"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Bitzer Australia Pty Ltd T/A Buffalo Trident

[2016] FWC 1531

[2016] FWC 1531

FAIR WORK COMMISSION

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)
v
Bitzer Australia Pty Ltd T/A Buffalo Trident
(B2016/281)

DEPUTY PRESIDENT GOSTENCNIK ADELAIDE, 11 MARCH 2016

Proposed protected action ballot of employees of Bitzer Australia Pty Limited T/A Buffalo Triden; whether AMWU has been trying to reach an agreement with the employer; relationship between good faith bargaining requirements and genuinely trying to reach agreement discussed; satisfied that AMWU has been genuinely trying to reach agreement despite apparent failure by the official to comply with a good faith bargaining requirement; time by which vote on the ballot will take place discussed; PABO issued

Introduction

[1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) is a bargaining representative in relation to a proposed enterprise agreement that will cover certain employees of Bitzer Australia Pty Ltd T/A Buffalo Trident (Bitzer). On 12 February 2016, the AMWU made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of Bitzer who are members of the AMWU.

[2] Bitzer opposes the application on the basis that the AMWU has not been genuinely trying to reach an agreement with Bitzer, with the consequence that one of the pre-conditions to making a PABO which is found in s.443 of the Act has not been satisfied.

Legislative scheme and competing contentions

[3] The requirements that relate to a protected action ballot are set out in Part 3-3, Division 8 of the Act. A protected action ballot order will only be made on application 1 relevantly, by a bargaining representative of an employee who will be covered by a proposed enterprise agreement. It is common ground that the AMWU is a bargaining representative for the proposed agreement of at least some of the employees who will be covered by the proposed agreement. It is also not in dispute that the nominal expiry date of the current agreement has passed2 and that the AMWU has served a copy of its application on Bitzer and the Australian Electoral Commission (AEC), within 24 hours of making the application.3 It is also common ground that the notification time for the proposed agreement was 26 November 2015,4 and it follows that the application for a PABO was made after that date.5

[4] A protected action ballot order may only be made in limited circumstances 6 and the Commission does not have the discretion, other than to make an order, if it is satisfied that:

(a) there has been an application made under section 437 7; and

(b) the applicant (in this case the AMWU) has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. 8 

[5] It is common ground that the AMWU has made a valid application under s.437 of the Act. The AMWU maintains that it has been and is genuinely trying to reach an agreement with Bitzer, the employer of the employees who are to be balloted. 9

[6] For its part, Bitzer does not dispute that the AMWU is now genuinely trying to reach an agreement with it, but it submits that prior to 19 February 2016, the conduct of the AMWU, through its official Mr Alistair Thomas, shows that the AMWU had not been trying to reach an agreement. 10 Bitzer correctly submits that a consideration of whether there can be satisfaction of the circumstances set out in s.443(1)(b) requires consideration of two elements involving temporal aspects.11 The first of these, and the element at issue here, is whether on the evidence, the AMWU ‘has been’genuinely trying to reach an agreement with Bitzer.

Consideration

[7] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union known as The Australian Manufacturing Workers’ Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and The Australian Workers’ Union  12, a Full Bench of the Fair Work Commission (Commission) reviewed relevant Full Bench and Federal Court of Australia decisions concerning the question of whether a bargaining representative has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Relevantly for present purposes, extracts of the decision in Esso are reproduced below:

‘[33] A number of Full Bench decisions have considered the meaning of ‘genuinely trying to reach an agreement’ in s.443(1)(b) . . .

[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were ‘put to one side’; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified. In the course of its decision the Full Bench expressed the following views about s.443(1)(b):

“[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. At the very least one would normally expect the applicant to be able to demonstrate that it 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 has genuinely tried to reach an agreement, cannot be granted.”

[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad)....

