Australian Workers' Union v Tasmania Mines Pty Ltd

[2023] FWC 3085

[2023] FWC 3085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Tasmania Mines Pty Ltd

(B2023/1289)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 28 NOVEMBER 2023

Proposed protected action ballot of employees of Tasmania Mines Pty Ltd

1. This is an application by the Australian Workers’ Union (AWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Tasmania Mines Pty Ltd (Tasmania Mines or Employer). The application concerns a proposed single enterprise agreement.

1. On 24 November 2023, the Commission was advised that Tasmania Mines objected to the application on a number of grounds. Those grounds included that the AWU had not been genuinely trying to reach an enterprise agreement with it and that the form of ballot questions raised concerns about productivity, potential stand-downs of employees and safety.

1. In the circumstances, I have decided to conduct a hearing in order to determine the application. Having done so, I have now determined that the application, as amended during the proceedings, should be granted.

1. Section 437 of the Act provides as follows:

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 the application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

1. Section 443 of the 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.

1. I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter. Further, most of the matters raised in the provisions above were also not in dispute.

1. The AWU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. There is no dispute that the AWU was entitled to bring the application and that a valid application has been made under s.437 of the Act. The substantive issue contended by the Employer is whether the AWU has been and is genuinely trying to reach an agreement with the it – s.443(1)(b) of the Act.

1. In support of its proposition that it has met s.443(1)(b), the AWU relied upon the declaration[1] of Mr Robert Flanagan, Assistant Branch Secretary, the oral evidence of Mr Regan Powell,[2] Organiser, and the email exchanges subsequently provided to the Commission concerning the ongoing negotiations between the parties. This includes the context, events, and actions taken by the AWU is support of its objective of reaching an agreement with the Employer.

1. Tasmania Mines contended as relevant to the present issue that:

·  The AWU has made a series of changes in representatives, and this has adversely impacted the continuity of the negotiations and the incorrect perception (amongst the employees) that it was not amendable to an agreement;

·  The remaining non-agreed matter is wages and the company in good faith has made payments of 5.75% in 2023 and has offered to apply Mining Industry Award safety net review adjustments arising from the Annual Wage Review in subsequent years;

·  The AWU has not accepted these (reasonable) offers and has declined to meet further;

·  The AWU has not consulted employees about the negotiations or PABO application; and

·  The AWU has failed to act for a considerable period and has made this application without consultation with the Employer.

1. Tasmania Mines did not lead evidence. I observe however that that some of the factual contentions advanced by it were accepted by the AWU. However, the evidence going to the motivation and actions of the AWU remained largely in dispute and I have resolved this by reference to evidence that is properly before the Commission.

1. The evidence before the Commission demonstrates that:

·  Bargaining commenced in 2022;

·  Formal bargaining meetings have been conducted on dates that include 7 and 12 December 2022, 9 February, 5 and 12 May and 30 June 2023; and

·  Many matters have been resolved during the negotiations; however the parties remain apart on the timing, number and quantum of wage adjustments over the life of the proposed agreement.

1. Following the final in-person meeting conducted on 30 June 2023, the following exchanges of positions have taken place:

·  On 17 July 2023, the Employer indicated that it had consulted some of the employee crews and provided ‘feedback’ on its wages position;

·  On 17 July 2023, the AWU sought clarification about the Employer’s proposal and outlined its version of a wages outcome;

·  On 26 July 2023, the Employer clarified its wages offer;

·  On 15 August 2023, the AWU confirmed that it did not support the Employer’s proposal and following consultation with its members, sought an increase in line with earlier indications;

·  On 25 August 2023, the Employer indicated, in effect, frustration with the AWU’s position and advised that it intended to put its proposal to the workforce by way of a vote and sought the AWU’s endorsement. It also indicated that in the absence of that endorsement, it would apply the (wages) changes administratively;

·  On 25 August 2023, the AWU responded and confirmed that following “direction from your workforce” it rejected the wages proposal in terms of years 2 and 3 of the proposed agreement and advanced a counteroffer. The AWU also sought confirmation of the date that the (Employer’s) offer was to be put to the employees and an opportunity to review (the proposed agreement document);

·  On 8 and 20 September 2023, the AWU sought a response to its 25 August counter-proposal; and

·  On 21 September 2023, the Employer responded to the AWU and advised that it would maintain its current position and “simply follow the wisdom of the FWC” on wages.

1. The AWU consulted its membership during and after the above processes including in relation to this application. This involved seeking and exercising a right of entry under the Act on each occasion, and meeting with the four shifts involved during the respective shift changeovers.

1. The Employer has not put a proposed enterprise agreement out to the employees for approval but has, as promised, implemented its wages offer administratively.

1. Following additional consultation with its membership about the Employer’s proposal and the concept of a PABO application, this matter was commenced on 23 November 2023.

