"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal,...
[2010] FWA 5036
•15 JULY 2010
[2010] FWA 5036 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
and
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Tully Sugar Limited
(B2010/3162), (B2010/3163)
COMMISSIONER SPENCER | BRISBANE, 15 JULY 2010 |
Proposed protected action ballot by employees of the Tully Sugar Limited.
Introduction
[1] This determination relates to the s.437 applications made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (B2010/3163) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (B2010/3162).
[2] The AMWU was represented by Ms Lucy Weber of the AMWU; and the CEPU was represented by Ms Pat Rogers of the CEPU. Mr Michael Coonan of Freehills sought permission to appear on behalf of the Respondent.
[3] The applications were heard together urgently on Friday 2 July 2010. The matter required an assessment of the evidence, and the transcript was required for this purpose. Accordingly a decision was not given at that stage. The hearing proceeded another s.437 application by the AMWU for the Mulgrave Central Sugar Mill (B2010/3160). A decision was released on transcript in this matter. Similar objections were raised in relation to the Tully Sugar Mill applications, accordingly given the determination on a range of similar issues in the earlier matter, it was confirmed by the parties that the only objection being pressed in this matter was whether the Applicant ‘has not been and is not, genuinely trying to reach an agreement’.
Summary of the Applicant’s Submissions
[4] The Union Applicants hold the onus of demonstrating that the requirements in s.443(1) have been met.
[5] In relation to s.443(1) I am satisfied that the application pursuant to s.437 has been appropriately made. The Respondent has objected to the application and satisfaction needs to be reached in regard to s.443(1)(b) as to whether each party has been and is genuinely trying to reach an agreement. This assessment is based on the submissions of the parties, the evidence regarding the circumstances of the negotiations and the case precedents. Whilst not all of the evidence and submissions have been referred to, all of such has been considered in this determination.
[6] The CEPU set out the good faith bargaining requirements pursuant to s.228 that a bargaining representative must meet; and that an assessment of these requirements (set out below) is of assistance in determining whether the Union has been genuinely trying to reach agreement; these requirements include:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
In accordance with s.228(2), the good faith bargaining requirements do not require a bargaining representative to:
(a) make concessions during bargaining for the agreement; or
(b) to reach agreement on the terms that are to be included in the agreement.
[7] The CEPU referred to the evidence of Mr Walter Giordani, in demonstrating the genuiness of the efforts of the Union in trying to reach agreement with the Employer, and that it had complied with the good faith requirements.
[8] The evidence of Mr Giordani was clear in regard to the CEPU’s position regarding the proposed agreement and their conduct in negotiations. 1
[9] The CEPU submitted that there was no evidence to affirm that the Union had failed to seriously consider any offers or proposals put to them. Further, the fact that the CEPU had not accepted such offers or proposals is not relevant to the genuiness.
[10] The Unions acknowledged that they had taken a particular position in regard to the negotiations. This approach is not inconsistent with the determination of Justice Marshall in Australasian Meat Industry Employees’ Union v G & K O’Connor 91 IR 356. He found that the Employer had genuinely negotiated despite, taking an extreme position or hard line approach, Justice Marshall stated as follows at 362:
“[45] There is no doubt that O’Connor has taken a hard line and refused to moderate its demands for an extraordinary wage cut of surprisingly large proportions. However there is a lack of evidence, as the evidence currently stands, which points to a lack of preparedness to consider seriously any offers and proposals made by the Union. On the issue of wages the Union sought a 3 per cent increase. There is nothing before me to indicate that that position was not seriously considered by O’Connor before it was rejected.
[46] Consequently, on the current state of the evidence, I do not believe there exists any more than a barely arguable case that O’Connor did not genuinely try to reach agreement before taking protected action.” (Emphasis added)
[11] In his judgment at 361-2, Justice Marshall adopts a statement by SDP Hancock fromRe Australian Rail, Tram and Bus Industry Union (Print L5622, 30 September 1994), Australian Industrial Relations Commission, which gives a concise statement of the issue of genuinely trying to reach agreement:
“bargaining in good faith does not require a willingness to make concessions. It is consistent with adopting ‘a hard line’. Equally, it does not imply moderation of demands. It does imply a preparedness to consider seriously offers and proposals made by the other side and to take account of arguments; but if, having done these things, a bargaining party is unmoved, it may still be bargaining in good faith. The inability of parties to reach an agreement is not evidence that either is acting in bad faith. The adoption of a hard line or the making of extravagant demands may evince an underlying intention of obstructing agreement. This tactic would constitute bad faith, but in few cases, if any, could its existence be inferred from the bargaining stance alone.”