[47] The Full Bench decisions to which we have referred were all decided prior to the decision of the Full Court of the Federal Court in J.J Richards Sons Pty Ltd and Another v Fair Work Australia and Another. The applicants in that matter had contended that s.443 should be construed in a way which conditioned its operation upon bargaining having commenced. The Full Court rejected this proposition and held that a protected action ballot order under s. 443(1) of the Act may be made even though bargaining between an employer and employees has not commenced. Jessup J held, at [30]-[31]:

“However, notwithstanding that perception, and notwithstanding my disagreement, in one important respect, with the reasons of the Full Bench, it is not possible to construe s 443(1)(b) as the applicants would propose. I agree with the Full Bench that the contrast between the references to bargaining in Pt 2-4 of the Act, and the words actually used in s 443(1)(b) is striking. I accept that, under s 15AA of the Acts Interpretation Act 1901 (Cth), an interpretation should be favoured which would best achieve the purpose or object of the legislation. That is no basis, however, for the introduction of additional requirements or conditions which might have been, but which have not been, enacted. There is every reason to perceive in s 443(1)(b) a departure from the scheme of regulated bargaining set out by Pt 2-4 of the Act and, in that sense, there is a certain tension with the object referred to in s 3(f). Such a perception, however, would relate to the consistency of the implementation of legislative policy. It would contribute little or nothing to the task of construction which confronted the Full Bench.

In sum, the applicants’ case really amounts to no more than the proposition that the legislature ought, consistent with the structure and policy of the Act as a whole, have conditioned the power to make an order under s 443 upon the circumstance of bargaining having commenced. However, that was a step which the legislature did not take, and it is a step which FWA could not take. There was no jurisdictional error in the protected action ballot order made by FWA on 16 February 2011 and confirmed by the Full Bench on 1 June 2011.”

[48] As to the question of whether a bargaining representative has been and is genuinely trying to reach an agreement, Flick J said:

“It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant … is … genuinely trying to reach an agreement with the employer” unless:

• an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and



• the employer has foreshadowed — even in the most general of terms — its attitude as to the proposed agreement.

More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:

• bargaining to have commenced within the meaning of and for the purposes of s 173, found within Pt 2-4 of the Fair Work Act.

So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement … ”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” — on one approach to construction — perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement — let alone genuinely tried to reach agreement.” 

[49] Tracey J agreed with Jessup and Flick JJ that on its proper construction s.443(1) could not be construed in the manner contended by the applicants:

“There is simply no warrant to read into the subsection words of limitation which do not appear. The legislature has required that FWA must make a protected action ballot order if the two conditions prescribed by s.443(1) are satisfied even if bargaining between an employer and employees has not commenced.” 13 [Endnotes omitted]

[8] It seems to me that Esso is a correct statement of the law so far as it applies to the consideration of the circumstances set out in s.443 (1)(b). Although Esso was decided before the enactment of s.437(2A), no party suggested that the construction, application or consideration of the elements of s.443(1)(b) had been altered by that enactment. 14

[9] The foundation underpinning Bitzer’s submission that I cannot be satisfied that the AMWU has been trying to reach an agreement with it, is the conduct of bargaining by Mr Thomas, which is said to have involved a refusal until 19 February 2016 to respond in any way 15 other than by rejection, to proposals put to the AMWU by Bitzer. In other words, it is said that Mr Thomas refused to give reasons or explain why it is that particular proposals that were being advanced by Bitzer were being rejected.

[10] In order to assess the veracity of this contention it is necessary to examine the evidence concerning Mr Thomas’ conduct in bargaining. The following matters do not appear to be in dispute:

• on or about 13 November 2015, Mr Thomas made email contact with representatives of Bitzer in which he advised that a series of claims for the proposed enterprise agreement that had been endorsed by members of the AMWU; 16



• on 26 November 2015 during a bargaining meeting involving the AMWU and Bitzer representatives, Mr Thomas outlined, presented and expanded on the detail the series of claims, numbering 27, being pursued by the AMWU for the proposed agreement; 17



• 26 November 2015 is the notification time for the purposes of ss.173 and 237(2A) of the Act; 18



• the series of claims being pursued by the AMWU was subsequently reduced to writing, then numbering 26, and was sent by Mr Thomas to Bitzer on 30 November 2015 by email; 19



• Bitzer sent a list of the claims that it was pursuing for the proposed agreement to Mr Thomas on 27 November 2015; 20



• a notice of employee representational rights was issued by Bitzer to relevant employees on 1 December 2015; 21



• thereafter the AMWU and Bitzer engaged in bargaining meetings on 11 December 2015, 5 February 2016, 19 February 2016 and 4 March 2016; 22



