“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2020] FWC 931

[2020] FWC 931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(B2020/96)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 FEBRUARY 2020

Proposed protected action ballot of employees of Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines.

[1] At 4.58pm on Monday 17 February 2020, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applied for a protected action ballot order (the Application). In doing so, the AMWU seeks an order that those employees of Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines (Iplex) who will be covered by the proposed enterprise agreement and are represented by the AMWU as bargaining representative, except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day a ballot order is made (unless such an employee has made a conditional termination of that instrument), be balloted to see if they support the taking of protected industrial action.

[2] The Application was accompanied by a statutory declaration declared on 17 February 2020 by Mr Raoul Wainwright, an Industrial Officer of the AMWU.

[3] Email correspondence was sent from the Chambers of Deputy President Gostencnik to Iplex at 5.29pm on the same day, seeking advice as to whether it opposed the Application. In a reply email sent at 2.43pm on Tuesday, 18 February 2020, Iplex advised it objected to the Application on the basis that it has been “genuinely bargaining in line with good faith principles” and was “confident that the negotiations were almost at a conclusion” and that the AMWU has acted “in breach of good faith bargaining” in its approach to some of the issues that have been the subject of negotiations.

[4] In an email sent in response at 5.10pm on 18 February 2020 from the Chambers of Deputy President Gostencnik, Iplex was asked to outline the statutory basis for its objection to the Application. Iplex replied by email at 9.25am on Wednesday, 19 February 2020, stating that the AMWU is not genuinely trying to reach an agreement with it.

[5] The matter was then allocated to me and I conducted a telephone mention with the parties at 3.00pm on Wednesday, 19 February 2020 during which:

a) Iplex was directed to file in the Commission and serve on the AMWU any material upon which it intended to rely in support of its objection to the Application by no later than 9.30am on Thursday, 20 February 2020; and

b) The matter was listed for hearing at 1:00pm on Thursday, 20 February 2020 before me.

Iplex’s Evidence and Submissions

[6] Ms Rachel Holt, HR Business Partner for Iplex, gave the following evidence:

•  She is an Iplex-appointed bargaining representative and part of the Iplex negotiation team in respect of the replacement Agreement for the Iplex Pipelines Australia Pty Ltd Enterprise Agreement 2016 –Reservoir Manufacturing.

•  She is satisfied that both Iplex and the employee bargaining representatives are genuinely trying to reach agreement on the terms of the new Agreement. Under cross examination, Ms Holt confirmed that this includes the AMWU.

•  It is her belief the parties are close to reaching full agreement.

•  The agreed position last year was to increase the loaded rate by 0.5% in exchange for the AFL Grand Final public holiday being moved into the loaded rate. Further, as part of the agreement to move 0.5% to the loaded rate, the unions agreed to a 2% per annum pay increase and a 3‐year agreement with back pay. Ms Holt, however, clarified that it was the UWU’s proposal that the loaded rate be increased by 0.5% in exchange for the AFL Grand Final public holiday being moved into the loaded rate. Further, she gave evidence that prior to 10 February 2020, the AMWU neither positively endorsed this proposal nor communicated its dissent.

•  In‐principle agreement was reached and a “Summary of Changes” document was emailed to the AMWU and United Workers Union (UWU) on 8 January 2020 in accordance with her understanding that the access period and voting process would be occurring.

•  She attended the Agreement negotiation meeting on Monday, 10 February 2020, at which the AMWU proposed a counter position to what she regarded as an already agreed position around the AFL Grand Final public holiday and the effect on the loaded rate.

•  The AMWU also again sought the insertion of the Modern Award in the new agreement at the meeting on 10 February 2020, however she considered this was a matter that had already been dealt with and Iplex’s position to retain the current clause 1.3, put at the previous meetings, has not changed.

•  The first she knew of the AMWU having a different position to the UWU in relation to some of the claims, was last week.

•  The UWU, an employee bargaining representative representing 88% of the employees who will be covered by the Agreement, has recently requested a proposed agreement be put to a vote.

•  She made her own handwritten notes of the key points for the meetings held on 26 and 29 November 2019 and 10 February 2020.

[7] The handwritten notes of Ms Holt from the 26 November 2019 meeting 1 indicate that Mr Ale Mulipola from the AMWU was in attendance and includes reference to the AMWU seeking wage increases of 4% per annum and the Modern Award being incorporated into the Agreement. These notes also reveal the UWU proposal for the treatment of the AFL Grand Final public holiday, outlining “day before AFL = 0.5% LR”.

