“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Motors Tas Pty Ltd T/A Webster Trucks
[2018] FWC 7149
•23 NOVEMBER 2018
| [2018] FWC 7149 |
| FAIR WORK COMMISSION |
REASONS FOR 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
Motors Tas Pty Ltd T/A Webster Trucks
(B2018/1055)
COMMISSIONER LEE | MELBOURNE, 23 NOVEMBER 2018 |
Proposed protected action ballot of employees of Motors Tas Pty Ltd t/as Webster Trucks - whether AMWU has been and is genuinely trying to reach agreement - application granted.
[1] This matter was the subject of a hearing before me on 19 November 2018. At the conclusion of the hearing I determined that I was satisfied that the requirements of the Fair Work Act 2009 (the Act) had been met. In particular that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) were genuinely trying to reach an agreement and that I would issue the protected action ballot order sought. I issued a decision [[2018] FWC 7087] and order [PR702441] in the matter on 19 November 2018. I indicated I would provide further written reasons for my decision. Those reasons follow.
[2] The Respondent objected to the application on the grounds that the Fair Work Commission (the Commission) cannot be satisfied that the AMWU has been and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[3] At the hearing Mr Bruce Davey, General Manager of the Respondent appeared for and gave evidence on behalf of the Respondent. A witness statement was also filed by Ms Linda Swinton, Group Manager, HR and Safety for the Respondent. Ms Swinton did not give evidence at the hearing and her witness statement was accepted as evidence without objection from the AMWU on the basis that paragraph 9, on which they would otherwise seek to cross-examine Ms Swinton on, was deleted. This was acceded to by Mr Davey. Ms Abha Devasia appeared on behalf of the AMWU and Mr Jacob Batt gave evidence for the AMWU.
[4] The Respondent conducts a business which operates in Tasmania with service centres in Hobart, Launceston, Burnie and Devonport. The Respondent operates as the authorised dealer for Isuzu, Mack, UD and Volvo Trucks and provides state-wide service, repair and parts support for the Tasmanian trucking community, including a 365 days per year 24/7 call-out and heavy vehicle towing service. Certain employees of the Respondent are covered in their employment with the Respondent by the Motors Group Tasmania Pty Ltd T/As Webster Trucks Enterprise Agreement 2014 – 2017 (the Agreement). The nominal expiry date of the Agreement was 15 February 2018. Some of these employees are members of the AMWU.
[5] In the statutory declaration of Mr Batt filed with the application, Mr Batt stated that the company agreed to bargain on 29 January 2018 and that this was the date of notification time for the proposed agreement. At the hearing, Mr Davey gave evidence that the notification time for the proposed agreement was either later January or early February 2018. 1
[6] Since bargaining commenced there have been a number of meetings between representatives of Respondent and the AMWU about the proposed agreement from February 2018 through to November 2018.
[7] By application lodged on 14 November 2018 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 employees of the Respondent who are members of the AMWU and for whom the AMWU is a bargaining representative, and who will be covered by the proposed enterprise agreement. The Respondent opposed the making of a PABO on the grounds that the Commission cannot be satisfied that the AMWU has been and is genuinely trying to reach an agreement.
[8] Section 437 of the Act enables a bargaining representative to 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.”
[9] Excepting the restriction on making an application in ss.437(2A) and 438(1), 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. There is no suggestion by any party that the restrictions apply in this matter. 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) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
• the name of each applicant for the order;
• the group or groups of employees who are to be balloted;
• the date by which voting in the protected action ballot closes;
• the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
• 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…”
[10] In his decision Construction, Forestry, Mining and Energy Union v Kane Constructions Pty Ltd, 2 Deputy President Gostencnik summarised the approach to applying this section of the Act, with which I agree, as follows:
“[7] 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.
[8] To the extent that it may suggested that there has been a failure to meet good faith bargaining requirements, it must be borne in mind that although there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. An applicant for a PABO may not meet a particular good faith bargaining requirement, but may nevertheless be genuinely trying to reach an agreement.” 3 (Endnotes omitted)
[11] The Respondent submits that the AMWU is not genuinely trying to reach an agreement. As mentioned above, evidence as to the conduct of negotiations was provided by Mr Davey and Ms Swinton for the Respondent and Mr Batt of the AMWU. Many of the salient facts are not in contest as to the conduct of the bargaining over the course of this year. However, there are disputed facts surrounding the process of bargaining in November.
[12] Mr Batt set out in his statutory declaration attached to the application his recollection of the conduct of the bargaining as follows:
“• The AMWU through 3 officials conducted site visits to speak with members about issues and concerns and the new EBA, and from this developed a log of claims that was endorsed by the membership.
• The company agreed to bargain on 29 January 2018 by Linda Swinton HR sending a meeting request via outlook calendar to Jacob Batt for an EBA negotiation meeting.
