“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v The Fremantle Foundry and Engineering Company Proprietary Limited
[2020] FWC 4356
•20 AUGUST 2020
| [2020] FWC 4356 |
| 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
The Fremantle Foundry and Engineering Company Proprietary Limited
(B2020/444)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 AUGUST 2020 |
Proposed protected action ballot of employees of The Fremantle Foundry and Engineering Company Proprietary Limited – whether applicant genuinely trying to reach an agreement – whether questions sufficiently specific– applicant genuinely trying to reach agreement – protected action ballot order issued.
On 17 August 2020 the Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers Union) (the AMWU) applied under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order. It did so in relation to certain employees of The Fremantle Foundry and Engineering Company Proprietary Limited (the Company) who are members of the AMWU.
The Company and the AMWU are bargaining in relation to a new enterprise agreement to replace ‘The Fremantle Foundry & Engineering Co Pty Ltd Enterprise Agreement 2014’. The current agreement reached its nominal expiry date on 20 May 2018, and the evidence suggests that negotiations have been ongoing since November of that year.
The matter was allocated to my Chambers on 18 August 2020 and heard on 20 August 2020. I reserved my decision, informing the parties that they would be notified shortly thereafter.
The company objected to the application on the basis that the Commission will be unable to make the order sought. The primary grounds for this objection were:
a)the AMWU is not genuinely trying to reach an agreement; and
b)the AMWU has failed to properly specify the ballot questions that it intends putting to the employees to be balloted.
In short, at paragraph [60] of this decision, I noted there are two temporal components to s 443(1)(b): the applicant must have been genuinely trying to reach agreement and must be genuinely trying to reach agreement.[1] I am satisfied that the AMWU has been, and is, genuinely trying to reach an agreement with the Company. There was nothing advanced to impugn the bona fides of the AMWU’s claim to be genuinely trying to reach an agreement with the Company.
Concerning the issue of failing to properly specify the ballot questions, there is merit in that ground with respect to question 4 of the ‘Draft Order’ accompanying the application. That question asks whether the relevant employees endorse ‘bans on paperwork?’. I have therefore removed that question; my reasons for doing so are to be found at paragraphs [62] – [67].
Having considered all of the materials filed and the evidence given in this matter, as well as the submissions of the parties, I am satisfied at the time of making the order that there had been a ‘notification time’ in relation to the proposed agreement. The nominal expiry date of the current agreement has passed and the restriction in s 438 was therefore not engaged. All requirements for the making of a protected action ballot order have been met. Accordingly, the Commission was required under s 443 of the Act to make a protected action ballot order. An Order is issued alongside this decision.[2]
Background
The background information is an amalgam of the evidence provided. Bargaining has been on foot for near on two years and, understandably, not every detail is captured, albeit all the evidence has been considered.
In October 2018, the Company issued a notice of employee representational rights (First Notice).[3] Bargaining proceeded during the latter part of 2018, with the AMWU providing its log of claims and the Company tabling a draft proposed agreement.[4] Mr Fryer, Organiser, gave evidence that both he and Mr John Bowles, an AMWU delegate for members at the Company, attended that first meeting and subsequent meetings thereafter. Both parties were said to have provided responses on the proposals advanced.[5]
Mr Versluis, a management consultant engaged by the Company to make a new enterprise agreement, gave evidence on behalf of the Company. He said that, from around January 2020, he led the majority of the bargaining meetings on behalf of the Company. However, during the hearing it became evident that of the six negotiation meetings held in 2020, Mr Versluis led three of those meetings.
Mr Versluis gave evidence that during his involvement in bargaining for the new agreement, the AMWU had never provided a written log of claims.[6] However, he conceded the AMWU may have tabled a log of claims before his involvement in the process.
Mr Fryer confirmed that at the first bargaining meeting back in 2018, the AMWU had tabled a hard copy document of its log of claims (see Exhibit A1 Annexure VF-8).