[8] The handwritten notes of Ms Holt from the 29 November 2019 meeting 2 indicate a number of options for the AFL Grand Final public holiday were discussed. The outcome of the meeting was that Iplex was to summarise its position and put it to the bargaining representatives. This included wage increases of 2%, backpay and 0.5% to be added to the loaded rate in exchange for the AFL Grand Final public holiday being moved into the loaded rate.

[9] The handwritten notes of Ms Holt from the 10 February 2020 meeting 3 record that regarding the day before the AFL Grand Final public holiday, the AMWU “now wants” 0.8% added to the base rate instead of 0.5% to the loaded rate and the AMWU position on wages was for three increases of 2.25%, down from 3%.

[10] Iplex also tendered three emails.

[11] The first email, dated 17 December 2019, was sent by Ms Holt to representatives of both the AMWU and UWU. Ms Holt stated that as per a discussion with representatives of the UWU, Iplex would increase the loaded rate by 0.5% and move the “Day before AFL” public holiday back into the loaded rate. There was also a suggestion for the “Union Delegates” clause. Ms Holt then proposed to the recipients of the email that if they were comfortable with these two matters and a “tracked up document”:

•  The Union [which she said in evidence was a reference to the two Unions] could visit site in the week commencing 13 January 2020 to see whether the manufacturing employees were comfortable to proceed to a vote;

•  Iplex could commence toolbox talks from 20 January 2020;

•  The access period could commence on or about 24 January 2020; and

•  Voting could commence from 3 February 2020.

[12] In the second email, dated 20 December 2019, the UWU responded indicating its agreement to matters raised in the 17 December 2019 email and outlining its requirement for there to be a document explaining the offer from Iplex in its totality, including the changes to income protection insurance, pay rates, back pay and definitions so that its members could be “completely clear on what we have agreed upon.”

[13] The third email was the response of Iplex to representatives of both the AMWU and UWU from Ms Holt, sent on 8 January 2020, which attached a document entitled “Summary of Changes”. Ms Holt asked the union representatives to advise as to when they planned to come to Iplex’s site during January 2020 to present to their members, so that the parties could prepare a timetable for toolbox talks with all the documents required ahead of a vote. The “Summary of Changes” document included details of three 2% per annum wage increases and of the “Friday before AFL Grand Final” being included in the loaded rate, with the loaded rate increased by 0.5% as a result.

[14] The essence of the submission of Iplex that the AMWU is not genuinely trying to reach agreement is:

a) despite Iplex indicating at the negotiation meetings held on 26 and 29 November 2019 that the incorporation of the Modern Award into the proposed agreement was not agreed to, the AMWU raised this claim again, at the meeting on 10 February 2020;

b) the AMWU is claiming wage increases of 2.25% when Iplex was under the impression that 2% increases had been agreed; and

c) The AMWU has submitted a new claim for a 0.8% increase to the base rate of pay in relation to the AFL Grand Final public holiday, whereas Iplex understood the Unions agreed on 29 November 2019 for there to be a 0.5% increase to the loaded rate, in exchange for the AFL Grand Final public holiday being included in the loaded rate.

[15] Iplex submits that in persisting with claims that have previously been rejected and making what it regards as new claims in relation to matters previously agreed, the AMWU is not genuinely trying to reach agreement. Iplex says it is surprised by the Application and is opposed to industrial action because it feels that with some more time, agreement could be reached.

AMWU’s Evidence and Submissions

[16] In his Statutory Declaration declared on 17 February 2020, Mr Wainwright for the AMWU, outlined that he had been instructed by the AMWU’s Organiser for the Iplex site, Mr Mulipola, that:

•  The AMWU’s log of claims was served on Iplex on or about 15 July 2019;

•  The AMWU met with Iplex on or about 6 August 2019, 26 August 2019, 29 November 2019, 24 January 2019 and 10 February 2020;

•  At these meetings, the AMWU negotiated with Iplex in pursuit of the demands in its log of claims;

•  Despite the AMWU’s best endeavours to reach agreement, the parties remain apart on a number of key issues, which include the incorporation of the relevant Modern Award into the proposed Agreement, pay increases, backpay and the rate of payment for the AFL Grand Final public holiday;

•  The AMWU has been and is genuinely trying to reach agreement with Iplex.

