Australian Workers' Union, The v Alcoa Portland Aluminium Pty Ltd T/A Portland Aluminium

[2018] FWC 1613

[2018] FWC 1613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Alcoa Portland Aluminium Pty Ltd T/A Portland Aluminium
(B2018/186)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 MARCH 2018

Proposed protected action ballot of employees of Alcoa Portland Aluminium Pty Ltd.

[1] On 16 March 2018, the Australian Workers’ Union (the AWU) applied for a protected action ballot order (the Application). In doing so, the AWU seeks an order that members of the AWU who are employed by Alcoa Portland Aluminium Pty Ltd T/A Portland Aluminium and currently covered by the Portland Aluminium (Operators) Enterprise Agreement 2014 and who have not appointed someone other than the AWU to be their bargaining representative, be balloted to see if they support the taking of protected industrial action.

[2] The Application was accompanied by a statutory declaration declared on 13 March 2018 by Mr Robert Saunders, an AWU Organiser.

[3] In the morning of 16 March 2018, correspondence was sent by the Fair Work Commission to Alcoa Portland Aluminium Pty Ltd T/A Portland Aluminium (Portland Aluminium) seeking advice as to whether it opposed the Application. A few hours later, Portland Aluminium advised it objected to “the actions listed” in the Application.

[4] The file was the allocated to my chambers and I caused a Notice of Listing to be dispatched, setting the matter down for a mention and/or directions by telephone at 5.30pm on 16 March 2018. Following this, I listed the Application for hearing at 1.00pm on Monday 19 March 2018.

[5] At the hearing, Mr Craig Winter attended for the AWU and Mr Tom Pethybridge and Mr Peter Chellis attended for Portland Aluminium.

[6] At the hearing, Portland Aluminium indicated it opposed the Application on the basis that the AWU has not and is not genuinely trying to reach agreement with it.

[7] Having heard from the parties and considered their submissions, at the end of the hearing I advised I would grant the order sought by the AWU, with some modification to the written notice required to be given for two forms of the proposed industrial action. This had been agreed between the parties. I now outline my reasons for granting the Order.

Has the AWU been and is it genuinely trying to reach agreement with Portland Aluminium?

[8] In the Form F34B Statutory declaration in support of an application for a protected action ballot order, Mr Saunders described and declared at question 2.1:

“1. It is my belief that the AWU has been, and is, genuinely trying to reach agreement with the respondent

2. A log of claims was served by the AWU upon Alcoa Portland Aluminium Pty Ltd

3. Negotiations for the EA commenced in April 2017 and have continued until present.

4. Over that period of time there have been around sixteen meetings with the Company, Delegates, and Organisers , In addition to the above meetings, the AWU has held a number of report back meetings with members and had ongoing discussions with the respondent.

5. I believe that the AWU has been genuinely bargaining to reach agreement and that the application by the AWU for a PAB is available to the AWU as a bargaining device.

6. The log of claims, representing the AWU’s bargaining position, clearly articulates the claims sought by the AWU as bargaining representatives for the employee group.

7. In addition to the meetings held, the AWU has disclosed all relevant information to the company and responded to the proposals of the company in a timely manner.

8. The AWU is willing and has already adjusted claims to accommodate the proposals put forward by the respondent as part of the aforementioned meetings and negotiations. The AWU is further willing to consider relinquishing claims put forward in the original log of claims.

9. The AWU has at all times refrained from any conduct or actions that could be deemed capricious or unfair conduct which undermines freedom of association or collective bargaining. In addition, none of the bargaining issues to date have included non-permitted matters, objectionable or unlawful terms.

10. I believe that there are no other extraneous purposes in seeking to conduct the PAB, other than genuinely trying to reach agreement.

11. I believe that the FWC will be satisfied given the meetings that have taken place, as well as they content of those meetings, that the AWU has genuinely and continues to genuinely try to reach agreement for a new EA with the company.

12. The AWU remains committed to genuinely trying to reach agreement.

13. The inevitable delay between the making of the PAB application and the actual right to take protected industrial action by the employee group must be taken into consideration, during which time further negotiations can take place. To that end, even if protected action occurs, the AWU will continue to genuinely try to reach agreement with the company.”

[9] Portland Aluminium submitted that the AWU has not been and is not genuinely trying to reach agreement because:

a) It has been pursuing and is maintaining a claim that Portland Aluminium will take all reasonable steps to encourage employees to become financial members of the AWU (Clause 18.2), which it says is a claim about a non-permitted matter; and

b) It has been pursuing and is maintaining the claim that “An official of the AWU may enter the employer’s premises at any time for any purpose connected to this Agreement, including assisting the AWU delegate to perform the duties listed above or attending consultation meetings but not for a purpose for which a right of Entry exists under Part 3-4 of the Fair Work Act” (Clause 18.8), which Portland Aluminium says is a claim about an unlawful matter.