• We presented a log of claims to the company at the first EBA negotiation meeting on 6 February 2018 held at the company’s premises.
• The AMWU and its site reps for the negotiation met with the company on four occasions before a vote was held, being 6 February 2018, 2 March 2018, 22 March 2018, 26 April 2018.
• On 26 April 2018, the company notified the AMWU at the EBA negotiation meeting and subsequently via email that they planned to send their offer out to a vote.
• On 13 June 2018 the company presented a draft EBA to the AMWU via email.
• On 20 June 2018 another meeting was held around the contents of the draft EBA matching up to the discussions held to date
• On 27 June 2018 a revised draft EBA was sent via email to the AMWU.
• The company held information sessions on the EBA offer to its employees at Burnie and Devonport on 10 July, at Launceston on 11 July and at Hobart on 12 July.
• Greg Lee from AMWU subsequently met with members at Burnie, Devonport and Launceston and Jacob Batt was present at Hobart and briefly spoke to members at Hobart.
• On 20 July 2018 a vote was held on all four sites for the proposed EBA.
• On 24 July 2018 the vote was counted at the Derwent park offices, with the vote unsuccessful.
• An EBA meeting was held on 17 August 2018 following the unsuccessful vote.
• The AMWU’s log of claims to the employer which includes the following items which remain outstanding from the unsuccessful EBA are:
o Rate of pay increases;
o Rostered Days Off;
o Leave loading; and
o On-call allowance figure;
• In the negotiations, the AMWU has been willing to discuss the claim with the employer and we have duly considered any offer or counter proposal which the employer has made.
• After a meeting I would, along with the AMWU negotiation reps on-site and other AMWU officials, conduct report back meetings on-site with the members and seek their feedback on any offers by the employer and direction on where negotiations should be heading.
• There is a problem with being able to attract and keep tradespeople to the business. The union is currently seeking a three-year agreement with an annual wage increase of 5.0% for the first year of the agreement (backdated to 1 July 2018) and higher than CPI for each year thereafter and one RDO a month. The company’s position is also for a three-year agreement with annual wage increase of CPI for each year of the agreement, based on the March CPI for Hobart and no RDO.
This position has been rejected by AMWU members on site.
• On 12 November 2018 another negotiation meeting was held with the company putting forward a new offer of an extra 2% increase to wages upon certification of the EBA, and CPI increases at 1 July each year, tool allowance kept factored into the base rate and no RDO. 4
[13] The Respondent confirmed the summary above is an accurate representation of events. 5 However the Respondent disputes paragraph 19 of the statutory declaration of Mr Batt which reads as follows:
“AMWU delegates and on-site negotiation reps then spoke with members on the new offer and wanted to continue with lodgement of the protected action ballot.”
[14] In disputing this characterisation of what occurred, Mr Davey’s evidence is:
“• The purpose of the meeting was for the Company to respond to the AMWU demands, and in particular to explain the reasons why the Company was not in a position to agree to a Rostered Day Off (RDO) per month, and to put a counter proposal to the AMWU for consideration by its’ members.
• Mr Batt informed the Company from the outset of the meeting that it was the intention of the AMWU to make an application for a protected action ballot, regardless of the outcome of the meeting. This demonstrates that the AMWU did not enter into the meeting in the spirit of good faith bargaining, nor reaching agreement.
• During the meeting, the Company outlined its’ position in relation to RDO’s and discussed in broad terms the challenges faced by the industry, and the Company’s financial performance. The Company also outlined the significant investment that it makes in relation to training, including apprentice training, and health and safety.
• The Company proposed a counter offer which involved a 2% wage increase to apply from the date the Enterprise Agreement became effective, additional to the previously proposed annual CPI increase. A CPI increase was passed on effective 1 July 2018. Of significance, the Company went to considerable length to explain the reasons why the Company was not in a position to agree to an RDO arrangement or to offer further increased benefits.
• I advised that it was my intention to travel to each of the worksites to conduct information sessions for employees to explain the Company’s position and to outline the Company’s counter offer.
• Mr Batt clearly indicated in our meeting on Monday the 12th November that he would take the counter offer to his members after I had been around the state and briefed the Company’s employees.
• It was agreed that I would meet with Hobart employees no later than Thursday 15 November 2018, and Mr Batt indicated that he would speak to the staff on Friday 16th November. A Right of Entry Notice supporting this proposed visit was received at 10.30am on Thursday 15 November 2018.
• I further indicated that I would visit the northern branches on Tuesday/Wednesday next week and Mr Batt advised that he would have a delegate visit after those dates.” 6
[15] The evidence of Ms Swinton was broadly consistent with Mr Davey though there was no evidence in Ms Swinton’s statement as to the alleged statement of Mr Batt referred to in paragraph 7 of Mr Davey’s statement. That is, that “Mr Batt informed the Company from the outset of the meeting that it was the intention of the AMWU to make an application for a protected action ballot, regardless of the outcome of the meeting”.
