Australian Workers' Union v Grange Resources (Tasmania) Pty Ltd T/A Grange Resources
[2023] FWC 1699
•19 JULY 2023
| [2023] FWC 1699 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.459—Protected action
Australian Workers’ Union
v
Grange Resources (Tasmania) Pty Ltd T/A Grange Resources
(B2023/702)
| COMMISSIONER WILSON | MELBOURNE, 19 JULY 2023 |
Application to extend the 30-day period in relation to B2023/393
This matter concerns the declaration of the result of a protected action ballot (PR761533) held in matter B2023/393 and declared on 14 June 2023.
The Australian Workers’ Union (AWU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to extend the 30-day period in which industrial action is authorised by the relevant protected action ballot. The application made by the AWU contends that each of the relevant legislative requirements have been met and that the period should be extended.
The matter was initially dealt with by Deputy President Hampton as the Fair Work Commission’s National Practice Leader, Bargaining. Grange Resources (Tasmania) Pty Ltd (Grange Resources) initially objected to the making of such an order and so the matter was reassigned to me, with a conciliation on the matter being held the same day it was assigned, on Thursday 13 July 2023. As conciliation did not resolve the matter in dispute it was set down for hearing on Monday 17 July 2023, with directions for the filing of short particulars being given in order to allow the hearing to proceed efficiently and effectively.
On Monday 17 July 2023 and after Grange Resources advised its solicitor would not be available at the time notified for the hearing, the Commission offered the possibility of the matter being determined by me on the papers, which was agreed by both parties.
In its written short particulars Grange Resources advised that it “is prepared to consent to this application so long as FWC is satisfied the requirements of the FW Act have been complied with and whether given the current circumstances it is in the public interest to do so.”[1]
After consideration of all material before me and for the reasons set out below, I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.
BACKGROUND
The application relates to a protected action ballot ordered by the Fair Work Commission (the Commission) on 2 May 2023 by Deputy President Clancy in a matter involving the AWU and Grange Resources (Tasmania) Pty Ltd Trading As Grange Resources with matter number B2023/393.
There were four questions posed by the ballot, seeking authorisation of particular forms of proposed industrial action. The industrial action included separate, concurrent and/or consecutive stoppages of the performance of work for periods ranging between 60 minutes and two full shifts. The result of the ballot was declared on 14 June 2023 with a majority of the relevant employees of Grange Resources approving the taking of various forms of industrial action.
The 30-day period starting on the declaration of results during which protected industrial action may be taken expired on 14 July 2023. The application was made on 12 July 2023, two days before the expiry of the first period.
STATUTORY FRAMEWORK
The AWU’s application is made pursuant to s.459 of the Act, which is in the following terms:
“459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30‑day period starting on the date of the declaration of the results of the ballot; or
(ii) if the FWC has extended that period under subsection (3)—during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.
(2) If:
(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and
(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).
(3) The FWC may extend the 30‑day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and
(b) the period has not previously been extended.”
CONSIDERATION
Grange Resources’ submissions
Grange Resources’ submissions may be summarised as involving the following five matters:
It was prepared to consent to the extension so long as the Commission is satisfied the requirements of the Act have been complied with and that granting the application is in the public interest.[2]
Bargaining with the AWU as well as the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has been going on for some time; with there reportedly having been 13 bargaining meetings over 8 months, with two conferences convened by Commissioner Lee. When it improved its offer to employees, it held the genuine belief that protected industrial action would at least be postponed as a consequence or alternatively that the Commission would have intervened to cause this to happen.[3]
The AWU and the CEPU may not have fully briefed those participating in protected industrial action on all the circumstances surrounding the matter, including Grange Resources’ improved offers.
The benefits of its offer to employees are such as to weigh against an extension of the period of protected industrial action. In particular, its offer is significantly better than other employers in the mining sector, in Tasmania and nationally. Grange Resources is not able to indefinitely keep on the negotiating table its current proposal that the increased wages commence from 1 January 2023. There is no apparent willingness on the part of the unions to postpone industrial action while the company’s most recent proposal is discussed. Further, regard should be had to the fact that the most recent proposal to employees will shortly be put to employees in a vote, and in the face of a “no campaign” to be run by the two unions.[4]
The application has been made somewhat late, with the AWU being aware it could have been made earlier but electing not to do so.[5]
Grange Resources also submitted that the Commission’s assistance should be brought to bear on the bargaining impasse, rather than granting the application for an extension of the 30-day period. In this regard it submitted:
“10. We respectfully seek the assistance of FWC to endeavour to facilitate a solution and:
• Delay to PIA until the vote is returned.
