“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Pacific Marine Batteries Pty Ltd T/A PMB Defence Batteries

[2019] FWC 2736

[2019] FWC 2736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 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
Pacific Marine Batteries Pty Ltd T/A PMB Defence - Batteries
(B2019/328)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 1 MAY 2019

Proposed protected action ballot of employees of Pacific Marine Batteries Pty Ltd

[1] This application to the Fair Work Commission (the Commission) was made on 18 April 2019 by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU or the Union) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Pacific Marine Batteries Pty Ltd T/A PMB Defence - Batteries (PMB Defence or the Respondent employer).

[2] PMB Defence manufactures batteries for Australia’s Collins Class Submarines.

[3] This application concerns the negotiation of a proposed replacement agreement for the manufacturing workforce of PMB Defence in South Australia (the relevant employees).

[4] On 24 April 2019 the Respondent employer advised the Commission that it opposed an order being made.

[5] I issued directions for the filing of material in advance of the hearing, which were complied with by both parties. I conducted a hearing on 26 April 2019. I reserved my decision.

[6] The Applicant submits that it has complied with all formal requirements in the FW Act concerning the making of applications for a protected action ballot order. It says that it is and has been genuinely trying to reach an agreement with the employer over a prolonged period of time on behalf of its members who work in the manufacturing arm of the employer’s business. It says that the statutory scheme in Part 3-3 Division 8 of the FW Act requires the making of an order irrespective of whether the employer opposes it or considers it to be undesirable or unhelpful to negotiations.

[7] The Respondent employer, represented by the Australian Industry Group, contends that the AMWU has not satisfied the requirement in section 443(1)(b) of the FW Act that it “has been, and is genuinely trying to reach an agreement”. It refers to conduct in the course of bargaining, including conduct by the Union in making previous protected action ballot applications and in recent dealings with the company.

[8] I have both oral and documentary evidence before me. I received sworn evidence from the Assistant State Secretary of the AMWU Mr Peter Bauer in the form of a statutory declaration of 18 April 2019 1 which accompanied the application. At the hearing Mr Bauer gave further oral evidence and was cross examined on his statutory declaration and that evidence. I received sworn oral evidence (including a witness statement2) from a company officer, Ms Allison Lang (Human Resources Manager) who also was cross examined.

[9] The evidence of both witnesses was conscientiously given and can generally be relied upon. Some differences of detail concerning particular meetings emerged on the evidence. Where necessary, I make specific findings on those matters.

The Facts

[10] This is the third application for a protected action ballot order made in recent times by the AMWU concerning bargaining for the proposed agreement.

[11] The factual background to the application concerning previous Commission proceedings and the enterprise bargaining negotiations is relevant. Much of this material is uncontested. However, the inferences and conclusions I should draw from the facts are in issue.

[12] I make the following findings.

[13] The relevant employees are currently employed under the Pacific Marine Batteries Collective Agreement 2016. It is an agreement approved under the FW Act. The AMWU is a Union covered by the agreement. The agreement reached its nominal expiry date on 1 January 2019. It continues to operate by force of law.

[14] In October 2018 a Notice of Employee Representational Rights was provided by the AMWU to all employees who were proposed to be covered by a new (replacement) enterprise agreement.

[15] Bargaining between PMB Defence and the AWU for a new agreement commenced in November 2018. The AMWU served a log of claims on the employer on about 16 November 2018.

[16] Mr Bauer is the senior union officer overseeing the negotiations. Ms Lang is the company officer responsible for the negotiations.

[17] Six bargaining meetings have been held between PMB Defence and the AMWU including on the following dates:

A preliminary meeting on 16 November 2018;

28 November 2018;

5 December 2018;

19 December 2018;

31 January 2019;

14 February 2019; and

25 March 2019.

[18] The AMWU exercised rights of entry and held four meetings of its members on the negotiations on the following dates:

13 November 2018;

14 February 2019;

15 March 2019 and

12 April 2019.

[19] In addition, Mr Bauer has from time to time had direct discussion with AMWU delegates employed by PMB Defence, and engaged in correspondence with the employer.