[16] During the hearing, Mr Davey elaborated on his evidence stating that after the meeting on 12 November Mr Batt “…decided to go out by phone call to the union delegates, breaking that agreement that we had, and try to rush through an outcome that was contrary to our agreement”. 7 When asked what the agreement was that Mr Batt broke, Mr Davey referred to what he considered to be an agreement that he (Mr Davey) would talk to employees first so they were in a “fully informed position”.8 As a result, Mr Davey is concerned that employees have not heard his perspective on why he has not agreed with the AMWU’s claims regarding RDO’s.9
[17] In contrast, Mr Batt’s evidence was as follows:
“At the commencement of the meeting I was invited by Bruce Davey to open the meeting. I outlined the position of our members in relation to the negotiations and that the last offer had not been acceptable. I said words to the following effect:
“I have endorsement from our members to take protected action to progress our claims. Obviously, this is a long process and we are here to find a resolution. Even if we were to lodge for and take protected action, we would of course through this process be continuing to talk to try to find a resolution”
I reject the assertion made in Bruce Davey’s statement at paragraph 7 that it was the “intention” of the AWMU to undertake protected action regardless of the outcome of the meeting. I was advocating the position of our membership at that time.” 10
[18] Mr Batt maintained, when questioned during the hearing, that he made the above statement. He confirmed that he opened the meeting by confirming that he had endorsement from the members to lodge a PABO but that they would continue to have discussions. 11 Mr Davey was adamant that Mr Batt said that the union would be pursuing the action irrespective of the counter offer being proposed by the company.12
[19] It is not in contest that the company outlined their position at the meeting consistent with paragraphs 8-9 of Mr Davey’s statement and paragraphs 10-11 of Ms Swinton’s statement. Nor does it seem to be in contest that there was a discussion about how the RDO system, if agreed, might operate.
[20] Mr Batt then claims that he said to Mr Davey words to the following effect: “I will take what you have offered to our members. I don’t think it will be good enough, and I’ll be honest, I don’t think the members will either”. 13 This evidence was not challenged.
[21] Mr Batt then sets out at paragraph 14-19 of his statement that he made a number of calls to delegates providing an update from the 12 November meeting and the most recent offer made by the company. Mr Batt claims he asked the delegates to speak to members to find out if the offer was acceptable and whether, in light of what the company had put, if they still wish to proceed with lodging a PABO. Ultimately, his feedback was that they did and so the AMWU lodged the PABO the next day.
[22] Mr Batt did not dispute when asked during the hearing that the program of meetings set out in the evidence of Mr Davey were scheduled to occur. However, Mr Batt disputed that there was an agreement that he would not lodge a PABO after the offer had been received. The key exchange on this point during cross-examination of Mr Batt by Mr Davey was as follows:
“Mr Batt, in clause 16 if your first statement you indicate you're going to conduct report-back meetings on site with member and seek their feedback on any offers by the employee and direction of where the negotiations should be heading. My question is why did you break our agreement to take the company offer to the members before I'd briefed the staff?---Well, I – I reject that assertion that was placed in that question. The – said at the meeting was, you know, members at any point through this process that were continuing through, and you continue through the process with a protected action ballot, and with potentially protected action the process continues. But members will change – you know, potentially could change their mind or they may come to a resolution at any point. So the plan was to go and see the members after the company had spoken with them to see if there had been any change, but that doesn't preclude me from seeking the views of members after we'd already received the offer to proceed with lodging for a protected action. It just means that the company can go forward and talk to them at any point. But I never precluded myself from going and speaking with members prior to the company there in order to lodge a protected action ballot to garner their views, but their views may change after the company has spoken with them, as well.
Mr Batt, clause 16 clearly states that you would attend onsite meetings. Don't you agree that in this case you've broken that agreement?---Well, I have gone and met with members on site on Friday, after the company spoke with members in Hobart on Thursday. Launceston hasn't been done yet. But I haven't broken any agreement because it wasn't that I couldn't seek feedback from members after the offer put forward on Monday. There was no agreement in place about that. It was just about when I would go and speak to the members after the company had.
Why did you change tactic to have phone call conversations with delegates prior to seeing the company presentation to explain the affordability of the RDO's?---Well, after meetings I would normally – you know, not just in these negotiations but in all negotiations, seek feedback and clarity from delegates and reps and members. I don't think I changed any tactic.
Are these onsite meetings to ensure your members have a full understanding on the issues being tabled by the company and to ensure you're genuinely bargaining to reach agreement?---Sorry, could you repeat that?