• Neutral stance from the Union to allow the vote to proceed.
• See the Union consider and provide an updated position based on our most recent offer.”[6]
AWU submissions
The AWU submitted the application could be granted having regard to the statutory criteria within s.459(3); it was an applicant for the Protected Action Ballot Order granted by Deputy President Clancy, which meets the first requirement in s.459(3)(a) and the 30-day period had not previously been extended, which meets the second requirement in s.459(3)(b). The AWU also submitted that Grange Resources had not explicitly contested that these requirements had not been met.
In relation to the submission by Grange Resources that further assistance may be sought from the Commission rather than granting the application, the AWU submitted that neither the Act nor the Explanatory Memorandum to the Bill that preceded it supported such an approach.
Statutory Framework and whether discretion should be exercised
The statutory criteria for an extension to the 30-day period are set out above, involving the two matters of whether an applicant is entitled to make the application, and whether the 30-day period has not previously been extended.
There is no question that the AWU is a relevant applicant for the purposes of s.459(3)(a) and that the 30-day period has not previously been extended. The statutory criteria are thus met. Grange Resources’ objections go to the question of whether the application should be granted, rather than the threshold questions of whether it may be granted.
The Commission’s determination of the AWU’s application involves a matter of discretion. The time limits provided for within s.459 have been said to not be a time-limit for commencement of the industrial action but a time-limit for the completion of industrial action, with the bargaining period providing the limit.[7] The Full Court has also made the following observations about the operation of s.459 and the considerations which may be applied to the section by the Commission:
“[15] … Accordingly, an authorisation for the taking of prospective and particular industrial action not acted upon by the employees within 30 days of the declaration of the result of the ballot, is rendered ineffective by s 459(1)(d) unless the 30 day period has been extended by the Commission under s 459(3). By that means a temporal limitation is placed on the authorisation given by employees through the ballot, so as to address the possibility that the will of the majority of employees to take particular industrial action may have evaporated prior to that industrial action taking place.
[16] Once that purpose is recognised, the object of the function given to the Commission to extend the period of the temporal limitation becomes apparent. As the Full Bench correctly observed at [20]-[21], in many cases it will be plain that majority employee support for the taking of particular industrial action has continued beyond the 30 day period. In those circumstances, the Commission’s discretion to extend the initial period by up to a further 30 days could sensibly be utilised to avoid the cost, delay and inconvenience involved in assessing the will of the majority through a fresh application for a new protected action ballot. As the Full Bench also observed at [21], the provision of that facility is consonant with the object of Div 8 as set out in s 436 “to establish a fair, simple and democratic process” to determine the will of the employees.
[17] If the function given to the Commission is to be exercised by reference to an assessment of whether the will of the majority of employees for the taking of particular industrial action will continue beyond the 30 day period, it seems unlikely that it was intended that such a function could only be exercised during the 30 day period. …”[8]
Pertinent to the exercise of the Commission’s discretion under s.459 the following has been held about the exercise of the Commission’s discretion, with which I concur:
Per Maritime Union of Australia v DP World Adelaide Pty Ltd, Hampton C (as he then was), [2010] FWA 7638:
“[29] The discretions in this matter are to be exercised judicially and all relevant considerations taken into account. This includes the scheme of the Act, the conduct and circumstances of the parties and the consequences of any extension that might be granted.
…
[32] In this case there is no contention that either party has not bargained in good faith. It is also common ground that as a result of the confirmation of positions in the lead up to the hearing of this matter, an in-principle agreement exists as to the basis of a proposed agreement between them.
[33] It is clear to me that Fair Work Australia should avoid an approach to these matters that would encourage a union from taking industrial action in part for the purpose of keeping open the option to take protected action beyond the 30 day period. Further, it would not be appropriate to penalise a party that has acted constructively by not utilising its right to take industrial action.”