• since 19 February 2016 the AMWU has been and is genuinely trying to reach agreement with Bitzer. 23

[11] A key element to Bitzer’s submission that the AMWU had not, prior to 19 February 2016, been trying to reach an agreement with it is the evidence given by Mr Peter Gibson, the Managing Director of Bitzer about the bargaining meeting held on 5 February 2016. His evidence was as follows:

‘On 5 February 2016, Mr Rosso, Mr Woodhead, Ms Perez and I met with Thomas, Mr Caolboy and Mr Wong. Thomas advised he had met with the Members and "touched on" both the Applicant's and Respondent's log of claims. Thomas advised all that had been agreed on was that the proposed enterprise agreement would be for a length of 3 years and the Members otherwise reject the Respondent's position. Mr Rosso asked for clarification of the term "reject” and asked if there was any counter proposals, or any further details that would afford the Respondent a better understanding of the Applicant's position. Thomas responded with words to the effect of “The company needs to put something forward as all we have agreement on is 3 year term. We have 27 claims fully loaded and the company has 17 claims. The question is how we come across on something we can all agree on.”Mr Rosso said words to the effect of “It would appear we arepoles apart and we need to work together to find a solution.” The parties then took a 5 minute break from discussions.

Upon returning from the break Mr Rosso advised the Respondent was going to table a revised company position of claims and then asked that the revised position be taken to the Members and requested a detailed reply at the next Enterprise Bargaining meeting. Thomas responded with words to the effect of "I don't have to go through an explanation - if the people don't like what they see I can't move from that. My intent is to go through the process and doesn't stop us from negotiating." Mr Rosso responded with words to the effect of "The key is to keep the dialogue open." Thomas replied "I'm reachable on telephone to discuss". Mr Rosso then proceeded to verbally deliver the Respondent's revised log of claims. Thomas then requested the Respondent's revised position to be provided in writing and further requested a revised position to be provided on the Employee's (sic) log of claims as well as information on Incentive Scheme before next proposed mass meeting with employees. Mr Rosso advised that the Respondent has addressed some of the Employee's (sic) claims in its revised position. Thomas then said words to the effect of "The boys are not happy, this not going the way it should." Thomas requested to meet with the employees again on 11 February 2016 at 9.30am which the Respondent agreed to. Mr Rosso then proposed the 19 February 2016 at 1.30pm for the next Enterprise Bargaining meeting which was accepted by Thomas.’ 24

[12] Mr Gibson was not cross examined about his version of events of the meeting of 5 February 2016, although Mr Thomas gave evidence that the following occurred at the meeting:

‘Could you just expand on what happened at the 5 February meeting?---Well this meeting all we heard was the company had agreed again for the three year term. The company, on our claims they did not - there was no discretion on our claims. All the reference was when we kept asking for our claims, the company kept saying to us well we're responding to with our claims, which was the company's claims. I said that's not negotiating in good faith, you still need to give me a response to my claim. By just saying you ought to reject it in tandem with yours that's not - we're not making much progress and it's hard for me to go back to members and say how do we go further.’ 25

[13] During cross examination, Mr Thomas gave the following explanation of his conduct prior to 19 February 2016:

‘It's true to say that until 19 February no discussion of possible variation of those claims, changes to those claims, took place between you and any company representative. That's correct, isn't it?---That's correct. Like I provided the company a log of claims already, likewise the company provided a log of claims to be back already, right.

That's right. Sorry, just to make clear that answer. Your log of claims on the union's side was 26 items that you read out on 26 November 2015?---That's right, yes.

You've also given evidence in examination in-chief that on 19 February you had a discussion with Mr Woodhead and Mr Rosso and Mr Gibson present in which you canvassed altering the union's claim from 8.6 per cent to 6.8 per cent. You had that discussion, didn't you?---Yes, I did.

But I'm suggesting to you that that's the first occasion on which any compromise on the 26 items came from side. Do you agree with that?---Yes, and so did the company too, it just wasn't me. The company - the company - just a minute. The company had dropped their claim so in vice versa we dropped the same back.

In fact when asked to consider or negotiate some of those items in your 26 items that stated on 26 November, you gave answers including:

“I don't have to go through an explanation. If the people don't like what they see, I can't move from that.”

