“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v The Trustee for Engineering and Maintenance Solutions Unit Trust T/A
[2023] FWC 2456
•28 SEPTEMBER 2023
| [2023] FWC 2456 |
| 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 Trustee for Engineering and Maintenance Solutions Unit Trust T/A Engineering and Maintenance Solutions Pty Ltd
(B2023/1015)
| COMMISSIONER WILSON | MELBOURNE, 28 SEPTEMBER 2023 |
Proposed protected action ballot of employees of Engineering and Maintenance Solutions Pty Ltd.
This matter concerns an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order (PABO) in relation to employees of Engineering and Maintenance Solutions Unit Trust T/A Engineering and Maintenance Solutions Pty Ltd whose employment is presently covered by the Engineering & Maintenance Solutions Agreement 2016[1] (the Agreement). The nominal expiry date of the Agreement is 4 October 2019. The application is made pursuant to Part 3 – 3 of the Fair Work Act 2009 (the Act) and is opposed by Engineering and Maintenance Solutions Pty Ltd (EMS).
The application was made pursuant to s.437 of the Act on Friday 22 September 2023 and on the same day after being notified by the Fair Work Commission (the Commission) of the application EMS advised the Commission it opposed the application on the basis that the AMWU had not been genuinely trying to reach an agreement with the employer, which is understood to be an argument that the requirement in s.443(1)(b) of the Act has not been met. That section provides the Commission must make a protected action ballot order if, in tandem with the other requirements of Part 3 – 3, it is satisfied that an applicant for an order of this type has been, and is, genuinely trying to reach an agreement.
As a result of the Respondent’s objection the matter was assigned to me on Friday 22 September 2023 for hearing and determination. A hearing was held by me on Monday 25 September 2023 commencing at 2:00 PM at which Mr Andrew Bonello, Industrial Officer, appeared for the AMWU and Mr Mark Gasch, Director, appeared for EMS. Prior to the hearing each party had been directed to file and serve any additional written material in support of their case by no later than Monday 25 September at 10:00AM AEST. Neither did so.
Section 441 of the Act provides that the Commission must, as far as practicable determine an application for a protected action ballot order within 2 working days after the application is made. However as a result of matters raised in the hearing and the need to afford the AMWU procedural fairness in relation to those matters the application has not been decided within the indicated timeframe. The Commission’s obligation to extend procedural fairness to a party extends, in the absence of any express provision to the contrary, to the exercise of the Commission’s powers such as those set out in the Act’s protected action ballot provisions.[2]
The AMWU seek to ballot all employees of EMS who are permanent site based staff of the Sugar Australia site, who will be covered by the proposed enterprise agreement and for whom the AMWU is their bargaining representative, with the exception of an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day this ballot order is made, unless such an employee has made a conditional termination of that instrument. The material filed in this application by the AMWU asserts that it is a bargaining representative for the purposes of s.176(1) of the Act.
The AMWU proposes 18 separate questions with a short preamble to which respondent employees will need to answer with a ‘yes’ or ‘no’ response to each question. The questions and preamble proposed to be put are as follows:
“In support of reaching an enterprise agreement with The Trustee for Engineering and Maintenance Solutions Unit Trust TA Engineering and Maintenance Solutions Pty Ltd, do you authorise protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:
1. An unlimited number of stoppages of work for the duration of 1 hour at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐2. An unlimited number of stoppages of work for the duration of 2 hours at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
3. An unlimited number of stoppages of work for the duration of 3 hours at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
4. An unlimited number of stoppages of work for the duration of 4 hours at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
5. An unlimited number of stoppages of work for the duration of 6 hours at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
6. An unlimited number of stoppages of work for the duration of 8 hours at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
7. An unlimited number of stoppages of work for the duration of 12 hours at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
8. An unlimited number of stoppages of work for the duration of 24 hours at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
9. An unlimited number of stoppages of work for the duration of 48 hours at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
10. An unlimited number of stoppages of work for the duration of 72 hours at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
11. An unlimited number of stoppages of work for the duration of one week at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
12. An unlimited number of indefinite and / or periodic stoppages on the performance of all work at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
13. An unlimited number of indefinite or periodic bans on overtime at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
14. An unlimited number of indefinite or periodic bans on call backs at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐15. An unlimited number of indefinite and / or periodic bans on using mobile phones at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
16. An unlimited number of indefinite and / or periodic bans on paperwork at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
17. An unlimited number of indefinite and / or periodic bans on using fork-lifts / lifting devices at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐
18. An unlimited number of indefinite and / or periodic bans ordering or receiving parts at the Sugar Australia Pty Ltd Yarraville site?