Per Australian Manufacturing Workers’ Union v Mulgrave Central Mill Company Limited, Asbury DP (as she then was), [2016] 4976:
“[8] Section 459(1) establishes a 30 day period where the right to take industrial action can be described on the basis that employees are required to “use it or lose it”. Section 459(3) gives the FWC a discretionary power to extend the 30 day period. That power may be exercised in circumstances where the application for an extension is made either before or after the expiration of the original 30 day period.
[9] It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436. The discretion is wide and is unconditioned by a statutory direction. Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.
[10] Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made; parties have participated in conciliation during the original 30 day period; or have refrained from taking industrial action and bargained constructively. It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.”
As set out above, I am satisfied the statutory requirements for the application to be granted have been met and consideration therefore turns to whether the discretion should be granted.
The matters on which Grange Resources relies for the Commission to not exercise its discretion and grant the AWU’s application are summarised at an earlier point in this decision. I turn to consider whether any of those matters individually or collectively would warrant a decision to not grant the application.
Public Interest
There is no statutory test as such associated with s.459 that would cause the Commission to have to affirm an application as being either in the public interest, or at the least that it is not inconsistent with the public interest, although of course the matters referred to above need to be considered.
To the extent that the Respondent’s submission on the subject of the public interest relate to there being cogent reasons being required to refuse an application for an extension, it has not framed its submissions in this manner and in any event has not offered evidence or specific submission that would lead to a finding there were compelling reasons to refuse the application. Grange Resources has not advanced an argument that the AWU is either not bargaining in good faith or is not genuinely trying to reach agreement and neither is there evidence before me that would allow such conclusions to be drawn.
Accordingly, I do not uphold Grange Resources’ first objection; that the granting of the AWU’s application would be contrary to the public interest, however formulated.
Bargaining progress
Bargaining has been underway for some time, with Grange Resources reporting that there have been 13 bargaining meetings over 8 months, with two conciliation conferences convened by Commissioner Lee. It was common ground between the parties in the proceedings before me, including in conciliation, that bargaining had only recently stalled with the AWU rejecting the most recent settlement proposal from Grange Resources. This was despite declaration of the results of the Protected Action Ballot on 14 June 2023 showing all four forms of proposed industrial action were authorised, two of which had been implemented as protected industrial action in the first 30-day period after the ballot was declared. 211 of the 312 people eligible to vote in the ballot had voted, and the ballot on all four forms of action was decisively authorised, with authorisations of between 84.8% and 88.2%.
It is also common ground between the parties that they have each moved their bargaining stance over the period of bargaining. There is no evidence before me that would lead to a finding that the AWU is not willing to consider further modifications to its position, if called upon to do so.
Grange Resources advised in the course of conciliation that it will shortly take its proposed enterprise agreement to a ballot of all employees, with the access period to commence shortly with the ballot to take place thereafter. It considers the proposed agreement will be viewed positively by the wider employee group, advocating that the AWU should not continue its protected industrial action during the ballot period.
All that may be said of the current state of bargaining is that agreement has not yet been reached. There is neither undue stalling nor haste associated with the process. The AWU is entitled to advocate on behalf of its members that the wages offer, and other key matters are insufficiently addressed by Grange Resources, and the latter is entitled to put forward that its proposal is good and worthy of being accepted. Grange Resources is unilaterally putting its proposal to a ballot and the AWU is unilaterally conducting its protected industrial action. Each of these matters are well within the rights of those taking the action to pursue.
There is no principle to be drawn from the legislation or precedents of this Commission that protected industrial action should pause during an enterprise agreement ballot not supported by one of the unions covering the enterprise. There may be compelling reasons why a pause should be considered, however those matters are primarily a matter for the AWU and its members. No aspect of the evidence or submissions before me would cause me to decide that the absence of such a commitment means the application now before me should be refused.
Accordingly, I do not uphold Grange Resources’ second ground of objection, associated with the pace of bargaining.
Lack of briefing of employees
Grange Resources submit that “employees who are participating in PIA are not only needlessly suffering wage deductions but have not been fully briefed by the AWU and CEPU on all these circumstances particularly the improved offers made by GRT”.[9]
This is an assertion only and does not rise to evidence that employees who are depriving themselves of income while taking protected industrial action have not been informed by their union of the latest settlement proposal despite them asking for the provision of such details. While it is possible such evidence could persuade the Commission to take a different course and refuse an application for a 30-day extension, it is not a consideration in this case.