Summary of the Respondent’s Submissions
[12] The objection of the Tully Sugar Limited (TSL) (the Respondent) to the proposed ballot was framed in written submissions as follows:
“In considering whether a party is genuinely trying to reach agreement, FWA can take into account whether the party is meeting the good faith bargaining requirements of the FW Act and whether they are being reasonable. It is submitted that the unions are not bargaining in good faith, and in the circumstances not genuinely trying to reach an agreement with TSL for the following reasons:-
• at the last meeting neither bargaining representative of the Applicants attended the meeting.
• at that meeting it was agreed TSL would begin a series of information meetings to progress towards another approval vote.
• the Applicants were or ought to have been aware of those steps.
The AMWU is also the bargaining agent for a proposed enterprise agreement with Sucrogen Australia Pty Ltd (CSR). The AMWU’s subsuming TSL’s enterprise agreement into a wider AMWU campaigning at Sucrogen and the industry generally. As such, the applications for a protected action ballot order are in furtherance of the AMWU’s claims beyond the TSL enterprise agreement, and not good faith bargaining in relation to the TSL enterprise agreement.
FWA is required to consider the unions’:
(a) Attendance at meetings;
(b) Response to matters raised; and
(c) Reasonableness of conduct.”
[13] Mr Coonan developed the Respondent’s submissions at the hearing. He raised a number of matters; firstly he referred to the “Sucrogen” decision recently (delivered by Fair Work Australia as currently constituted; 2) in relation to the contention that a proposed agreement had been struck by parties at the last meeting. Mr Coonan submitted as follows, in relation to whether there was an agreement between the employer and the bargaining representatives to take the proposed agreement to vote:
“Looking at some of the other matters raised. First of all I emphasise again it’s not as Ms Weber has indicated, that this is a case where the employer has decided unilaterally to go off on a ballot frolic. As we said, the union was present, the delegates were present, and there was an agreement.” 3
[14] In relation to the Sucrogen decision, Mr Coonan submitted:
“... the evidence was that there was an agreed process. The only direct evidence you have is Mr Dun, and Mr Dun says that there was a meeting. At that meeting, which the bargaining representatives were present through the delegates, there was an agreement on how this matter was going to proceed and not only was going to proceed, has been proceeding. He said they were at least two-thirds of the way through the meetings before the ballot - you know, if there was strenuous opposition to what was being done, then there would have been an objection long before now, but this puts us squarely back into the matter which you expressly caused you some concern this morning [in relation to B2010/3160], in that all of a sudden more than halfway through the process - and we say an agreed process - there is an application for a strike ballot. That’s what we say brings us squarely within the Sucrogen decision.” 4
[15] Mr Coonan also sought to rely upon the decision of Senior Deputy President Watson in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v RFI Industries Pty Ltd 5where he decided the length and number of meetings, and length of the negotiation are factors not determinative of whether a party is genuinely trying to reach agreement. Mr Coonan submitted this was directly relevant to the facts and evidence presented in these applications.
[16] Mr Coonan also asserted that the Unions had acted contrary to the good faith requirements of s.228(d) of the Fair Work Act 2009 (Cth) (the Act) that requires bargaining representatives to consider proposals, and give reasons for responses to proposals. Mr Coonan submitted that there was evidence provided that a wage increase had been provided by the Respondent and that, the Unions would not respond with an alternative proposal. Mr Coonan further relied upon s.3 and s.171 where he highlighted the Act’s objectives to consider productivity benefits throughout the bargaining process. He also referred to the AMWU’s Sugar Industry Campaign as evidenced by “the stickers” and their endeavours to subsume the Tully Sugar Limited negotiations as part of the Sucrogen negotiations.