Yes ☐ No ☐”.
The AMWU submits it has been and is genuinely trying to reach an agreement, noting it served its log of claims on the Respondent on or about 23 June 2023 and has met with EMS on or about 1 September 2023, 17 August 2023, 18 July 2023 and 23 June 2023. At these meetings, it negotiated with EMS in pursuit of the demands in its log of claims. The AMWU submits that despite its best endeavours to reach an agreement, the parties remain apart on three key issues including the backdating of agreed wage increases, allowances, and rostered day off accrual.
It is well settled that the Commission’s power to make a PABO under s.443 of the Act is not discretionary in nature with s.443(1) imposing “a duty on the Commission to make an order if two conditions have been met: first (in paragraph (a)), that an application for such an order has been made under s.437 and, second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. If these conditions are not met, then the Commission is prohibited from making an order: s.443(2)”.[3] An applicant for a PABO carries the evidential onus of establishing that they have been and are genuinely trying to reach an agreement.[4] The requirement in s.437(1)(b) for the Commission to be satisfied that “each applicant has been, and is, genuinely trying to reach agreement” invites a temporal consideration: in order to be so satisfied the Commission must consider an applicant’s conduct not only at the time of the Commission’s decision but also at the date of application for the PABO.[5]
Determination of whether an applicant has been genuinely trying to reach agreement “involves a finding of fact applied by reference to the circumstances of the particular negotiations”. While all of the circumstances of the case require being considered, which frequently requires consideration be given to the extent of progress in negotiations and the steps taken in order to try and reach an agreement, it is ultimately the test in s.443 that must be applied. There will be consideration given to the extent of progress in negotiations and the steps taken in order to try and reach an agreement [6]
The relevant circumstances in this matter include that a log of claims was provided by the AMWU to the Respondent, EMS, on or around 23 June 2023 and that there have been four meetings for the purposes of bargaining from that date to now. A further meeting between the parties is scheduled to take place on 5 October 2023.
The AMWU says about the progress of bargaining that it has agreed with the Respondent as a result of the bargaining conducted to date the quantum of proposed wage increases and certain other claims, but that it has not yet agreed its other key claims, the backdating of agreed wage increases, allowances, and rostered day off accrual.
EMS submits that the bargaining presently being undertaken relates to an appendix to a more lengthy enterprise agreement and that the appendix being bargained for will cover nine of the Respondent’s employees at the Sugar Australia Yarraville site. The PABO application relates only to the nine employees to be covered by the appendix. I do not have material or submissions before me as to progress with bargaining about the wider instrument (that is the terms and conditions other than within the Sugar Australia site appendix).
Despite opposing the application EMS concedes it has met with the AMWU on several occasions. However, it submits that while agreement on wages has been achieved on multiple points, discussion is continuing on other elements of the AMWU’s log of claims. Further:
“No impasse on discussion has resulted and the union is simply trying to gain a position of intimidation to impose it’s intended claims, which have changed from the initial Log of Claims. Additional information was sought from the AMWU and has not yet provided to understand the AMWU’s position on the outstanding matters.”
EMS submitted in the hearing that it believes agreement has been substantially achieved, including over the key matter of wages and the date from which the increases would operate. The Respondent also submitted that it understood the claim in respect of allowances had been or was likely to be resolved with the introduction of an all-purposes allowance, which it suggested on 15 September 2023. It was critical of the AMWU for not having responded about its proposal for an all-purposes allowance and instead simply notifying it that the union could not meet about the subject until 5 October 2023 when its officers returned from leave. The Respondent claims to not understand exactly what it has to do to achieve agreement with the AMWU and takes the view that things previously agreed with the union now seem to no longer be agreed.
