“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Clark Equipment Australia Pty Ltd

[2022] FWC 2483

[2022] FWC 2483

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)
v

Clark Equipment Australia Pty Ltd

(B2022/1372)

COMMISSIONER MCKINNON SYDNEY, 15 SEPTEMBER 2022

Proposed protected action ballot of employees; whether genuinely trying to reach agreement.

1. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) is bargaining for an enterprise agreement with Clark Equipment Australia Pty Ltd (Clark) under the Fair Work Act 2009 (the Act).

1. The proposed agreement will replace the Clark Equipment Australia Pty Ltd Omega Heavy Lift Truck Division Enterprise Agreement 2019 (the 2019 Agreement) which nominally expired on 28 August 2022. Some employees of Clark who will be covered by the proposed agreement are members of the AMWU.

1. On 22 June 2022, Clark issued a Notice of Employee Representational Rights to employees under the Act. The AMWU is a bargaining representative for the proposed agreement. The notification time for the proposed agreement was 22 June 2022.

1. Since bargaining commenced there have been five meetings between Clark and the AMWU about the proposed agreement, on 20 July 2022, 3 August 2022, 17 August 2022, 26 August 2022 and 30 August 2022.

1. By application lodged on 13 September 2022, the AMWU has applied for a protected action ballot order (PABO) pursuant to s.437 of the Act. The group of employees that are proposed to be balloted are those employed in classifications listed in the 2019 Agreement who are members of the AMWU who would be subject to the proposed agreement and for whom the AMWU is the bargaining representative.

1. Clark opposes the making of a PABO on the basis that the AMWU is not genuinely trying to reach agreement. Clark submits that there is incorrect information in the application and that the employees have not engaged in genuine negotiations. The application refers to claims other than wages that “remain outstanding”, but Clark says it is not aware of any other outstanding claims. In relation to wages, Clark submits that its initial offer on 3 August 2022 was rejected with no counter‑offer made by employees. Clark then made a second wage offer on 17 August 2022 with 3 different options. The offer was rejected by employees and a counter-offer was made. Clark did not accept the offer. Clark then made a third and fourth wage offer. Each was rejected with no further offer being made by employees.

1. The AMWU submits that it is genuinely trying to reach agreement; that progress has been made in negotiations and that an impasse on wages does not mean that it is not genuinely negotiating with Clark. The AMWU disagrees that its application contains incorrect information. It refers to three outstanding claims: wage increases, backpay and a term restricting hiring practices and the use of contractors (hiring restrictions claim). On this latter claim, the AMWU submits that its claim is in response to Clark’s claim to lift hiring restrictions in the 2019 Agreement. What it seeks is that there be no change to the relevant term(s).

1. The hiring restrictions claim gives rise to a concern that the dispute is partly about matters that do not pertain to the employment relationship. If that were the case, I would not be satisfied that the AMWU was genuinely trying to reach agreement with Clark in relation to the proposed agreement. However, if the AMWU’s position is no more than a response to a claim made by Clark, it is not a claim – it is the rejection of a claim.

1. There is also the difficulty that limited detail about the ‘hiring restrictions claim’ has been provided and I cannot see a term in the 2019 Agreement that prevents Clark from employing contractors, or individuals who are not members of the union, or those who have skills not contemplated in the 2019 Agreement. The 2019 Agreement only covers employees who it is expressed to cover. It does not apply to employees performing work that is not covered by the 2019 Agreement. The 2019 Agreement does not prevent Clark from engaging contractors and nor does it require that contractors become employees after a fixed period. If the hiring restriction claim is about clause 12 of the 2019 Agreement, this deals with casual and part-time employees. It does not extend to cover people who are not employees, because only employees can be covered by an enterprise agreement.

1. Section 437 of the Act deals with when a bargaining representative can apply for a PABO. Section 437(1) provides:

“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 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.”

1. Except if there has not been a notification time in relation to the proposed agreement, the Commission must make a PABO in relation to employees who will be covered by a proposed agreement in the circumstances set out in s.443.

1. Section 443 relevantly provides:

“443 When FWC must make a protected action ballot order

(1)   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) 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)   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.

(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.”

1. The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular bargaining. 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. Neither is it appropriate nor possible to establish rigid rules for the required point of bargaining that must be reached. All of the relevant circumstances must be considered in assessing whether an applicant for a PABO has met the test in s.443 of the Act. This will frequently involve considering the extent of progress in negotiations, and the steps taken in order to try and reach an agreement.[1]

1. The essence of Clark’s argument is that the failure of the AMWU and its members to engage meaningfully in wage negotiations is inconsistent in genuinely trying to reach an agreement, particularly in circumstances where the AMWU has not revised its position since 17 August 2022.

1. I am satisfied that that the AMWU is genuinely trying to reach agreement with Clark in relation to the proposed agreement. Members of the AMWU are holding firm on what is presently a ‘take it or leave it’ wage claim, but the AMWU remains willing to consider further offers made by Clark and to put these to its members. Clark has also made its best offer and is standing firm, while continuing to develop options for employees to consider.

1. Clark’s desire that the AMWU adopt a more reasonable stance in bargaining is both understandable and unsurprising. Equally, the AMWU is entitled, subject to the Act, to apply for the order it now seeks. The fact that the AMWU is adopting a particular stance in bargaining is not, without more, a basis for concluding that the AMWU has not been and is not genuinely trying to reach agreement with Clark.

Conclusion

1. I am satisfied that the AMWU has been and is genuinely trying to reach agreement with Clark. There is no other statutory pre-condition to the making of a PABO that has not been met in this case.

1. A protected action ballot order will be made and is separately issued in PR745917.

COMMISSIONER

Appearances:

B Munoz on behalf of the Australian Manufacturing Workers’ Union.
J Houston on behalf of the respondent.

Hearing details:

2022.
Sydney (by video):
September 15.

[1] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; (2009) 189 IR 407 at [32]-[33]; 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)[2015] FWCFB 210 at [34]-[35].

Printed by authority of the Commonwealth Government Printer

<PR745916>