[17] In relation to the hard-line bargaining concept raised in the authorities, Mr Coonan stated:
“What our contention is is that the party sits down and doesn’t tell you what they want, doesn’t tell you why you’re offer is not good enough, agrees to a process and then in the middle of that process whacks in a strike ballot order, then that’s not hard-line bargaining. That’s bad faith bargaining. That’s not trying to genuinely reach an agreement...So it’s not hard-line bargaining when you don’t know what you’re holding out for.” 6
[18] Ms Rogers supported the arguments made by Ms Weber on behalf of the AMWU. Ms Rogers stated:
“In relation to comments about “The employee representatives at the second-last meeting would not tell us what was enough”, the evidence is that at the second-last meeting at best there was one delegate from the AMWU present and one, possibly two, delegates from the CEPU. To ask delegates to provide a definitive position on wages where their organisers are not available and not present is to deny the reality of how a union works. It is not reasonable to put the delegates in a position where they are going to have to make that sort of statement and commitment without consultation with the organiser or with the members, particularly given the fact that the organiser had made a comment some one month earlier.” 7
[19] Ms Weber’s submission was that the Sucrogen decision can be distinguished on the basis that not only the facts were different, but also that the Sucrogen decision was in response to an application pursuant to s.418 to stop industrial action. Ms Rogers additionally stated that:
“the unions had sat down with the employer [Sucrogen] - the union organisers had sat down with the employer and said, “Yes, we agree to the agreement going out to a ballot.” We haven’t done that. There is no evidence here that says we’ve done that. We have evidence from Mr Dun that says “The unions agreed”; we have evidence from Mr Giordani that says, “We didn’t agree” - we have contradictory evidence. It is uncontested.” 8
[20] In relation to this point, Ms Weber of the AMWU stated:
“There has been much talk of two meetings; meetings that occurred on 18 June and 22 June. Presumably, the respondent alleges that those meetings are relevant because they relate to a position that Tully has made in its own mind that it would begin a series of information meetings to progress the matter towards another vote.
The evidence that has been drawn by the respondent is this: Mr Dun concedes that he never spoke to Mr Finch about that process. It's not challenged that Mr Finch was not at that meeting. Mr Finch concedes that things happen at meetings that he's not aware of, because of the way that reporting occurs between delegates and the union. In these circumstances, there is no evidentiary basis whatsoever to support the contention that the AMWU ought to have been aware that any view had been formed by Tully that it had undertaken some kind of process to go towards the vote or that the parties had agreed to some kind of process whereby, for example, the AMWU would suspend its bargaining position.
In other words, in the earlier application, there was an a analogy made to your decision, Commissioner, in the Sucrogen matter. There is no analogy that can be drawn here with that case for the reasons that in the earlier application it was a different type of application et cetera, but because in that case the parties had agreed on a set course with specific meetings to be held in conjunction with each other. The AMWU had suspended its bargaining and its claims in order for that to occur. In this case, all that's happened is that the employer has decided that it wants to exercise a right that it has ...”
[21] Further, in relation to the evidence of Mr Dun she stated:
“He doesn't identify who those bargaining representatives were or in what way their lack of preparedness manifested itself in that bargaining, or even whether that lack of preparedness had any tangible effect on the bargaining that occurred, other than they might have had to wait around for a little bit longer while the organisers read something that had previously provided to them. I would have thought that it would be a better basis to start from to make sure that everyone had read material. People are busy, but in any event, that bold assertion does not go nearly far enough to justify a contravention of any of the good faith bargaining requirements under section 228 and therefore is simply irrelevant to the purposes of determining whether the AMWU is genuinely trying to reach agreement in this matter.
There are other assertions in the statement of Mr Dun to the effect that he didn't feel like he'd received satisfactory responses to offers. Now, generally speaking, the AMWU's submission is that it has been engaged in a series of meetings over a relatively long period of time that has discussed a number of issues and there are a few outstanding that are identified in the statement of Mr Finch that have precipitated this application. It is well established in the jurisprudence of this tribunal that taking a hard line in approach to wages or otherwise, does not constitute a breach of good faith bargaining requirements and is not determinative of whether a party is genuinely trying to reach agreement. The evidence taken at its highest of Mr Dun doesn't really go any further than that.”