Mr Fryer stated that there were six meetings up until 30 June 2020.[7] However, there appears to be a dispute about the meeting dates, with the Company disputing Mr Fryer’s evidence that there were bargaining meetings held on 20 August 2018, 11 October 2018 and 11 November 2018.
By 20 November 2018, the parties had exchanged a proposed draft agreement. Mr Fryer emailed Ms Everard, an owner of the Company, a proposed draft agreement and additional notes. This draft of the agreement mirrored the current agreement, such that it included a clause that said the agreement would be read and interpreted wholly in conjunction with the Manufacturing and Associated Industries and Occupations Award 2010 (Award).[8]
The parties agreed to pause negotiations from March 2019 until mid-October 2019.[9] On 25 October 2019 the negotiations recommenced, and on 19 February 2020 a second notice of employee representational rights was distributed, after errors were identified with the First Notice.[10]
Mr Fryer gave evidence that there were negotiation meetings on 25 October 2019, 12 December 2019, and 23 January 2020.
After the meeting on 23 January 2020, Ms Everard was said to have sent to Mr Fryer a document titled, ‘Enterprise Agreement 2020 Draft 23 Jan 2020.[11] This draft of the proposed agreement again included a clause that said the agreement would be read and interpreted wholly in conjunction with the Award.
On 24 February 2020, Mr Fryer received an email from Ms Everard referring to the last bargaining meeting, thanking both him and Mr Bowles for their feedback, confirming the next meeting on 25 February 2020 and attaching a subsequent agreement draft. That draft agreement now included a clause which stated that ‘[S]ubject to clause 5.2, this Agreement shall stand alone and no other award, transitional instrument, preserved state agreement or notional agreement preserving state awards shall have any effect in relation to the Employees covered by this Agreement’.[12]
Mr Fryer gave evidence that the Company had not informed the Union, with the exception of the amendment to the relevant clause, that the Award was to no longer be ‘incorporated’. Mr Fryer’s evidence was that he became aware of the change on having been provided with the draft agreement on 24 February 2020, or thereabouts, and took the change to the membership. It was decided to the effect that the AMWU would not agitate further regarding the removal of the Award incorporation. A further negotiation meeting was held on 25 February 2020.[13]
There was correspondence between the parties about pausing negotiations due to the onset of the Covid-19 pandemic. However, Mr Fryer recalls sending an email to Ms Everard on 8 April 2020 seeking a continuation of the negotiation process. Mr Fryer stated that he suggested to the Company, if there was a reluctance to continue negotiations given the COVID-19 pandemic, the AMWU would be open to rolling over the current agreement for 12 months with an administrative payment of 1.5% to an employee’s hourly rate.[14] A response was received from Ms Everard on 9 April 2020, and on 21 April 2020 Mr Fryer informed Ms Everard that the members wanted negotiations to continue.[15]
On 1 June 2020, the Company issued a revised draft proposal, which Mr Fryer said he received on 2 June 2020. Mr Fryer said that he consulted the membership and they were very unhappy with the ‘June 2020 Draft’, perceiving it as a significant step down from both the current agreement and the previous drafts that had been circulated.[16]
Mr Versluis gave evidence that there was no response forthcoming from the AMWU regarding the June 2020 Draft.
Further bargaining meetings were held on 9 June 2020 and 30 June 2020.[17] In the meeting of 9 June 2020, Mr Versluis recalls Mr Fryer throwing the June 2020 Draft on the table saying words to the effect ‘of the agreement being rejected out of hand’.[18]
On or around 28 July 2020, Mr Bowles sent Ms Everard a tracked change copy of the June 2020 Draft to show the AMWU’s proposed changes.[19] Ms Everard sent a response on 13 August 2020 with a further revised draft of the agreement.[20]
At the time the application was made, Mr Fryer’s evidence was that the next negotiation meeting was scheduled for 18 August 2020.[21] It appears a negotiation meeting was held on 18 August 2020 to discuss the counterproposal that the AMWU had put forward.[22]
Mr Fryer said that the parties had reached agreement on some issues, but others remained outstanding.[23] Those outstanding issues included, but were not limited to the:
a)quantum of wage increase;
b)incorporation of the Award 2020;
c)apprentices;
d)uniforms;
e)disciplinary procedure;
f)removal of ‘new’ employee classification;
g)ordinary hours of work;
h)allowances; and
overtime.