1. The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has been summarised, in effect, by the Full Bench in Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers’ Union.[3] This includes, as relevant to this matter:

·  While there is a relationship between the good faith bargaining requirements in s.228 of the Act and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.[4]

·  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.[5] The Commission should have regard to all of the relevant facts and circumstances of the particular case.[6]

·  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.[7]

·  The reference to the Commission being ‘satisfied’ means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant union. The expression ‘has been, and is’, imports temporal considerations. The Commission’s attention is thereby directed to the applicant’s prior conduct at the time the application for a protected action ballot order is determined.  Given the context the reference to ‘an agreement’ is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the Act.[8]

1. The expression “genuinely trying” has also been taken to be concerned with the genuineness or authenticity of the trying; that is, the efforts, by the applicant to reach the stated goal, being an enterprise agreement that meets the requirements of the Act.[9]

1. In this case, the evidence before the Commission generally supports the notion that the AWU has been and is genuinely trying to reach an agreement with Tasmania Mines. It has also meaningfully engaged and continues to engage with the bargaining process that has been underway for many months with the genuine objective of reaching an agreement. The fact that there have been no in-person bargaining meetings for some months might in other circumstances be problematic in terms of whether the applicant party was genuinely trying to reach an agreement. However, in this case, the parties have continued to exchange positions, the Employer has declared that it has made (and implemented administratively) its final position on the wages issue, and the AWU has undertaken comprehensive consultation with its membership to confirm its response to the employer’s proposal and to endorse the proposed PABO. The logistics associated with that consultation given the circumstances of the mining operation is also a factor which contributed to the delay in making this application and not otherwise meeting again with the Employer.

1. There is no evidentiary basis for the proposition that the AWU has some ulterior motivation in taking this application and the evidence on behalf of the AWU is that it has been and continues to genuinely seek an agreement with the Employer; albeit on different wages terms than Tasmania Mines has proposed.

1. To the extent that Tasmania Mines position indirectly raises the notion that the AWU may not be meeting the good faith bargaining requirements of the Act,[10] this has not been made out. In any event, I have taken into account the concerns that are directly relevant to the determination of the present matter, where supported by any evidence.[11]

1. I would be open to the suggestion that significant progress in the negotiations has been made and remains possible without recourse to protected industrial action. However, this is not the test for a PABO to be issued and protected industrial action as part of bargaining, provided that the various statutory requirements have been met, is part of the scheme of the Act.

1. I observe that although prior advice may occur, there is no requirement that a PABO applicant advise an employer of their intention to lodge such an application. The requirement[12] is that the application is provided by the applicant to the employer (and the proposed ballot agent) within 24 hours after it has been made. This has taken place in this matter.

1. I find that the AWU has met the requirements of s.443(1)(b) of the Act.

1. As to the proposed ballot questions, these are in the following terms as amended:

1.   Periodic 60-minute stoppages of work?

Yes [  ] No [  ]

2.   Periodic 4 hours stoppages of work?

Yes [  ] No [  ]

3.   Periodic stoppages of work for a full shift?

Yes [  ] No [  ]

4.   No recording of data (excluding maintenance data), no log of weigh in on loader, no log sheets for sizing, filter plant, scheelite and measurements of chemicals?

Yes [  ] No [  ]

1. There is no dispute that the questions represent forms of industrial action as required by s.437(3)(b) of the Act[13] and that they have sufficient clarity for present purposes.[14] Although the questions (the proposed industrial action) are not supported by the Employer, the objection about the potential impact of the proposed questions is not presently relevant. I observe that the Commission does not, in determining a PABO application, approve or disapprove of the particular proposed forms of industrial action beyond consideration of the ballot questions as set out above.[15]

1. On the basis of the material before me, I am also satisfied that there is a notification time[16] in relation to the proposed agreement and that all of the requirements in s.443 of the Act have been met, including those not in contest and not expressly dealt with in this decision. On that basis, and given that s.443(2) does not apply, I was obliged to issue the Order.

1. The ballot is to be conducted by the Australian Electoral Commission. 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 15 January 2024.[17] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An order has been separately issued in PR768600.

1. 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 involved 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:

R Flannagan with R Powell for the Australian Workers’ Union.

G Doherty and K Coupez for Tasmania Mines Pty Ltd.

Hearing details:

2023
November 27
MS Teams Video Hearing.

Final written submissions:

27 November 2023.

[1] As clarified during the course of the hearing.

[2] Mr Powell’s evidence was not substantively contested by the Employer.

[3] [2015] FWCFB 210.

[4] Ibid at [18].

[5] Ibid at [34] - drawing upon Total Marine Services Pty Ltd v The Maritime Union of Australia[2009] FWAFB 368 (Total Marine).

[6] Ibid at [57].

[7] Ibid at [35] - but qualifying a further statement made in Total Marine.

[8] Ibid at [54].

[9] J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 9963 at [89].

[10] Section 228 of the Act.

[11] Noting that the two concepts are related but should not be conflated.

[12] Section 440 of the Act.

[13] Defined in s.19 of the Act. See also Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[2017] FWCFB 470.

[14] See National Tertiary Education Industry Union v Curtin University[2022] FWCFB 204.

[15] Ibid.

[16] Required by s.437(2A) of the Act.

[17] Sought by amendment during the hearing. This is, in effect, marginally more than 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

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