You said that to - - -?---I did not say, all I said to the company very clearly was I can only explain what I have to but ultimately the members will make a decision on what they decide to do. Because end of the day as an organiser my role responsibility is to explain to the members what it is. If we feel at some stage during the - during the present negotiation that there is some opportunity that it can work feasibly with both sides, then we don't recommend but we suggest to employees what it is. But ultimately, whatever I do the employees are the ones who make the decision, not me. So I was just being as honest and transparent as I can when I said the employees will make the decision, not me.

I'm suggesting to you that you didn't provide any kind of explanation, even though asked prior to 19 February. Do you understand that question?---No, I don't - I think you're wrong.

Mr Gibson will give evidence in this case and he will say that only after the company's opposition to the ballot order was known to you did any real negotiation take place. Do you agree with that?---I don't have to worry about that, we've had four meetings, we had five meetings and we negotiated every step of the way.

Could I take - - -?---The company was equally - - -

Sorry?---Sorry.

I'm sorry, I interrupted you, please go on?---I'm sorry, yes. As much as you say the company - we did not move, the company's not moving and they're supplying their statement from before where they've got all the claims, like I said to you, the company has moved from 1.2 to 2 per cent.

Yes?---They've got three - remaining claim 2 to claim 26, the company has still openly said we reject those claims and those claims go in reference to our claims. So realistically, if you say we're not bargaining then I think it's vice versa too.

I'm suggesting to you that what you were asked in meetings with the company, and I'll take you to particular meetings in a moment, was you were asked to provide a response on behalf of the union members and you declined and stated words to the effect of "Those matters are rejected", meaning the employer's log of claims was rejected. Do you agree with that?---I said the employees rejected your claims. I went through the claims explaining what they were comfortable and what they're not comfortable about, right.

Sorry, I think we might be having a misunderstanding. I don't mean to talk over you?---That's all right.

But I think I might need to put my question again. I'm suggesting - not to your members, leaving the members to one side for the moment, that in meetings with the EBA group from the employer - - -?---Yes.

You stated only that their requests - that the 17 matters that the employer put were rejected, and you stated no more than that. Do you agree with that?---I don't agree with that.

The second point I wish to do is to say that when asked for a response to the employer's log of claims you declined and said, "I don't have to give an explanation". Do you agree with that?---No, I did not. I explained.

That changed on or about 19 February 2016, do you agree with that?---No, I gave them a response earlier.

I understand your point.

. . .

MR DONAGHEY: I'm going to suggest to you that on the 5 February 2016 meeting, Mr Rosso asked for an explanation of the 26 items then in front of him and you responded with the words:

“I don't have to go through an explanation. If the people don't like what they see, I can't move from that.”


Those are your words, aren't they?---No, I did not say that.’ 26

[14] Mr Thomas also gave the following evidence in response to questions posed by me:

‘THE DEPUTY PRESIDENT: Mr Thomas, when did you give this earlier response, do you say?---The previous meeting, when I had the previous meeting with the company.

Which was when?---On 5 February when I had the meeting with the company.

What did you say?---I said to the company, initially I said to them the members have unanimously rejected your claims and the company said to me can I - sorry, can you explain to me what it is. So I went through the process and I explained to the company what the claims were. I done the same last week too.

No, no, what did you say to them?---I went through each - - -

Don't summarise, tell me what you said?---Okay. I said to them clearly the members have rejected your claims and when they asked me can we have an explanation, Deputy President, I said to them on each claim I gave an explanation.

You're summarising again. I want you to tell me what you told them?---I told them exactly what I just said to you, Deputy President. All I'm saying is - - -

If what you said to - I understand what you're telling me is that during that meeting you gave an explanation as to why particular claims were rejected?---Yes. That's correct.

I want you to tell me what that explanation was. What explanation did you give the company?---I said the members are not happy with your claims because your claims are undermining their conditions and your grandfathering stopped which is actually giving a two day system. So that's what your claims are saying so people are unhappy about it.’ 27

[15] Bitzer submitted that I should prefer the evidence of Mr Gibson to that of Mr Thomas. 28 It seems to me unnecessary to make a finding that the precise description of the words attributed to Mr Thomas by Mr Gibson during the meeting of 5 February 2016 is accurate. I do, however, accept the general tenor evident in the evidence given by Mr Gibson about the meeting on 5 February 2016. It seems to me that for the most part, despite denying the words attributed to him, Mr Thomas’s evidence is consistent with the tenor of the meeting described by Mr Gibson. That tenor being that Mr Thomas simply indicated that Bitzer’s proposals were rejected by the members with explaining the reasons for the rejection.