While not directly couched as a claim that the AMWU had been failing to bargain in good faith, the Respondent’s submissions taken together at the least infer that such is the case. These contentions on the part of EMS were at their best confusing and at the time they were made not supported by formal evidence or clear documentation.
Because of the inference made by EMS that the AMWU may have departed from its good faith bargaining obligations and the concern I held that such may establish the AMWU was not genuinely trying to reach agreement I called for the provision of documents from each side that would assist in demonstrating the true state of bargaining and the proceedings were adjourned briefly in order to allow relevant material to be provided and further submissions given.
After being given an opportunity to do so EMS provided additional documents in support of its contentions. These consisted of:
A string of emails between Mr Gabsch the Respondent’s Director and several union officials sent between 8 June 2023 and 20 September 2023. The emails appear to be annotated at various points with commentary as to how the documents should be understood. The emails – if complete and accurate – suggest:
oon 8 June 2023 a log of claims in relation to the Sugar Australia appendix was invited which was provided on 23 June 2023;
oon 17 July 2023 EMS provided a response to a claim about rostered days off accrual;
oon 25 August 2023 EMS provided an update to the AMWU on several matters; at best for EMS’ case the document suggests agreement was close but not final on several matters;
oon 15 September 2023 EMS reported the AMWU Organiser Zeljko Cimbora enquired of “progress for updating the EBA and was advise (sic) the wording changes were being implemented into the EBA”;
oalso on 15 September 2023 EMS provided a position to the AMWU about two matters, however it cannot be taken from the email that agreement had been reached on those matters;
oon 20 September 2023 the AMWU delegate, Richie Wisniewski communicated unhappiness with progress towards achieving an agreement, and that EMS was “deliberately dragging out the negotiations so we will settle on the bare minimum and go on as business as usual”. This communication was responded to by Mr Gabsch the same day rejecting many of the points made by Mr Wisniewski, asserting that “At no point in that period of 4 years, have you or the union presented any discussion or negotiation opportunity” and that no attempt has been made by EMS to drag out negotiations;
oon 21 September 2023 the AMWU proposed a meeting in the first week of October to resolve to discuss those issues “where we are still apart on”.
A copy of the AMWU’s template “Metals Labour Hire Agreement 2023 – 2026”.
Correspondence from EMS to the AMWU’s Mr Cimbora dated 4 July 2023 summarising discussions to that date in relation to the “Sugar Site Specific” matters. The document supports that many but not all matters under discussion were or could be agreed by EMS with further discussion; however it cannot reasonably be construed as suggesting that bargaining had concluded.
Correspondence from EMS to Mr Cimbora dated 18 July 2023 confirming the Respondent’s position on certain matters and advising one matter remained outstanding.
An undated table seemingly a record of the outcome of bargaining on monetary matters.
In response to these documents and the assertions made in the hearing by Mr Gabsch, and after being given an opportunity to provide further submissions the AMWU responded by providing an outline of submissions and a witness statement from Mr Cimbora. In summary those documents include the log of claims provided to EMS on 23 June 2023 and put forward submissions which include the following:
While there may be agreement over the quantum of the wage increase, there has been no agreement over the operative date of the increase.
There is also no agreement over adjustment to the quantum of allowances or when the adjustment will commence.
The AMWU has not changed its position on previously agreed matters and has responded to all of EMS’s concerns.
EMS provided response submissions to the above material provided by the AMWU, which I have considered and taken into account in making this decision. Those submissions contest numerous aspects of the AMWU’s case and most significantly that since the union did not put a contrary view, the position EMS put forward to the AMWU that the wages increases should apply from the first full pay cycle in October, consistent with previous years should be deemed to be settled. EMS also put forward that as its allowances proposals are in excess of the Award there is no financial hardship and correspondingly no need to discuss. The Respondent also submits that the Commission should, in forming its views on this application, take into account that the AMWU had not put it on notice that it was considering making an application for a protected action ballot order. It also submits that a comment by Mr Cimbora in an email to Mr Gabsch dated 21 September 2023 that he would and Mr Wisniewski would meet with employees on 3 or 4 October to “see what actually we are apart or not agreeable to your revised offer” suggested he not know or understand the differences in position.