Are the onsite meetings that you hold are to ensure your members have a full understanding on the issues being tabled by the company, and to ensure you are genuinely bargaining to reach agreement?---Yes.
So again, why would you break this process and continue with your action prior to having those onsite meetings?---Because I'd already – well, I don't believe I actually – I did not break any agreement in that, at all. I sought feedback through reps and members, going out and talking to member and garnering what their thought was, and the process continues. The Hobart members, they have not decided to come to a resolution on the offer – the feedback that I received on Friday, but the process was continuing, and still is.” 14
[23] I put to Mr Davey during the hearing that in light of the fact that there was an agreed meeting schedule, the evidence is that he assumed that the AMWU was not going to lodge a PABO. Mr Davey agreed that was “…one way of putting it”. 15
[24] Mr Davey was asked during the hearing if the draft enterprise agreement would still be circulated to all of the worksites regardless of whether there is a PABO or not. Mr Davey agreed that it would and that he hoped that the process of bargaining would continue. 16
CONSIDERATION
[25] There is a conflict on the evidence as to what Mr Batt said at the outset of the meeting on 12 November 2018. I am satisfied that Mr Batt made a statement at the start of the meeting to the effect of restating the position of his members, being that they have endorsed protected action to progress the claims. Further, that if they lodged an application and took protected action they would continue to talk with the company.
[26] This is consistent with his uncontested evidence that he contacted delegates by phone subsequent to the meeting and canvassed the position of the capacity to lodge an application for a PABO and sought their views. Mr Batt stated at the meeting the position of the members was to lodge an application for a PABO, he then tested whether they wanted to change this position in light of the changed offer from the company and they said they did not.
[27] Mr Davey assumed this process would not occur until the meetings scheduled had been completed. This was not an unreasonable assumption to make in the circumstances. However, an assumption is not a commitment or an agreement. Essentially, the factual situation is that there has been ongoing bargaining since around February 2018 with offers, counter offers and numerous meetings. There has also been a proposed agreement put to employees that was rejected. At the meeting on 12 November 2018 the company put a further offer and assumed that there would be no application for a PABO made until the end of the meetings that were agreed to be scheduled. However, the evidence demonstrates that the AMWU is still participating in the agreed meetings and that a draft agreement is to be circulated. At least to that extent the bargaining process continues.
[28] Considering all of the circumstances, there is no basis to find the AMWU is not genuinely trying to reach an agreement. There is no evidence of some other motivation of the AMWU, other than trying to reach an agreement. Considering the progress in negotiations and the steps taken to reach an agreement it is abundantly clear that the AMWU has been and is trying to reach an agreement.
[29] To the extent that the Respondent asserts that the AMWU has not bargained in good faith by making application for a PABO at this juncture, they are at least to some extent conflating the concepts of genuinely trying to reach an agreement and good faith bargaining. On the evidence, I think it is unlikely that the AMWU is not bargaining in good faith for the reasons set out by the Respondent, however, even if that were so, it would not alter my view that the AMWU is genuinely trying to reach an agreement.
[30] In my view, the evidence establishes that the AMWU has been and is genuinely trying to reach agreement with the Respondent and I am so satisfied.
[31] The AMWU seeks that the date by which voting in the protected action ballot closes is 20 calendar days from the date of my order. The AEC maintains a preferred period of 25 working days. I am not persuaded that there are any particularly important factors which would warrant a departure in this case from the AEC’s preferred timeframe for the organisation and conduct of a ballot.
Conclusion
[32] For the reasons given above, I am satisfied that the AMWU as bargaining representative for the proposed agreement and application for a PABO, has been and is genuinely trying to reach agreement. I am satisfied and it was not in contest that the other statutory criteria have been met.
[33] A protected action ballot order has been made and is separately issued in PR702441.
COMMISSIONER
Appearances:
A Devasia for the Applicant
B Davey for the Respondent
Hearing details:
2018
Melbourne:
19 November.
Final written submissions:
16 November 2018
Printed by authority of the Commonwealth Government Printer
<PR702531>
1 PN231 - PN234
2 Construction, Forestry, Mining and Energy Union v Kane Constructions Pty Ltd [2016] FWC 8002
3 [2016] FWC 8002 at [7] – [8]
4 Form F34B – Statutory declaration in support of an application for a protected action ballot order at Q2.1 [1] – [18]
5 Respondent’s submissions dated 15 November 2018 at p.1
6 Exhibit A1, Witness Statement of Bruce Davey at [6] – [13]
7 PN75
8 PN76
9 PN79
10 Exhibit R1, Witness Statement of Jacob Batt at [8] – [9]
11 PN214 – PN215
12 PN112
13 Exhibit R1, Witness Statement of Jacob Batt at [13]
14 PN171 – PN176
15 PN227 – PN228
16 PN97 – PN99 and PN119
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2
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