[16] It seems palpably clear from the evidence given by Mr Thomas that he fails to properly understand the nature of the good faith bargaining requirements imposed on a bargaining representative and relevantly the requirement to give reasons for the bargaining representative’s responses to proposals put by other bargaining representatives. 29 It is the reasons for the response that was being sought by Bitzer from the AMWU. On Mr Thomas’ own evidence he told Bitzer ‘I said the employees rejected your claims. I went through the claims explaining what they were comfortable and what they're not comfortable about . . .’30On any view, this is a response not an explanation or reason for the response.

[17] Although I note that Mr Thomas gave the following belated response to questions from me about the explanation that he gave to Bitzer on 5 February 2016:

‘I said the members are not happy with your claims because your claims are undermining their conditions and your grandfathering stopped which is actually giving a two day system. So that's what your claims are saying so people are unhappy about it,’ 31

I do not accept that this is what he said during the meeting. Mr Thomas had ample opportunity during examination in chief, during cross examination and during earlier questions from me to give this explanation. That he gave it in the circumstances that he did after having repeatedly failed to provide that explanation seems to me to bear all the hallmarks of a recent invention given under pressure rather than an accurate depiction of his utterances during the 5 February 2016 meeting.

[18] It seems to me on the totality of the evidence that Mr Thomas did not provide a reason or reasons for the AMWU’s responses to Bitzer’s proposals during the meeting on 5 February 2016.

[19] But it does not follow that Mr Thomas’ failure or refusal to provide a reason or reasons for the AMWU’s responses to Bitzer’s proposals means that the AMWU has not been genuinely trying to reach an agreement with Bitzer. While there is a relationship between good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms and a party may not meet a particular good faith bargaining requirement but nevertheless be genuinely trying to reach an agreement. 32 The whole of the circumstances need to be considered. In this case I do not regard Mr Thomas’ failure as fatal for the reasons which follow.

[20] First, it is apparent to me based on the evidence given by Mr Thomas that he does not fully grasp the difference between a response and a reason for the response. To that extent, I consider that his conduct in failing to provide reasons for the AMWU’s response is borne out of a lack of understanding rather than belligerence.

[21] Secondly, there is no evidence of any ulterior motive or of a collateral or extraneous purpose or intent,  33 which might otherwise add weight to Bitzer’s contention.

[22] Third, there is the evidence of that which was asked of Mr Thomas during the meeting of 5 February 2016. As is evident from Mr Gibson’s evidence earlier reproduced, a revised Bitzer position was put to the AMWU during the meeting of 5 February 2016 and Bitzer requested ‘a detailed reply at the next Enterprise Bargaining meeting’. 34 It is in this context, that is, a request to provide a detailed explanation of the next meeting, that the responses attributed to Mr Thomas must be viewed. Indeed, it is clear on the evidence given by Mr Gibson that utterances attributed to Mr Thomas were made in response to the request for a detailed reply at the next meeting.35 Mr Gibson also gave the following evidence:

‘On 8 February 2015 (sic), Ms Perez sent an Email Thomas providing documents for communication to the Members namely:-

a. The Respondent's revised log of claim

b. The Respondent's response to employee log of Claims

c. The Respondent's letter to EBA Staff which would be posted on the Respondent's notice boards.

Further, Ms Perez requested in the email to Thomas that the Applicant ensure at the next meeting on 19 February 2016 that the Respondent be provided with a detailed response explaining Members' positions.’ 36 [Reference to exhibits omitted]

[23] This evidence shows that Bitzer was seeking an explanation of any response to its revised position which it had articulated on 5 February 2016, and committed to writing on 8 February 2016, not immediately, but at the next bargaining meeting which was then scheduled for 19 February 2016.