In considering this application I must apply s.443 of the Act which 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;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(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.
(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 or 120 hours (whichever is applicable), 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.”
To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.
I am also satisfied the AMWU has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The evidence supports that the AMWU has sufficiently articulated to EMS what is required to be agreed in order to achieve agreement-in-principle. The appendix being negotiated appears from the log of claims provided to be mainly but not exclusively concerned with wages and monetary matters and the evidence supports that not all of the union’s claims in regard to those matters have been satisfied or agreed to be put aside.
EMS’s submissions about the progress of bargaining lack coherence or clear explanation. While I understand it to be annoyed that bargaining has not yet ended EMS has not been able to point me to anything that would suggest a reversal of position on the part of the AMWU. At best there has been a failure by both sides to tabulate during the course of bargaining precisely what has been agreed in principle but requires drafting to support the agreement; those matters that have been agreed in principle and require no further drafting; and those matters which are yet to be agreed.
Likely that failure is on both sides of the bargaining table.
Even so, the failure to take accurate minutes of bargaining does not demonstrate a party is not genuinely trying to reach agreement and I am unable to make such a determination in respect of the AMWU.
The suggestions that a lack of response from the union about the EMS wages proposal amounts to agreement plainly lacks coherence with actual events: EMS may have assumed agreement, but there is nothing before me that would support that the AMWU either did so too or explicitly stated agreement with the EMS position on backdating. I am unable to find that the AMWU backed away from agreement that had previously been reached on the commencement date of the wage increase.
I also do not accept EMS’s propositions that the application was prematurely made as an impasse has not been reached or that the union does not actually know its members’ views and is thus unable to represent those views to EMS in bargaining. There is no temporal requirement for the making of a PABO application; that is a successful application is not contingent on bargaining being at an impasse. The statement by Mr Cimbora that he needed to speak with his members is no more than that, with him putting forward the entirely uncontroversial proposition that he needed to be guided in negotiations by the union’s members.
There is also no obligation on the part of a PABO applicant to notify the employer it is bargaining with that it intends to make such an obligation. While it may make sense to do so as it could have the effect of hastening agreement, no such obligation exists.
I also do not accept from the very limited material before me that there has been a lack of bargaining in good faith on the part of the AMWU and make no findings on the subject. In respect of any such submission by EMS I take into account that while there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement the terms should not be conflated. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.[7]
These considerations leave me satisfied that the AMWU has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. To be clear that state of satisfaction is both at the time the AMWU’s application was made to the Commission and since.
I am thus satisfied that that the provisions of s.443(1)(a) and (b) have been complied with. I must therefore make a protected action ballot order, as sought by AMWU. My order will issue shortly.
The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 13 November 2023.[8] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An order has been separately issued in PR766511.
This matter will also be the subject of a compulsory conciliation conference before me pursuant to s.448A. An Order, Directions and a Notice of Listing for that purpose will be issued separately to this decision.
COMMISSIONER
Appearances:
Mr A. Bonello for the Applicant
Mr M. Gabsch for the Respondent
Hearing details:
Melbourne (via video);
25 September;
2023.
Final written submissions:
Applicant: 27 September 2023
Respondent: 28 September 2023
[1] AE424922.
[2] CEPU v Abigroup Contractors Pty Ltd [2013] FCAFC 148, [118] – [119], per Katzmann and Rangiah JJ, see also [46] – [48] and [55], per Buchanan J.
[3] National Tertiary Education Union v Curtin University[2022] FWCFB 204, [37], see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (NSW) Pty. Ltd[2023] FWCFB 132, [52].
[4] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Kraft Foods Limited[2010] FWA 4404, [34].
[5] Coles Supermarkets (Australia) Pty Ltd v The Australasian Meat Industry Employees Union[2015] FWCFB 379, [44] – [46].
[6] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368, [31] – [32]; see also Esso Australia Pty Ltd v AMWU, CEPU) and AWU [2015] FWCFB 210, [35].
[7] Esso Australia Pty Ltd v AMWU & Ors[2015] FWCFB 210, [18].
[8] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.
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