[20] Negotiations up to and including February 2018 proceeded in an orderly and orthodox manner. The Union log of claims was discussed, the employer responded (including with its own claims) and the Union responded to employer positions and in some instances withdrew or modified aspects of its log of claims. Until then, after each bargaining meeting a formal matrix updating the status of bargaining positions on various issues was prepared by the employer and shared with the Union. 3

[21] At the meeting on 14 February 2018 the AMWU made certain new claims. A further bargaining meeting was scheduled for 27 February.

[22] On 26 February the company advised the AMWU that it needed more time to assess the new claims, and sought a deferral of negotiations to the week of 11 March. The AMWU responded that day expressing concern at the proposed two-week delay, seeking an assurance that any agreed wage increase would apply from the expiry date of the current agreement (i.e. backdated to 1 January 2019) and indicated availability to meet on March 12 or March 14. 4

[23] On 1 March 2019 the AMWU made an application to the Commission for a protected ballot action order (PABO) (PABO application #1). The application was not opposed by PMB Defence, though it made submissions on the form of the questions to be put, and expressed concern at potential disruption to submarine deployment and national security should industrial action be taken.

[24] By decision and Order of 6 March 2019 I granted the application on amended terms and ordered that a protected action ballot be held and close by 11 April 2019. 5

[25] Notwithstanding the Union’s PABO application of 1 March, the company actively undertook work on the impact and effect of the AMWU’s new claims over the first fortnight in March. It did not however communicate back to the AMWU until 12 March when it proposed the negotiating parties meet on 14 March. On 13 March Mr Bauer advised Ms Lang that he was now no longer available to meet on 14 March given the late notice. The company indicated that it would put its position in writing. 6

[26] On 22 March 2019 PMB Defence wrote to the AMWU in the following terms

“Dear Peter,

RE: Pacific Marine Batteries Enterprise Agreement Negotiations

As you are aware, the AMWU has engaged in negotiations with PMB Defence for the proposed Pacific Marine Batteries Enterprise Agreement 2019- 2021 (the Agreement).

Throughout the period of 22 October 2018 and 22 March 2019, the parties have met on approximately 6 occasions. During these negotiations, the AMWU pursued a range of claims on behalf of its members. These matters were subject to considerable negotiations, and PMB has accordingly confirmed its position with respect to each matter.

This purpose of this letter is to confirm PMB’s final position on any and all matters, including those raised by the AMWU at our most recent meeting.

Attached at Appendix 1 you will find a table which reflects the final status of each claim pursued by the bargaining parties during negotiations. We note that a similar claims matrix has been provided to you at regular intervals during negotiations.

We seek your consideration and feedback on this document by close of business Tuesday 26 March 2019. Any response will be genuinely considered and responded to thereafter.

In due course we will provide you with a marked draft Agreement for your consideration, which will reflect the final position/s identified in Appendix 1.

Should you wish to discuss the content of this letter, or bargaining generally, please do not hesitate to contact me directly.

Yours sincerely,

Allison Lang

HR Manager”

[27] A bargaining meeting was held on 25 March 2019. An agreement was not reached on critical issues. I make findings later in this decision concerning the position of the parties at that meeting.

[28] On 27 March 2019 Ms Lang emailed Mr Bauer with the company’s understanding of the AMWU’s position arising from the 25 March meeting, requesting feedback and advising that the company would “move to draft an agreement, and present this to the bargaining table to provide the opportunity to make comment/feedback prior to taking the matter to ballot” 7 (my emphasis). This was a reference to the company’s intention to put a draft enterprise agreement (agreed or non-agreed) to its employees for a vote.

[29] The following day (28 March) Mr Bauer replied “outlining where I think negotiations are currently”. Mr Bauer’s email said as follows:

“Hi Allison,

Thank you for your email below and to answer your question yes I was awaiting an email outlining the company’s understanding on where we are at as was discussed previously. Notwithstanding that I refer to your email below and our most recent meeting on March 25, 2019 and wish to outline where I think negotiations are currently.

In relation to the discussions and the position of the Union following a recent meeting of members the Union believes we are still apart on the following items.

1. Red Lead Room Allowances being increased.

2. The introduction of new allowances for Die Cast Platform, Decommissioning and Formation.

3. Cancer Checks being put into the Agreement proper.

4. Wage Increase amounts (our position is 3 % per year).

5. Classification rates (i.e. company proposal to reduce the lower end relativities – the union does not support the reduction of the relative rates)).