[24] It seems common ground that Mr Thomas did provide a response and an explanation during the bargaining meeting held on 19 February 2016. Mr Gibson gave the following evidence about that meeting:

‘On 19 February 2016:

a. Mr Rosso, Mr Woodhead, Ms Perez and I met with Thomas, Mr Caolboy and Mr Wong for a scheduled meeting. Mr Rosso's opening statement to Thomas was words to the effect of "You met with the members last week, so can you now tell us what was the outcome of that meeting?" Thomas replied with words to the effect of "We have talked to our members and the claims are rejected'. Thomas then went through each point, saying the members rejected each of them and indicating the ones he deemed "important”. He then said words to the effect of "Bitzer is not negotiating." Believing this to be incorrect, I replied "We have provided the revised log of claims, not the union”. Mr Rosso then added "How can we understand your position if we cannot understand the basis on which you are rejecting every point?" Thomas then asserted that a pay rise based on CPI was not acceptable, and that Bitzer should provide a further counter-offer.

b. Approximately 5 minutes after the meeting had concluded and Thomas, Mr Caolboy and Mr Wong had left the room, they returned, saying words to the effect of "We feel we can negotiate the 8.6% pay rise to a 6.8% pay rise". Given the three men had only briefly left the room and could not have possibly been able to speak to any of their members in that time (and notwithstanding the original position was 8% not 8.6%), I replied "You haven't conferred with your members yet, we will give you whatever time you need to do this to meet with them to speak properly.’ 37

[25] Mr Gibson also agreed with the proposition put to him by Counsel for Bitzer during the hearing that the AMWU’s attitude had changed after 19 February 2016. 38 The reference to ‘after 19 February 2016’ in the proposition, and the answer given by Mr Gibson needs to be understood in the context of an earlier proposition put by Counsel for Bitzer to Mr Thomas,39 which was to the effect that Mr Gibson would give evidence that it was only after Bitzer’s position to the ballot order was known to Mr Thomas did any real negotiation take place.40 It is a matter of record that Bitzer’s opposition to the grant of a protected action ballot order was communicated to my chambers and to the AMWU by email on the afternoon of 16 February 2016.41 It seems to follow that it is suggested by Bitzer that the evidence of the AMWU’s attitudinal change was first exhibited at the 19 February 2016 bargaining meeting. On the evidence, it seems to me that Mr Thomas provided some elaboration on the reason for the rejection of particular proposals of Bitzer and indicated willingness to move on some items. The evidence as to the circumstances between 5 February 2016 and 19 February 2016 is neutral.

[26] It seems to me therefore that the evidence does not support a conclusion that Mr Thomas failed on 19 February 2016 to respond to the request made of him by Bitzer on 5 February 2016. That Bitzer asked Mr Thomas on 5 February 2016, for a detailed response on 19 February 2016, in my view militates against the significance of the failure or refusal by Mr Thomas to do so on 5 February 2016.

[27] Consequently, when I view the evidence in its totality and in context, I am satisfied that the AMWU has been trying to reach an agreement with Bitzer, the employer of the employees who are to be balloted. It is also not in contest and I am satisfied on the evidence that the AMWU is trying to reach an agreement with Bitzer.

Date by which the voting in the protected action ballot should close

[28] During the hearing, I gave leave to the AMWU to amend its application for a protected action ballot order so that the date by which voting in the proposed protected action ballot is to close would be 14 calendar days from the date of any order that is made.  42 This course was not opposed by Bitzer.43 The AEC had earlier raised concerns about the foreshadowed amendment and it was advised by my Associate to amplify its concerns by way of submissions and to provide copies of any such submission to the other parties.44 No submission was received from the AEC. In addition the AEC was advised by my Associate of the grant of leave to amend the AMWU’s application in the manner sought and was given a further opportunity to make any submissions about the issue by midday on 8 March 2016.45 No submissions were received from the AEC by that time, or subsequently.

[29] In support of the timeframe proposed by the AMWU, the AMWU submitted that there were a relatively low number of employees who are to be balloted and the compilation of the roll of voters, the printing of ballot papers and the organising of the vote could take place promptly and so the timeframe proposed was sufficient and appropriate. 46 Bitzer did not oppose the proposed timeframe.47

[30] I have given consideration to the proposed timeframe, and although the timeframe proposed was not opposed, I nevertheless consider the timeframe, in the circumstances, to betoo short. The imposition of a 14 day period would provide the AEC with about eight working days within which to organise the ballot. This is because of the Labour Day (14 March 2016) public holiday and the Easter period (25 March 2016 – 28 March 2016 inclusive) of public holidays which intervene during the period proposed. School holidays also intervene which is likely to impace the resourcing available to the AEC to organise the ballot. I therefore propose to set the date by which the voting will close at 20 calendar days from the date of the order. This is shorter than the period usually requested by the AEC but in my view it appropriately balances competing demands and gives effect to the s.443(3A) of the Act.