[17] The AMWU submits there are no rigid rules regarding the test of whether or not a party has been, and is, genuinely trying to reach an agreement and that all the relevant circumstances of the particular negotiations must be assessed.

[18] The AMWU further submits it has participated in numerous meetings, the most recent of which took place on 10 February 2020, and makes the Application for the purposes of progressing the negotiations. It submits that while it has changed its position in relation to some items in its log of claims, Iplex must have known the AMWU maintains certain positions in relation to some other of its items. Further, the AMWU submits it has discussed and provided responses to various claims of Iplex and there is no evidence that it has refused to meet or has otherwise not been bargaining in good faith.

[19] Having regard to this context, the AMWU submits all the requirements for the making of the order it seeks are satisfied.

Has the AMWU been and is it genuinely trying to reach agreement with Iplex?

[20] Section 443 of the Fair Work Act 2009 (the Act) deals with the circumstances in which the Commission must make a protected action ballot order. Subsections 443(1) and (2) are relevant for present purposes:

“Section 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).”

[21] The reference to the Commission being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision.

[22] The expression “has been, and is”, imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.

[23] 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 (CEPU); The Australian Workers' Union (AWU) 4 (Esso), the Full Bench stated:

“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” 5 (references omitted)

[24] In Total Marine Services Pty Ltd v Maritime Union of Australia 6 (Total Marine) a Full Bench of Fair Work Australia relevantly stated:

“[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...”

[25] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.

[26] The evidence before me reveals:

•  There have been a number of meetings between the bargaining representatives during which their respective claims have been discussed and their respective positions have changed;

•  The progress made by Iplex and the UWU has, to date, been greater than the progress Iplex and the AMWU have been able to make;

•  During the period between 29 November 2019 and 10 February 2020, the AMWU neither positively endorsed the proposal Iplex considers to be an “in principle agreement” nor communicated its dissent;

•  Iplex is frustrated because it was under the impression that it had reached an “in principle agreement” with both of the Unions;

•  The AMWU had not previously communicated that it had withdrawn any of the claims advanced by it during the meeting on 10 February 2020; and

•  The AMWU has not indicated that it is not willing to continue to negotiate.

[27] I do not consider it relevant that the UWU was more active than the AMWU during the period between 29 November 2019 and 10 February 2020. I note the AMWU was copied into the correspondence that passed between Iplex and the UWU but elected for some unknown reason to remain passive prior to 10 February 2020, rather than disabusing Iplex of the notion that “in principle agreement” had achieved between them. This does not, however, mean that the AMWU has not been, or is not, genuinely trying to reach agreement with Iplex. The AMWU has satisfied me that in all the circumstances, it has been, and is, genuinely trying to reach an agreement with Iplex. The position advanced by Iplex that the parties are close to agreement supports the contention of the AMWU to this effect.

[28] Additionally, I note:

a) The AMWU is a bargaining representative for the relevant employees 7 and the restriction in s.437(2A) of the Act does not apply;

b) The Application specifies the group of employees to be balloted and the questions to be put to the employees; 8

c) Iplex and the AEC were given a copy of the Application within 24 hours of it having been made; 9

d) The nominal expiry date of the applicable agreement has passed. 10

Conclusion

[29] The Commission does not have a general discretion as to whether a protected action ballot order should be made. It must make an order if an application has been made under s.437 of the Act and it is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. On the basis of the material before me, I am satisfied the AMWU has fulfilled the statutory prerequisites and accordingly, I am required to make a protected action ballot order.

[30] An Order will be issued separately to this decision.

DEPUTY PRESIDENT

Appearances:

Mr R Wainwright for the AMWU.

Ms R Holt and Ms K Dagley for Iplex Pipelines Australia Pty Ltd.

Hearing details:

2020.

Melbourne:

February 20.

Printed by authority of the Commonwealth Government Printer

<PR716915>

 1   Attachment to Exhibit R1

 2   Ibid.

 3   Ibid.

 4   [2015] FWCFB 210.

 5 Ibid at [57].

 6   [2009] FWAFB 368.

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

 8 Ibid, s 437(3).

 9   Ibid, s 440.

 10   Ibid, s 438(1).