6. Leading Hand Allowance (may be accepted if it was an all-purpose allowance).

7. Lead in Blood bonus payment.

In our meeting on March 25, I put a without prejudice position that if we could reach an understanding on the matters contained in items 4, 5, 6 and 7 we may be able to seek acceptance with the members on the company’s position on the remaining matters. Unfortunately however we were still apart following the discussion on these items hence no agreement on any of the matters were reached. I further explored the company’s preparedness to drop all claims and simply “roll over” the agreement with a wage increase however it appears this is also not an option the company is interested in.

I am happy to review a draft agreement for the purpose of furthering negotiations however I do not support an unagreed document being put to employees for consideration and would be advising members if that was to happen to vote against such a proposed document.

I am hopeful that your revised draft document will move us closer to agreement and look forward to reaching an agreed outcome.

Regards,

Peter Bauer”

[30] I make findings later in this decision concerning that email response.

[31] On 3 April 2019 (at 2.53pm) Ms Lang sent Mr Bauer an email and letter which referred to the employer’s 22 March letter and advised “PMB have confirmed their final position on any and all matters including those raised by the AMWU”. 8 The letter attached an updated bargaining matrix which “reflects the final status of each claim pursued by the bargaining parties during negotiations”. The email attached “a marked draft agreement” for consideration “which reflects the final position”. The company sought AMWU consideration and feedback by 5 April.

[32] Two days later, on 5 April 2019, Mr Bauer replied by email providing certain “feedback”. 9 Included in that feedback was an assertion that the employer had “bordered on breaching good faith bargaining obligations” because (according to the AMWU) the employer’s draft agreement included textual changes not previously notified to the Union. I make findings later in this decision concerning that response by the AMWU.

[33] The company responded by email at 4.53pm on 8 April 2019 10 denying any failure to act in good faith. It provided the Union a further opportunity to respond to its draft “by midday 9 April” (the following day). The employer’s letter concluded:

“Subject to the above matter we are of the view that it is likely that parties have reached the natural end of negotiations, as the Company has declared its final position on the Union claims.” (my emphasis)

[34] During this period a postal ballot on the PABO questions was conducted by the Australian Electoral Commission (AEC). The results were declared on 10 April 2019. Protected action was approved by a majority of those voting. However, only 48% of employees voted. This was one vote short of a majority of voters on the roll. Section 459(1)(c) of the FW Act requires at least 50% of employees on the roll of voters to have voted in order for protected action to be authorised. Accordingly protected action at PMB Defence was not authorised by that ballot.

[35] On 16 April 2019 the Union responded to the failure of the protected action ballot to secure a majority of voters on the roll by lodging a fresh application in the Commission for a protected ballot action order (PABO application #2). This time that application was opposed by the employer. I conducted a hearing on 18 April. At the hearing Mr Bauer acknowledged that the Union had failed to notify the AEC of the application within 24 hours as required by section 440 of the FW Act. This being a mandatory pre-requisite to the making of orders, the Union discontinued the application.

[36] Later that day (18 April) the Union filed a fresh application (the current proceedings) and served the same on the AEC (PABO application #3).

[37] During this period PMB Defence had put its draft enterprise agreement to its employees for a vote. On 18 April 2019 the AMWU was informed (via a delegate) that the vote on the employer’s draft had been unsuccessful.

Consideration

Compliance with formal requirements

[38] Part 3-3 Division 8 of the FW Act imposes a detailed statutory scheme concerning protected action in support of bargaining. 11 That scheme prescribes formal obligations on an Applicant including the form and content of its application (section 437), when an application may be made (section 438) and notice and service requirements (section 440).

[39] The statutory scheme also imposes formal requirements on the Commission including the content of an order (section 443(3)), the time in dealing with applications (section 441) and the giving of notice of a protected action ballot order where one is made (section 445).

[40] I am satisfied that the AMWU application is made under section 437 and that the Applicant has complied with the formalities required under the FW Act.