The Company stated that at the time of filing the application the incorporation of the Award and disciplinary procedures had either not been raised or were otherwise not in dispute.[24] Mr Versluis gave evidence that at the meeting on 18 August 2020 (the day after the filing of this application), the AMWU raised several new issues or, otherwise reagitated historical issues, including:
a)that the union was willing to trade wage increases for other changes;
b)that the applicable modern award should be incorporated;
c)that there was an issue with the disciplinary procedure; and
d)that the union should be party to the Agreement (which is not legally possible).[25]
When asked whether the Union has sought to incorporate the Award, Mr Fryer explained that the Company had wanted to change the span of the ordinary hours of work and in response he had said the Union’s preference was to incorporate the relevant clause from the Award.
Mr Versluis gave evidence that during his involvement in bargaining for a new agreement with the AMWU, it would appear some degree of progress was being made (albeit due to the efforts of the Company) until the AMWU would then raise completely new, vague and/or random ideas or ‘deals’.
These ‘deals’, said Mr Versluis, would generally represent a total deviation from whatever bargaining had immediately preceded it, thereby disregarding or derailing (or at the very least, jeopardising) any claims previously advanced; the new deals would typically lack detail and were never accompanied by any helpful written documentation, such as a log of claims or a draft agreement.[26]
Mr Versluis stated that he understood that on 25 February 2020, the Company attended a meeting with the AMWU.[27] At that meeting, the AMWU raised ‘rolling-over’ the current agreement with a 2.5% wage increase for three years.[28]
On 8 April 2020, the AMWU emailed the Company proposing that the current agreement be rolled over for 12 months with a 1.5% increase.[29]
Mr Versluis stated that randomly, over two months later on 30 June 2020, the AMWU raised a claim that seemed to again suggest a ‘rollover’ with a 2.5% increase for three years again.[30]
Legislative Framework
Pursuant to s 443, the Commission is obliged to issue a protected ballot order only in the following circumstances:
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.
Section 437 of the Act relevantly provides as follows:
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) 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 the 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.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi‑enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
Threshold
It is not in dispute that the Union:
a) is a bargaining representative and is entitled to make the application;
b) had made a proper application as required by the Act and met the documentary and notice requirements for the application; and
c) is not prevented from bringing the application by virtue of s 438 given the nominal expiry of the current agreement.
It was confirmed that the Company was provided with a copy of the application within 24 hours of it being made as required by s 440 of the Act.
I am satisfied that the threshold requirements have been met.
Not genuinely trying to reach agreement
Section 443(1)(b) requires that, before a protected action ballot order can be issued, the Commission must be satisfied that the applicant union has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted. The AMWU filed and led sworn evidence that it had been, and was, genuinely trying to reach agreement with the Company.
The AMWU spoke of Mr Fryer and Mr Bowles attending all of the bargaining meetings from 20 August 2018 to 18 August 2020.[31] The AMWU stated that it had initiated a number of the negotiation meetings, and provided a written log of claims at the first negotiation meeting on 20 August 2018.[32] Concerning its engagement with the Company, it said that it had provided written counterproposals and had provided feedback at every meeting in respect of the Company’s claims.[33]
The Company submitted that the AMWU had engaged in conduct, including as recently as 18 August 2020, that was wholly inconsistent with genuinely attempting to reach an agreement. That conduct was summarised as follows:
a)failure to make or articulate claims;
b)failure to genuinely engage with, and respond to, numerous proposals put forward by the employer;
c)minimal to no preparation for bargaining meetings that are then frequently ‘cut short’ at the AMWU’s suggestion or request;
d)a tendency to (particularly when faced with a proposal not to the AMWU’s liking) fail to engage with prevailing or current factual information and proposals and, instead, purport to rely upon superseded non-binding discussions (including from as early as 2018); and
e)no consistent written log of claims that genuinely and consistently tracks the bargaining process – rather, intermittent emails from the AMWU that assert blanket “positions” and fail to advance bargaining (particularly interest-based bargaining) in any logical or considered way.