Clause 18.2

[10] Portland Aluminium asserted the AWU is still pursuing this claim.

[11] Mr Winter stated that his understanding was that the AWU is not. Mr Winter also submitted that even if the AWU was still pursuing it, it is not necessarily the case that Clause 18.2 is a non- permitted matter.

[12] The Full Bench in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Esso) 1 stated:

“[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).

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

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

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

(my emphasis, references omitted)

[13] Whether the AWU ‘has been, and is, genuinely trying to reach an agreement’ must be decided by reference to all of the circumstances of the bargaining that has occurred with Portland Aluminium. The relevant circumstances also include the extent of the progress in the negotiations and the steps taken in order to try and reach agreement. 2

[14] Esso makes clear that if there is a scenario where an applicant is, or has been, pursuing a claim involving a non-permitted, this will be relevant to whether the test in s.443 is met, but is not determinative. Esso holds that a range of factual considerations may potentially be relevant in that context, including the claimant’s belief as to whether the claim is about a non-permitted matter or not, and whether there is legal clarity about the permitted status of the claim.

[15] Mr Saunders appears to hold the view that Clause 18.2 does not concern a non-permitted matter. 3 Portland Aluminium asserts it does.

[16] For my part and based on what was put on behalf of Portland Aluminium at the hearing, I am not persuaded that it can only be concluded that Clause 18.2 concerns a non-permitted matter. In this regard I note that in the Explanatory memorandum to the Fair Work Bill 2008, it was said in relation to proposed s.172(1)(b):

•  It permits terms in agreements that are about matters pertaining to the relationship between the employer and the employee organization that will be covered by the agreement’

•  The term needs to relate to the employee organisation’s legitimate role in representing the employees to be covered by the agreement; and

•  Examples of terms intended to fall within the scope of permitted matters for the purpose of paragraph 172(1)(b) include terms that allow unions to promote membership and terms that require an employer to provide information about a union to an employee. 4

[17] In these circumstances, I do not consider the pursuit of Clause 18.2 poses an impediment to a finding that the AWU has been and is genuinely trying to reach agreement with Portland Aluminium.

Clause 18.8

[18] Portland Aluminium asserted this claim is one in pursuit of an unlawful term, in the sense outlined in s.194(f) of the Act and this counts against a conclusion that the AWU has been and is genuinely trying to reach agreement. Mr Winter stated that his understanding was that the AWU is not pursuing Clause 18.8.

[19] Although Clause 18.8 is somewhat inelegantly phrased, I do not consider it to be an unlawful term. While it outlines some rights of entry, it is not a term that provides for an entitlement:

•  to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or

•  to enter premises to hold discussions of a kind referred to in section 484;

other than in accordance with Part 3-4 of the Act. 5

[20] As such, I do not consider the pursuit of Clause 18.8 poses an impediment to a finding that the AWU has been and is genuinely trying to reach agreement with Portland Aluminium.

[21] Having regard to the material before me and the submissions of the parties, I am satisfied the AWU has been and is genuinely trying to reach agreement with Portland Aluminium. 6 There have been 16 bargaining meetings and I accept the description Mr Saunders has given as to what has transpired so far, noting in particular his declaration that the AWU “is further willing to consider relinquishing claims put forward in the original log of claims.”7

[22] As to matters relating to s.443(1)(a) of the Act, I am satisfied that:

1. The AWU is a bargaining representative for the employees 8 and the restriction in s.437(2A) of the Act does not apply;

2. The Application specifies the group of employees to be balloted and the questions to be put to the employees; 9

3. Portland Aluminium and the AEC were copied into the correspondence which filed the Application in the Commission on 16 March 2018; 10 and

4. The nominal expiry date of the applicable agreement has passed. 11

Conclusion

[23] On the basis of the material before me and having regard to the submissions made by both parties at the hearing, I am satisfied the AWU has fulfilled the statutory prerequisites for a protected action ballot order, and accordingly, I must make a protected action ballot order. The Order 12 has been issued separately to this decision.

DEPUTY PRESIDENT

Appearances:

Mr C Winter on behalf of the Applicant.

Mr T Pethybridge on behalf of the Respondent.

Hearing details:

2018.

Melbourne:

March 19.

Printed by authority of the Commonwealth Government Printer

<PR601286>

 1   Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2015) 257 IR 5 at 69; [2015] FWCFB 210.

 2  Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 at [32].

 3   Form F34B at item 9 of question 2.1.

 4   Explanatory memorandum to the Fair Work Bill 2008, page 109 at clauses 675 and 676.

 5   Fair Work Act 2009 (Cth) s 194 (f).

 6   Ibid, s.443(1)(b).

 7   Form F34B at item 8 of question 2.1.

 8   Fair Work Act 2009 (Cth) s 437(1).

 9   Ibid, s 437(3).

 10   Ibid, s 440.

 11   Ibid, s 438(1).

 12   PR601287.