[41] In particular, I am satisfied that:

•  The AMWU is a bargaining representative of employees who will be covered by the proposed Agreement;

•  That bargaining has commenced and there is thus a notification time;

•  That the application specifies the group of employees to be balloted, and the questions to be put;

•  That the application was accompanied by a statutory declaration in the prescribed form as required by the Fair Work Regulations 2009 and Fair Work Commission Rules 2013; and

•  That the AMWU did, within 24 hours after making the application, give a copy to the employer and to the ballot agent (the AEC).

Is the AMWU genuinely trying to reach an agreement?

[42] Aside from these formalities, the substantive provision governing the determination of this application is set out in section 443 of the FW Act. Section 443(1) provides:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

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

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(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.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note:          Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[43] Section 443 does not confer a broad discretion on the Commission. A protected action ballot order “must” be made if an application is made in proper form and “if 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.” 12

[44] It is not contested that the AMWU has made an application under section 437 (thus complying with section 443(1)(a)).

[45] The substantive issue requiring determination is whether the AMWU has been and is genuinely trying to reach an agreement with PMB Defence within the meaning of section 443(1)(b).

[46] Section 443(1)(b) requires the Commission to be satisfied that an Applicant is genuinely trying to reach an agreement in two temporal contexts : the recent past, and the present:

“The temporal elements in s.443(1)(b) require that an applicant is trying to reach agreement at the time of determination (reflecting the evidence at the time of hearing) and that the applicant had been trying to reach an agreement before that time, determined by the application of the approach set out in Swire and JJ Richards. That gives purpose to the two temporal requirements within s.443(1)(b) of the Act.” 13

[47] It is not contested by PMB Defence that the AMWU had, in the past, been genuinely trying to reach an agreement. The employer’s case is that the AMWU had been trying to do so up to 1 March 2019, but has not since. In the alternative, the employer submits that if aspects of the Union’s conduct since 1 March could be said to constitute genuine bargaining, the Union’s conduct as a whole since 1 March cannot be said to be genuine bargaining. In particular the employer says that the Union’s current conduct does not establish that it “is” genuinely bargaining at the present time.

[48] I accept that if the Union is not currently genuinely trying to reach an agreement with PMB Defence (that is, at the time of this determination) then it has not met the precondition in section 443(1)(b) of the FW Act even if it had, in the past, been so trying.

[49] I also accept that the onus is on the applicant Union to establish, on the evidence, that it has met the requirements of section 443.

[50] However, for the following reasons I conclude, on an objective consideration of the evidence as a whole, the AMWU has been and currently is genuinely trying to reach an agreement with PMB Defence. Nor do I consider that the Union’s conduct individually or collectively leads to a conclusion that the AMWU has not been and is not seeking to genuinely reach an agreement.

[51] The employer submits that the Union has failed to respond substantively to its “final” position put in writing on 22 March and that this is evidence that it had ceased to genuinely try to reach agreement.

[52] I do not agree. Negotiations for an enterprise agreement, including a replacement agreement, have their own dynamic; they ebb and flow. These negotiations started in November 2018 by reference to an AMWU log of claims. In their initial stages the AMWU position framed discussions. The employer responded with its position. By mid-February the AMWU modified its position, withdrew certain claims and added others. None of that is evidence of not trying to genuinely reach agreement. It was the unremarkable ebb and flow of negotiations.

[53] Whilst the evidence before me does suggest that most of the running in negotiations between 1 March and 9 April was made by PMB Defence, it is not the case that the AMWU is or was entirely non-responsive or non-responsive to such an extent that it could be said to have not been genuinely trying to reach an agreement during this period. Over this period positions polarised, as the employer presented its position as ‘final’ and the Union presented fall-back positions.

[54] The employer also submits that the Union has not genuinely tried to reach agreement because since 1 March and then again on 16 April and 18 April the Union moved its focus to securing a right to take protected action and failed to otherwise genuinely try to reach agreement.

[55] I reject this submission.