The Company contended that the AMWU had failed to establish the statutory pre-requisite in s 443(1). The reasons relied upon:
a)with the exception of an assertion in section 2.1, sub-paragraph [10] of the Form F34B declaration, there was no acceptable evidence setting out the AMWU’s efforts or claims to try and genuinely reach an agreement;
b)the AMWU failed to articulate, even in general terms, the ambit of its claims, in particular, regarding allegedly incorporating the Award into any proposed agreement and alleged contentions regarding the disciplinary procedure meant there had not been an attempt by the AMWU to reach an agreement;
c)the scope of disputed claims (see paragraph 26 of this decision) is curious given the AMWU has demonstrated a lack of engagement in recent months and, in any case, is grossly inflated. These alleged ‘disputed matters’ represent the elusive ‘log of claims’ that the Company had rather hoped it might see tabled at one of the bargaining meetings previously held;
d)correspondence sent by the Company to the AMWU as recently as 13 August 2020, which sought to narrow matters in dispute and progress the reaching of an agreement, was flatly ignored and, instead, the application was served on the Company on 17 August 2020 (being the day before a scheduled bargaining meeting).
The Company submitted that the making of the application effectively on the eve of the next bargaining meeting, and ignoring an email from it on 13 August 2020 on critical issues such as wages, was consistent with the AMWU disregarding the requirements and objects of the Act and, further, manufacturing a preferred bargaining environment rather than genuinely bargaining in an effort to reach an agreement.
A Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia[34] refrained from adopting a formulaic approach when applying the statutory test under s 443(1)(b) stating:
[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.[35] 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. ....
It is not necessary to show that negotiations on the agreement or an item of the agreement have been exhausted, and it is not necessary to show that the making of an application for a protected action ballot order is a last resort.[36]
It is clear on the evidence that the negotiations have been ongoing for near on two years. Although the period was punctuated by a pause in 2019, meetings had been, and continued to be, held ‘face to face’ and the parties had articulated claims by advancing proposed versions of a draft agreement. On at least two occasions the AMWU had returned revised versions.
While criticism was levelled at the AMWU for not having provided updated versions of a log of claims, or for having provided little in the way of updated versions of a draft agreement, I am satisfied the draft agreements exchanged between the parties constitute a ‘proposed enterprise agreement’ within the meaning of ss 437(1) and 443(1) of the Act.[37]
Furthermore, while the minutes of bargaining meetings authored by Mr Bowles were criticised by the Company for not being a contemporaneous account of the meetings and the Company had not consented to them being an accurate depiction of what had occurred, I am nevertheless satisfied reliance can be placed upon both them and the evidence of Mr Fryer, to arrive at a finding that the AWMU had provided feedback to the Company regarding the draft agreement proposals and agreement content, during the relevant period.
The Company drew my attention briefly to the decision of Australian Maritime Officers’ Union, The, & Australian Institute of Marine and Power Engineers, The v Maersk Crewing Australia Pty Ltd (Maersk).[38] In that decision the respondent employer had utilised a ‘clarification register’ to document everything that was discussed in bargaining meetings and changes were drafted into the register as they were made. Evidence was given to the effect that the ‘clarification register’, or register, reflected accurately the status of the negotiations.