[22] Further to this Ms Rogers stated:
“The employer has, on its own evidence, decided to arrange the information sessions. Our submissions are that's okay, that the employer is entitled to do that, the union is not able to object or prevent that from occurring - however, not objecting should not be taken to be read as the union having agreed. The evidence that's before you this afternoon is that the employer announced their intention at a meeting on - I thought it was 22 June, but maybe 23 June. Our organiser, Mr Giordani, was not present. Tully Sugar did not contact Mr Giordani to seek his agreement to the information sessions and the amended document going to a vote of our members. Mr Giordani did not agree and nor did the delegates agree.
Just a couple of points in relation to the employer submissions. At point 1.3, the employer seems to make something of the fact that at the last meeting neither bargaining representative of the applicants - which I take to mean the CEPU and the AMWU - attended the meeting. With all due respect - and this is in evidence before Fair Work - attachment WG4 to Mr Giordani's statement is a copy of an email sent to him at 2.56pm on Monday, 21 June suggesting that there would be a meeting the following day at 2.30pm.
Mr Giordani is based in Townsville. Tully Sugar, I think, is based in Tully. That's two hours away. Our organisers do not sit around in their office waiting for an employer to ring them up and go, "By the way I've got some work for you to do." Mr Giordani was not available for that meeting. For the employer to suggest that in some way the union has been derelict in its role, because Mr Giordani did not attend the meeting with less than 24 hours' notice, quite frankly is objectionable.
The next dot point is: the submissions say it was agreed that Tully Sugar would begin a series of information meetings to progress towards another approval vote. There is no evidence that supports that submission. The evidence provided by the union is clear, that we did not - Mr Giordani did not, nor did our delegates - agree to the proposal. We merely sat by and accepted that the employer was entitled to do that.
In relation to 1.4, the CEPU submissions are that that is completely irrelevant; it does not apply to the CEPU. There is nothing before Fair Work Australia that would support that submission in relation to the CEPU - and I assume that on the basis that the only union that is referenced there is the AMWU, that the employer is conceding that.
In relation to 1.5, the good faith bargaining issues, Mr Giordani's attendance at meetings - there were 10 meetings held between February and 5. Of those 10 meetings, Mr Giordani attended eight. The last two meetings Mr Giordani did not attend. Those meetings were held at very short notice and at a significant geographical distance from where Mr Giordani is based.
In relation to the union's response to matters raised, I refer you to attachment WG1 to Mr Giordani's statement, where it goes through the log of claims - as was originally provided to Tully Sugar - and has a whole range of notes provided both by Tully Sugar and the unions in relation to the negotiations that occurred around various matters. In relation to the reasonableness of conduct, the union's submission is there is absolutely no evidence that our conduct had been in any way, shape or form unreasonable.”
[23] Mr Coonan submitted that the uncontested evidence of Mr Dun was that an agreement was reached between those present at the last meeting to move the proposed agreement to vote. Mr Coonan stated:
”Commissioner, the matter before you, we say falls squarely within the terms of the Sucrogen decision and your decision in that matter. That is that it's not genuine bargaining to apply for a strike ballot during the process - we say by analogy - leading up to a ballot. The only submissions made by the other sides - by the two parties about that is that they believe that the evidence shows that there was not an agreement to that process, but that's not what the evidence shows. What the evidence shows - Mr Dun gave evidence he was present at every meeting; Mr Giordani said he wasn't present and didn't know what went on at every meeting, and particularly the last two meetings.
Mr Rick Finch said he wasn't present at the last two meetings and he didn't know what went on there either. One person who gave evidence who said what went on there - the person who have direct evidence of what went on there said that there was an agreement at that meeting that the process would go into - would lead up to another vote. Mr Finch in paragraph 7 of his own statement accepts that it was leading up to a vote. He says that at paragraph 17.
