employers filed the IBD application. Two weeks later the RTBU filed the SIEA application.
The Employers noted that between 1 August 2024 and 29 August 2024, they did not hear from the RTBU in relation to their offer or bargaining for the Proposed Agreement. On one view this is hardly surprising given that the Employers advised the RTBU that unless the RTBU withheld issuing further notices of industrial action, the Employers would proceed with the filing of an IBD application. This suggests that the Employers were unlikely to make any further offers. At the time there was probably little to discuss given that the RTBU viewed the Employers’ current offer as worse than one which employees had voted against in June 2024.
During the hearing Mr Grech was cross-examined and agreed with the Employers’ counsel that up until 16 August 2024, RTBU members employed by the Employers wanted to bargain for a single enterprise agreement but that this changed on or about 16 August 2024 when they decided they wanted to bargain for an agreement which covered the Employers, Sydney Trains and NSW TrainLink. When pressed about this, Mr Grech said that the RTBU membership want a better deal than what is on the table at the moment and that he wanted to get the best deal possible for RTBU members. Mr Grech was taken to the email from Ms Cox dated 2 September 2024 in which she sought confirmation that the RTBU is seeking a meeting in relation to the Proposed Single-Enterprise Agreement. The following exchange then took place between Mr Grech and the Employers’ Counsel:
Mr Minucci: And you understood that to be a request for you to confirm whether the RTBU was bargaining for the agreement that it had been bargaining for previously or whether it wanted a single interest employer agreement covering Sydney Trains, NSW Trains, Transit Systems and Great River.
Mr Grech:As I've suggested, I don't care which one I get, I just need a bargain that Members will accept.
It appears that the RTBU had a change of heart on 30 August 2024 in relation to the Employers’ most recent offer when Mr Grech wrote to the Employers indicating that the RTBU thought that the parties could reach agreement on a replacement enterprise agreement, has proposals to resolve the existing major points of contention and requested a bargaining meeting the following week to discuss outstanding claims and a way forward. There is no suggestion by the Employers that Mr Grech was disingenuous in his communication on 30 August 2024. What is put by the Employers is that Mr Grech was seeking to reach agreement in relation to the single interest enterprise agreement not the Employers’ Proposed Agreement.
In my view, Mr Grech’s email to the Employers on 30 August 2024 shows that the RTBU wished to continue bargaining with the Employers and that it was prepared to revisit the position that it took in relation to the Employers’ most recent offer. An objective reading of the reference to ‘replacement agreement’ in that email could only sensibly refer to the single enterprise agreement which the Bargaining Representatives have been bargaining for since May 2023. It could not mean a SIEA agreement in circumstances where it is not known whether the RTBU and the employers named in the SIEA application will be permitted to bargain for such an agreement. Similarly, in Mr Grech’s further email to Ms Cox on 4 September 2024, he states that while a majority of employees support seeking a SIEA, the RTBU is not opposed to further ballots of employees for approval of a single enterprise agreement. The email goes on to explain what aspects of the Employers’ most recent proposal are acceptable and which aspects require further discussion and concludes by stating that Mr Grech ‘remain[s] hopeful we can schedule a bargaining meeting for next week to discuss our proposal’. The reference to ‘a bargaining meeting for next week’ could only mean bargaining for a single enterprise agreement as the SIEA application has not yet been considered by the Commission.
In this matter bargaining has not been concluded by the making of an enterprise agreement or by order of the Commission. Bargaining therefore continues and the bargaining representatives must observe the good faith bargaining requirements. The application before me was made after Ms Grech sought a bargaining meeting with the Employers which was consistent with the RTBU’s obligations under the good faith bargaining requirements. The Employers had not agreed to meet with the RTBU by the hearing date. I find that the timing of the application so soon after the RTBU requested a bargaining meeting with the Employers, the language used in Mr Grech’s emails and the RTBU’s intention to engage with the Employers’ offer made on 30 July 2024 (which was made in relation to a single enterprise agreement) establishes that the RTBU is continuing to bargain for the single enterprise agreement with the notification time of 31 May 2023 and that this is the ‘proposed enterprise agreement’ referred to in s 437 of the FW Act.
The RTBU’s position that it currently wishes to secure either a single enterprise agreement or a SIEA agreement is consistent with the FW Act. If the RTBU’s claim for a SIEA is made by the Commission in the form sought by the RTBU, it will not have a choice between these two options as it will not be able to make a single agreement with the Employer for a period of at least 12 months. However, unless and until that occurs, the RTBU is able to and in fact is required to continue bargaining for a single enterprise agreement. At its highest, the RTBU’s SIEA application does no more than establish that the RTBU intends to bargain for a SIEA agreement if the authorisation is granted. The evidence does not establish that the RTBU is currently bargaining for a SIEA agreement.
Whether the RTBU has been, and is, genuinely trying to reach an agreement with the Employers
I have had regard to evidence before me in relation to the totality of the RTBU’s conduct during bargaining in assessing whether the RTBU has been, and is, genuinely trying to reach an agreement with the employers of the employees who are to be balloted. This conduct includes attending ten bargaining meetings between September 2023 and 4 April 2024 and entering into a period of intensive negotiations from May 2024 which culminated in an agreement in principle. When members rejected the agreement in principle, the RTBU made a further offer. In my view, these events show that the RTBU was genuinely trying to reach agreement. If this was not the case, there would have been no agreement in principle reached and no attempt to salvage the agreement by making a further offer when members advised they did not support it. Negotiations paused at the point when the Employers formed the view, based on the RTBU’s rejection of their most recent offer, that there are no reasonable prospects of agreement being reached. The RTBU’s actions in filing the SIEA application need to be seen in this context. I do not believe that the SIEA shows that the RTBU is walking away from negotiations for a single enterprise agreement. I think that it is more likely that the RTBU has made the application with the aim of securing an improved offer in the event that the authorisation is made and a single enterprise agreement is not agreed between the parties in the meantime, based on Mr Grech’s evidence that ‘I don't care which one I get, I just need a bargain that Members will accept.’
The conduct of the RTBU which commenced on 30 August 2024 in changing its position in relation to the Employers’ most recent offer, seeking a bargaining meeting with the Employers and explaining what is agreed and what is outstanding is a continuation of its conduct with respect to negotiating the proposed single agreement. I am satisfied that it demonstrates that the RTBU has been, and is, genuinely trying to reach an agreement with the employers of the employees who are to be balloted.
On the basis of the material before me, including the declaration of Mr Grech, I am also satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 23 September 2024.[10] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR779082.
This matter will be assigned to another Member of the Commission to conduct the s 448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
Appearances:
P. Matthews, RTBU Legal Officer, for the Applicant
M. Minucci, Counsel, for the Respondent
Hearing details:
2024
6 September
In person, Sydney and via MS Teams
[1] [2014] FWCFB 1317
[2] [2014] FWCFB 2587
[3] [2016] FWCFB 1894
[4] Ibid, [15]-[16]. ‘Skilled Offshore’ refers to Skilled Offshore Pty Ltd v AMWU and others[2015] FWCFB 7399.
[5] [2009] FWAFB 368; (2009) 189 IR 407
[6] [2015] FWCFB 210.
[7] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum (SJBP Revised EM) at [43].
[8] [2024] FWCFB 253, [20]-[31].
[9] Ibid, [57].
[10] This is, in effect, 10 calendar days from the making of the Order and was agreed to by the RTBU during the hearing.
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