That same register included specific clauses in the middle of a table and at the far right was a column titled status, which was either marked red or green. The evidence was that a green box indicated agreement had been reached on a specific clause. However, at hearing the union said the green status in effect reflected the position at that moment in time regarding the clause, and that the green was an indicator. In that case it was firstly observed, it was unclear why the unions did not at any time inform Maersk that the clarification register did not accurately portray the status of bargaining, or that they put no stock in it. Secondly, how is a party to ascertain whether there is agreement to a claim, if the word of the Unions cannot be relied upon. The case is not analogous to the circumstances before me.
Relying upon the evidence of Mr Versluis, the Company asserted that the AMWU had put forward ‘deals’, that generally represented a total deviation from whatever bargaining had immediately preceded it, thereby disregarding or derailing (or at the very least, jeopardising) any claims previously advanced. Those new deals were said to typically lack detail and were not accompanied by any helpful written documentation, such as a log of claims or a draft agreement.[39]
Those ‘deals’ sought to roll over the current agreement and included a specific percentage wage increase. While Mr Versluis may not have understood what ‘rolling over’ an agreement meant, I am unpersuaded that the term is difficult to comprehend, ambiguous or is lacking in detail. As it is, the evidence does not show a formalised agreement on some or all of the terms of the proposed agreement, particularly concerning wages. In this respect the circumstances here are distinguishable to Maersk where the unions’ agreement to particular terms appeared unable to be relied upon.
The presentation of those ‘deals’ does not mean that the AMWU’s present efforts to reach an agreement with the Company are not genuine. It does not prevent the AMWU from taking the first step to attract statutory protection for industrial action in support of new conditions. The context here is important. Mr Fryer sent an email to Ms Everard on 8 April 2020 seeking a continuation of the negotiation process. Mr Fryer stated that he suggested to the Company if there was a reluctance to continue negotiations given the COVID-19 pandemic, the AMWU would be open to rolling over the current agreement for 12 months with an administrative payment of 1.5% to the employee’s hourly rate.[40] Mr Fryer put forward the proposal as an ‘alternative’:[41]
Alternatively should the employer be reluctant to return to the table, as a compromise we seek a rollover agreement for 12 months with an immediate administrative payment of 1.5% increase in employees hourly rate.
There have been several enterprise bargaining meetings at which the terms of proposed draft agreements have been discussed. Clearly the parties remain a distance apart on key conditions that are to be included in the agreement but the fact that the current positions of the parties is known also supports a conclusion that genuine bargaining for an agreement is and has been taking place. The offer of alternative solutions to resolve an issue or issues, does not in the circumstances of this case indicate a departure from genuinely trying to reach agreement.
Counsel for the Company drew my attention to the decision in Construction, Forestry, Mining and Energy Union v Brookfield Multiplex Australasia Pty Ltd (Brookfield).[42] In Brookfield, the Senior Deputy President found that the applicant had not been genuinely trying to reach an agreement in circumstances where the application for a protected action ballot had been filed where there had not yet been a considered exchange between the parties on critical issues such as wages. By the applicant’s own conduct such an exchange was anticipated. Rather, the applicant, immediately prior to the next bargaining meeting, made its application for a protected action ballot. The Senior Deputy President remarked that the application was an attempt to manufacture a preferred negotiating environment, as opposed to genuinely trying to reach an agreement.
Counsel for the Company submitted that the present circumstances were substantially similar to those in Brookfield. In this respect Counsel referred to the communication from the Company dated 13 August 2020 which indicated there would be a considered exchange regarding, amongst other things, the critical issue of wage increases at the next meeting to be held on 18 August 2020. Rather than provide input at and/or await the outcome of that meeting, said Counsel, the AMWU filed the application. The Company submitted, that as in Brookfield, this was a problematic attempt to manufacture a preferred negotiating environment, as opposed to genuinely trying to reach an agreement. I am not so persuaded.