[56] That a Union exercises a lawful right to make an application under section 437 cannot, in any sense, be said to be a ground to conclude that it is not genuinely trying to reach agreement. Exercising a statutory right to ballot its members on taking protected action to advance its negotiating position is the exercise of a collective workplace right on behalf of its members. It would be repugnant to the statutory scheme if the exercise of a statutory right was evidence of a failure to meet a statutory obligation. The statutory scheme contemplates the taking of protected action, within prescribed boundaries, as a tool available to a Union and its members to enhance their collective bargaining position. 14 It contemplates the taking of protected action as an element of an overall industrial negotiation, so long as the Union had and continues to be trying to genuinely reach agreement. As a full bench of this Commission said in Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd:15

“In and of itself, a bargaining representative making a particular strategic choice which is permissible under the bargaining scheme established by the Act, is not a basis on which to conclude that the bargaining representative is not genuinely trying to reach an agreement or that the bargaining representative has some extraneous intent or purpose. Recourse to protected industrial action and applications to facilitate that action, are an accepted means by which a bargaining representative may further the interests of those it represents.”

[57] The AMWU continued to respond to the employer during the periods after it applied for PABOs. The Union’s responses were more generic and less detailed than the employer had requested; they were responses nonetheless. I accept that the Union did fail to address each specific aspect of the employer’s “final” position put on 22 March and that this deeply frustrated the employer. This was not however a failure to try to reach agreement because context matters. The following contextual considerations are relevant:

[58] Firstly, whilst the Union did fail to meet on 14 March its failure to do so was not unreasonable. This occurred only after the employer had deferred a planned meeting on 27 February (for genuine reasons). Given the subsequent late notice (24 hours) provided to the Union that the employer was ready to meet on 14 March, Mr Bauer’s unavailability by then was not unreasonable.

[59] Secondly, the Union did meet the employer on 25 March to discuss the employer’s 22 March correspondence. At that meeting the Union did respond to the employer and indicate that it was apart on multiple issues. Whilst that response was to reject the employer’s “final” position without engaging on its detail with counter proposals, that was not the full extent of the Union position. I find on the evidence that the Union did make two without prejudice suggestions towards the end of that meeting. These were noted in Mr Bauer’s subsequent email of 28 March: firstly, that the Union may be willing to recommend to its members to drop its claims 1, 2 and 3 if agreement could be reached on items 4, 5, 6, and 7; and secondly, that the Union could alternatively consider a proposal to drop all claims if the employer agreed to roll over the existing agreement with a wage increase. I consider Mr Bauer’s email response of 28 March to be consistent with a Union genuinely trying to reach an agreement in circumstances where negotiating positions were polarising.

[60] Thirdly, the Union did reply to the employer’s draft agreement by email on 5 April. That reply was perfunctory in that it did not engage the substantive proposals but rather made technical observations on drafting and suggested that unexpected changes to language could constitute a failure of good faith on the employer’s part. Whilst the employer understandably found this inference unhelpful to negotiations, these were not irrelevant observations irrespective of whether they were or were not well founded. They were matters on which the company was being asked to reflect and respond, and it did so three days later on its own terms.

[61] I also reject the employer’s submission that the evidence does not support a conclusion that the AMWU is not currently genuinely trying to reach agreement. The AMWU’s current conduct has to be seen in context. That context is:

[62] Firstly, the employer declared on 9 April that, in its view, it “is likely that parties have reached the natural end of negotiations, as the Company has declared its final position on the Union claims”.

[63] Secondly, during April two ballots occurred: a union ballot for the right to take protected action (which secured a majority of votes but lacked of majority of voters); and a company ballot to test employee views on its proposed agreement (which also failed to secure majority support).

[64] In these circumstances it is not unreasonable that the AMWU position was less forthcoming than it had been in the first three months of bargaining. Just as the employer position and approach has ebbed and flowed (to the extent of having declared “the natural end of negotiations”) so had the Union position. It is noteworthy that the Union position was not indifferent to further bargaining. By email of 22 April 2019 Mr Bauer wrote to the employer as follows:

“Hi Alison,

Further to our discussion on Friday April 12 in relation to the ballot initiated by the company to consider the company’s draft Agreement I have been informed (by a member) that the employees have rejected the draft Agreement by a large majority.

Given this the AMWU is seeking whether the company is prepared to review its position on the matters under discussion?

I will await your advice on this matter and in any event the AMWU remains prepared to meet further with the objective of reaching an agreement around terms which can then be jointly put to the employees for their consideration.

Regards,

Peter Bauer”

[65] PMB Defence submit that this email is self-serving and should be considered with caution. It submits that it was sent after the Union initiated these proceedings and after the Union was made aware of the grounds of the employer’s objections. I note that the employer’s objections to the current application were filed with the Commission and served on the Union on 24 April; however, the Union had been served with the employer’s similarly framed objections to its 16 April PABO application on 17 April.