If employee briefing were to be so persuasive as to change their opinion about bargaining, then Grange Resources have a perfect opportunity to demonstrate how effective it is with the coming access period and ballot.
I therefore also do not uphold Grange Resources’ third objection, directed to employees not having been briefed of the full circumstances of bargaining.
Grange Resources’ beneficial offers
There is no basis to take Grange Resources’ submission that its “current offer for a 3-year EA is significantly more than mining sector EAs in Tasmania and nationally and [it] simply is not in a position to make any further revised offers” as a reason to refuse the AWU’s application. Perhaps Grange Resources is correct in its views, however that is a matter for the company to persuade its employees about.
I therefore also refuse Grange Resources’ fourth ground of objection; that its beneficial offers to employees warrant not granting the AWU’s application for a 30-day extension.
An earlier application should have been made
Grange Resources’ initial objection to the Commission about the AWU’s application complained about the late filing of the application:
“a. The Applicant was well aware they could have made an application to extend the 30-day period earlier. This is because the parties had discussions about the Applicant making such an application earlier, which they elected not to do.
b. The parties were well aware they could make an application earlier as they were brought before the Fair Work Commission under a section 240 application with extensions of this nature being discussed as an option.”[10]
There is no legislative support for the proposition that a late application to extend the 30-day period should be refused, with neither the Act nor the Explanatory Memorandum that led to the Act addressing the subject.
There is also no evidence that would suggest the AWU had led Grange Resources to believe an extension would not be sought. Grange Resources’ submission that the “parties were well aware they could make an application earlier” indicates only that Grange Resources knew an extension was a possibility. Neither party suggest that the proceedings before Commissioner Lee resulted in agreement that an extension would not be sought.
Bargaining is necessarily a process of persuasion and at times it may become hard bargaining. There is no presumption that a long period of notice needs to be given by a union to an employer of an application of the type now before me. A 30-day extension will still obligate the AWU to give the periods of notice for the commencement of protected industrial action required by s.414.
Accordingly, I also refuse Grange Resources’ fifth objection to the 30-day extension; that an earlier application should have been made.
Period of extension
The AWU argues for an extension of 30 days. There is no submission from Grange Resources for a shorter period and I do not see a particular or compelling need for it to be shorter.
Other matters
Grange Resources also seeks the Commission’s assistance in delaying the protected industrial action until the vote is returned; seeking a neutral stance from the Union to allow the vote to proceed; and seeking the AWU consider and provide an updated position based on the Respondent’s most recent offer.
These matters may properly be canvassed in further bargaining. There would be greater moral imperative to these propositions if concomitant with the steps it seeks from the AWU Grange Resources itself undertook not to proceed with the ballot. In proceeding with the ballot Grange Resources is intimating that its position is superior, and the union should acquiesce.
Should Grange Resources advise it will not proceed with the ballot if the AWU takes the three steps referred to above while bargaining resumes then I would be prepared to urgently relist the bargaining dispute and strongly recommend a pause in all directions while a final position agreeable to all is reached.
CONCLUSION
Being satisfied that the statutory criteria have been met by the AWU and that the Commission’s discretion should be exercised accordingly, I order pursuant to s.459(3) of the Act, that the 30-day period for the commencement of protected industrial action for eligible AWU members employed by Grange Resources (Tasmania) Pty Ltd T/A Grange Resources be extended by a further 30 days.
This order will operate on and from 13 July 2023.
COMMISSIONER
[1] Grange Resources Outline of Submissions, 17 July 2023, [1].
[2] Ibid.
[3] Ibid, [4].
[4] Ibid, [3], [5], [7] – [9].
[5] Email from Grange Resources to the Fair Work Commission, 13 July 2023.
[6] Grange Resources Outline of Submissions, 17 July 2023, [10].
[7] United Collieries v CFMEU (2006) 153 FCR 543, (2006) 153 IR 103, [21].
[8] Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8, (2014) 241 IR 100.
[9] Grange Resources Outline of Submissions, 17 July 2023, [6].
[10] Email from Grange Resources to the Fair Work Commission, 13 July 2023.
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