In Brookfield, while there appeared to have been previous decisions in relation to the negotiations between the parties, the period in question traversed a period from 10 April 2012 until 17 April 2012. On 10 April 2012, a meeting was held between the employer and the union where the parties initially settled the issue of a base agreement to be used for the purpose of negotiations (which appeared to be the current agreement in operation at the time). Discussions were progressed by cutting and pasting clauses from the union’s template agreement, which it was advocating for, into the base agreement – 17 clauses had been dealt with. A further meeting was held on 16 April 2012 and 11 clauses dealt with on the union’s terms. It was agreed at the end of that meeting the union would write the respondent employer about a contractors’ clause. At the meeting there also appeared to be discussion about wages clauses and classifications with respective positions advanced but no resolution reached. There was agreement by both parties that they would undertake enquiries concerning classification structures (respondent employer) and a method of calculation for site allowances (the union).
The Senior Deputy President concluded:
The notion of genuinely trying to reach agreement is latent with a definitional expectation that an applicant demonstrate that its motivation is authentic, real and truthful and\or not a sham. But the facts before me do not sufficiently demonstrate the CFMEU’s motivation to reach an agreement with BMAPL to be genuine, at this juncture. The evidence suggests that in the context in which bargaining is being pursued at an early stage in a relatively fluid manner, and there is yet to be a full exchange of views on critical matters let alone consideration of those views as exchanged, and an applicant makes an application for a ballot order under s.437 of the Act directly following a meeting and before a considered exchange of views on key issues, the genuineness of the motivation of the applicant to reach agreement must fall into serious doubt. Indeed, as the representative for BMAPL put it, the CFMEU was in an unseemly rush to initiate protected industrial action against BMAPL, rather than genuinely motivated or trying to reach agreement with it.
There is no evidence or suggestion that the AMWU is pursuing some ulterior or extraneous purpose. It is clear that the negotiations are not at an early stage and the issue concerning wages has been traversed by both parties on several occasions with no agreement having been reached .[43] It is not the case that the application has been prematurely made given the history of negotiations to date. There have been several references throughout the negotiations to tangible proposals or responses regarding wage increases.
There are two temporal components to s 443(1)(b): the applicant must have been genuinely trying to reach agreement and must be genuinely trying to reach agreement.[44] I am satisfied that the AMWU has been and is, genuinely trying to reach an agreement with the Company. There was nothing put to question the bona fides of the AMWU’s claim to be genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
In approaching an assessment as to whether the AMWU is ‘genuinely trying,’ it must also be borne in mind that the expression is concerned with the genuineness of efforts by the bargaining representative to achieve the goal of an enterprise agreement that meets the approval requirements of the Act. I do not perceive there to be evidence before me that indicates that the Union lacks motivation or intention to reach an agreement with the Company. The correspondence and actions of the AMWU representatives indicates timely responses to the issues currently under consideration.
Ambiguity ballot question
Sections 414(6) and 437(3) both require that the ‘nature’ of the action (being the proposed industrial action, the subject of the protected action ballot) must be specified. The object of the relevant division, as set out in s 436, is to ensure that those who are to be balloted are afforded a fair, simple and democratic process which leads to the view of employees who vote on the question being expressed in the ballot.
It is said that s 437 itself, seen in its statutory context, requires that the questions should describe the industrial action in such a way that employees are capable of responding to them.[45] I am appreciative that questions which are ambiguous or lack clarity may result in consequences for the bargaining representative and the employees, if reliance is placed on the result of the ballot in taking industrial action.[46] That is, the risks associated with the drafting of questions are initially taken by the bargaining representatives making the application.[47]
The Company submitted that the employees who will be voting on the questions, as they are presently drafted, will not be able to properly understand what the proposed industrial action would look like or how long it would last for. It was the Company’s position that the description of the nature of the industrial action in the questions should enable employees to understand the implications for them while at work, and other relevant circumstances.