RFI. Decision date 27 October 2009, (2009) FWA 845. In that matter Watson SDP said that the length of the meetings, the number of meetings, and the length of time that has passed in the negotiations are not determinative of whether a party is genuinely bargaining. That's our exact point here. If one party sits down there and says - drags the meetings on, has meeting after meeting, can't locate minutes of meeting which the evidence says has been sent to them, doesn't take report back from his delegates after every meeting, then to come along and say, "Oh, but we've been genuinely bargaining."
Mr Dun has given clear evidence that the meetings - the second-last meeting, which Mr Giordani admitted that he wasn't present, and therefore his evidence didn't relate to the last meeting, and therefore doesn't contradict Mr Dun's evidence - at the second-last meeting he was informed that 3 per cent is not enough. They wouldn't tell us why, nor would they put any figures on the table. That's directly contrary to the requirements of section 228. 228(d), good faith bargaining requirement, says that...
That's not our contention. What our contention is is that the party sits down and doesn't tell you what they want, doesn't tell you why you're offer is not good enough, agrees to a process and then in the middle of that process whacks in a strike ballot order, then that's not hard-line bargaining. That's bad faith bargaining. That's not trying to genuinely reach an agreement. This has gone beyond one party saying, "I'm holding out for that", because the problem that my client has is we don't know what they're holding out for, because they won't tell us. So it's not hard-line bargaining when you don't know what you're holding out for.”
Conclusion
[24] Analogies were drawn from each party between the circumstances of the current matter and the factual matrix of the Sucrogen decision I recently delivered.
[25] The concept of genuinely trying to reach agreement was considered in Total Marine Services Pty Ltd v Martine Union of Australia:- 9
“[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. At the very least one would normally expect the applicant to be able to demonstrate that is has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant had genuinely tried to reach an agreement, cannot be granted.”...
[26] The predominant distinction between the circumstances of these matters is that in the Sucrogen matter the clear evidence between the Employer and Union parties as confirmed on the record is that the negotiating organisations had reached an agreement to move the proposed agreement to vote. The current evidence cannot be elevated to this standard. Whilst the evidence of Mr Dun, was that he considered that such a decision had been reached with the delegates (given the absence of the organisers) at the meeting; the Unions contesting this significant step.
[27] The frustration of Mr Dun is acknowledged in endeavouring to engage in negotiations that on, his evidence, do not seem to be progressing for want of proper attendance at meetings and responses to offers by the Unions.
[28] The examination of the evidence, against the case authorities, is that the characterisation of the bargaining conduct to date, falls short of meeting the test of ‘not genuinely trying to reach agreement’. This is predominantly due to the disparity in the evidence regarding the responses to offers meeting outcomes and communication of such and that it was not an agreed fact that a proposed agreement had not been confirmed. However, the objections of the Respondent has clearly indicated to the Unions their view of the deficiencies in the Unions’ bargaining behaviour and the effect such is having in reaching agreement. Any required further assessment of the negotiations from this point will focus on the meeting attendance, response to offers and communication as to whether the parties have genuinely been trying to reach agreement and an assessment of the overlapping ‘good faith bargaining criteria’.
[29] For the aforementioned reasons the Protected Action Ballot Order is granted and separately provided.
[30] Unlike the Sucrogen decision referred to, there is no confirmed evidence that the parties had agreed to take the proposed agreement to vote. Whilst it is acknowledged that conduct of the type referred to in the submissions, that is non-attendance at meetings or being non-responsive to offers, together with reneging on an agreement may be commensurate with conduct equivalent to “genuinely not trying to reach agreement”; the evidence does not meet these tests. If such conduct was affirmed in future evidence it may meet the basis for an application for good faith bargaining orders.
COMMISSIONER
Appearances:
Ms Lucy Weber, for the AMWU
Ms Pat Rogers, for the CEPU
Mr Michael Coonan of Freehills, for Tully Sugar Limited
Hearing details:
Brisbane
2010
2 July 2010
1 Paragraphs 8, 9, 11-15, 19-29, 30 & 32 of Mr Giordani’s Statement
2 Sucrogen v AMWU, AWU and CEPU [2010] FWA 3905.
3 PN556.
4 PN576-PN577.
5 [2009] FWA 845.
6 PN568.
7 PN599.
8 PN602.
9 [2009] FWAFB368 [32] & [36]
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