[66] I do not accept this submission. The Union position as expressed on 22 April made reference to a contemporary event: that being the Union’s understanding that the employees had rejected the company’s draft agreement some days earlier. In that context I accept Mr Bauer’s evidence that this email was sent in a genuine endeavour to re-start negotiations in light of the company’s position apparently not having workforce support.

[67] PMB Defence also submit that the AMWU application is premature until the AMWU “proactively engages in bargaining”. I reject this submission. There is no statutory test based on whether an application is premature or not. There is no statutory test based on whether a union is “proactively” engaging in bargaining. The statutory test is whether a Union is trying to genuinely reach agreement. If it is, the application is not premature. Indeed if it is (and if other formal requirements are met) the application must be granted.

[68] PMB Defence also submit that the AMWU application is not contemporaneous with any attempt to genuinely trying to reach agreement. It refers to the fact that PABO application #3 is substantially similar to PABO application #1 and #2. The employer says this is evidence of the Union position having been unchanged since 1 March and that this permits a conclusion that it is not currently trying to genuinely reach an agreement. I reject this submission. I have found that the Union did meet on 25 March and did communicate its position by email on 28 March and 5 April and again further on 22 April. These were material steps made by the Union to advance its position in the negotiations with a view to securing an agreement on terms acceptable to it and its members.

[69] PMB Defence also submit that the Union has not since 1 March and is not genuinely trying to reach agreement because it did not conduct a meeting of members once it received the employer’s position of 22 March and before it responded on 28 March and 5 April.

[70] Although there may be circumstances in which a Union’s failure to consult its members is evidence that it is not genuinely trying to reach an agreement, on the facts before me that is not the case. Mr Bauer’s evidence, which I accept, was that he spoke to his delegates in framing the Union responses and considered it unnecessary and unwieldy to convene meetings at each stage of communicating with the employer. The evidence before me is that the AMWU held meetings of members at PMB Defence on four occasions during the course of bargaining on approximately a monthly basis including on 15 March and 12 April. There is no basis to conclude that a failure to do so more frequently or to do so between 22 March and 5 April was a failure to genuinely try to seek agreement.

[71] In drawing these conclusions I do so in the context of the statutory test, which concerns whether an applicant Union is genuinely trying to reach agreement. The test does not turn on whether the employer is similarly trying to do so or how it is trying to do so. It may well be that at certain periods of the ebb and flow of an industrial negotiation an employer is trying to do so in a more direct, impassioned or focussed manner than a Union or its employees. This alone is not a basis on which to conclude that a Union is not so doing. The statutory test requires an objective consideration of the Union’s conduct based on relevant facts, circumstances and context. Whilst mutuality is required in genuine negotiations, it is not a comparative exercise per se. The evidence before me discloses frustration by the employer with the fact that the Union saw fit to apply for PABOs at what it considered to be an advanced and delicate point in negotiations. The evidence before me also discloses that PMB Defence was generally constructive and responsive. Be that as it may, neither of these factors weigh against a conclusion that the Union was and is genuinely trying to reach agreement.

Conclusion

[72] For these reasons I conclude that the AMWU has been and is genuinely trying to reach an agreement within the meaning of section 443(1)(b) of the FW Act.

[73] As a consequence, and given compliance by the applicant Union with other statutory formalities, I am required to make a protected action ballot order. I do so in the terms of the Order which I publish in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

P. Bauer, for the AMWU

R. McMahon, of AiGroup, for the Respondent

Hearing details:

2019.

Adelaide.

26 April.

Printed by authority of the Commonwealth Government Printer

<PR707265>

 1   A1

 2   R1

 3   A4, A5, A6

 4   A7

 5   [2019] FWC 1400; PR705487

 6   A7

 7 R1 Attachment AL5

 8 R1 AL7 and AL8

 9 R1 AL10

 10 R1 AL11

 11   JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [29] per Jessup J

 12   Ibid at [56] and [69] per Flick J

 13   Coles v AMIEU[2015] FWCFB 379 at [49]

 14   JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [29] per Jessup J

 15   [2014] FWCFB 2587 at [73]