There was no probative evidence led regarding the questions. However, Counsel for the Company raised issued with question four in the ‘Draft Order’, which touched on ‘[b]ans on paperwork’. Counsel submitted to the effect that in the current circumstances, ‘paperwork’ was of broad import and would likely include paperwork pertaining to safety. When asked to respond to the issue regarding question four in the ‘Draft Order’, Counsel for the AMWU, expressed an understanding that ‘paperwork’ may well extend to ‘Take Fives’ and ‘JSAs’, but employees understood that if such paperwork was not completed then the job or task would not be done.
In this context, it would appear that a ‘ban on paperwork’ would engender the consequence of a stoppage of the performance of some work – not just the work of completing paperwork. I am not satisfied that the relevant employees would understand this implication.
In this case, I am satisfied that question four is absent the clarity required to generate an informed response where a proper assessment has taken place. The question will not be included in the Commission’s Order. With regard to the other questions asked, I do not consider that they suffer from the same difficulties and I consider that the employees are capable of responding to them in an informed manner.
DEPUTY PRESIDENT
Appearances:
P Lim for the AMWU.
C Vinciullo of Mason Ledger for the Respondent.
Hearing details:
2020:
Perth;
August 20.Printed by authority of the Commonwealth Government Printer
<PR721930>
[1] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210, [54].
[2] PR721931.
[3] Respondent’s Submissions, dated 18 August 2020 [10(a)].
[4] Form F34B Declaration in support of an application for a protected action ballot order (as amended); Witness Statement of Vince Fryer [17].
[5] Form F34B Declaration in support of an application for a protected action ballot order (as amended).
[6] Witness Statement of Peter Versluis [11].
[7] Form F34B Declaration in support of an application for a protected action ballot order (as amended) [7].
[8] Exhibit A1, Annexure VF-16.
[9] Form F34B Declaration in support of an application for a protected action ballot order (as amended).
[10] Form F34B Declaration in support of an application for a protected action ballot order (as amended); Respondent’s Submissions dated 18 August 2020 [10(c)].
[11] Witness Statement of Vince Fryer [39].
[12] Exhibit A1, Annexure VF-24.
[13] Ibid [42].
[14] Ibid [44].
[15] Ibid [46].
[16] Form F34B Declaration in support of an application for a protected action ballot order (as amended) [9]; Witness Statement of Vince Fryer [49].
[17] Witness Statement of Vince Fryer [50] – [51].
[18] Witness Statement of Peter Versluis [14].
[19] Witness Statement of Vince Fryer [52].
[20] Ibid [53].
[21] Form F34B Declaration in support of an application for a protected action ballot order (as amended) [12].
[22] Witness Statement of Vince Fryer [55].
[23] Form F34B Declaration in support of an application for a protected action ballot order (as amended) [11].
[24] Respondent’s Submissions, dated 18 August 2020 [10(d)].
[25] Witness Statement of Peter Versluis [14].
[26] Witness Statement of Mr Versluis [23].
[27] Ibid [24].
[28] Ibid [24].
[29] Ibid [25].
[30] Ibid [26].
[31] AMWU Outline of Submission [13].
[32] Ibid.
[33] Ibid.
[34] [2009] FWAFB 368.
[35] Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Print T1982; Re Media, Entertainment and Arts Alliance PR928033.
[36] CEPU and AMWU v Kraft Foods Ltd (2010) 197 IR 12.
[37] Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia [2014] FWCFB 1317; Skilled Offshore Pty Ltd v AMWU and others [2015] FWCFB 7399, [27]; Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894, [15].
[38] [2019] FWC 6817.
[39] Witness Statement of Mr Versluis [23].
[40] Witness Statement of Vince Fryer [44].
[41] Exhibit A1, Annexure VF-26.
[42] [2012] FWA 3374.
[43] Exhibit A1, Annexures VF-14, VF-18, VF-30, VF-33.
[44] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2015] FWCFB 210, [54].
[45] John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) The Australian Workers’ Union [2010] FWAFB 526.
[46] Ibid.
[47] Ibid.
Printed by authority of the Commonwealth Government Printer
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