Conclusion

[31] For the reasons given, I am satisfied that a valid application has been made under s.437 of the Act and that the AMWU as applicant has been, and is, genuinely trying to reach an agreement with Bitzer, the employer of the employees who are to be balloted. Consequently a protected action ballot order will issue.

[32] A protected action ballot order giving effect decision is issued separately in PR577860.

DEPUTY PRESIDENT

Appearances:

Mr B Terzic for the Applicant.

Mr T Donaghey on Counsel for the Respondent.

Hearing details:

Melbourne

2016.

7 March.

 1   Section 443(1)(a) and (2).

 2   [2013] FWCA 1157 at [7].

 3   See s.440.

 4 Statutory Declaration of Barry Terzic (12 February 2016) at [7]; Exhibit 2 at [6].

 5 See s.437(1) and (2A).

 6   See s.443(2).

 7   See s.443(1)(a).

 8   See s.443(1)(b).

 9 Statutory Declaration of Barry Terzic (12 February 2016) at [7].

 10   Transcript PN 298, PN 303 – PN 306.

 11   Transcript PN 296 – see also Coles Supermarkets (Australia) Pty Ltd v Australasian Meat Industry Employees Union [2015] FWCFB 379 at [45], [48]-[49].

 12   [2015] FWCFB 210.

 13 Ibid at [33]-[36], [47-[49].

 14   Transcript PN 312 – PN 314.

 15   Transcript PN 296 – PN 298, PN 302.

 16 Exhibit 2 at [5].

 17 Ibid at [6].

 18 Statutory Declaration of Barry Terzic (12 February 2016) at [7]; Exhibit 2 at [6].

 19 Exhibit 2 at [8].

 20 Ibid at [7].

 21 Ibid at [9].

 22   Statutory Declaration of Barry Terzic (12 February 2016) at [7]; Exhibit 1; Exhibit 2 at [10], [17]-[18] and [25]; Transcript PN125 – PN126.

 23   Statutory Declaration of Barry Terzic (12 February 2016) at [7]; Transcript PN 213, PN 298, PN 303 – PN 306.

 24   Exhibit 2 at [17] – [18].

 25   Transcript PN 109.

 26   Transcript PN 149 – PN 168, PN 178 – PN 180.

 27   Transcript PN 169 – PN 176.

 28   Transcript PN 297.

 29   Section 228(1)(d).

 30   Transcript PN162.

 31   Transcript PN 176.

 32   Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union known as The Australian Manufacturing Workers’ Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and The Australian Workers’ Union[2015] FWCFB 210 at [18] and the decision cited therein.

 33   See JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963 at [62]-[63].

 34 Exhibit 2 at [18].

 35   Ibid.

 36   Exhibit 2 at [19]-[20].

 37 Exhibit 2 at [25].

 38   Transcript PN 213.

 39   Transcript PN 156 – PN 157.

 40   Transcript PN 157.

 41   Email to Chambers from Claire Kerley, Associate at Dibbs Barker, solicitors for Bitzer, 16 February 2016 at 1:54 pm.

 42   Transcript PN 31 – PN 35, PN 55 – PN 57.

 43   Transcript PN 52.

 44   Email to Chambers from AEC 1 March 2016 at 8:08 am; email from Chambers to AEC 1 March 2016 1:24 pm.

 45   Email from Chambers to AEC 7 March 2016 at 1:40 pm.

 46   Transcript PN 36 – PN 37.

 47   Bitzer did not make any submission opposing the proposed timeframe during the hearing on 7 March 2016 and by email from Chambers dated 8 March 2016 to the parties and the AEC, Bitzer was asked to indicate by midday on 9 March 2016 whether it objected to the timeframe proposed in the amended application. No objection was received by my chambers by the specified time or subsequently.

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