"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v The Trustee for the Tim Brown Family Trust T/A Mechanical Maintenance..
[2019] FWC 5399
•2 AUGUST 2019
| [2019] FWC 5399 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Maritime, Mining and Energy Union; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
The Trustee for the Tim Brown Family Trust T/A Mechanical Maintenance Solutions Pty Ltd
(B2019/600)
COMMISSIONER MCKINNON | MELBOURNE, 2 AUGUST 2019 |
Proposed protected action ballot of employees of The Trustee for the Tim Brown Family Trust T/A Mechanical Maintenance Solutions Pty Ltd.
[1] Application has been made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (together, the Unions) under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of The Trustee for the Tim Brown Family Trust T/A Mechanical Maintenance Solutions Pty Ltd (MMS).
[2] The matter was listed for hearing on 1 August 2019.
Background
[3] The application has some history, much of which is set out in earlier decisions of the Commission and which is relevantly summarised below.
[4] On 15 February 2018, MMS initiated bargaining with its employees by the issue of a Notice of Employee Representational Rights (the Notice). That process led to the making of an enterprise agreement titled the MMS Latrobe Valley Enterprise Agreement 2018 on 4 May 2018 (the 2018 Agreement). If approved by the Commission, the 2018 Agreement will replace an earlier greenfields enterprise agreement between MMS, the then CFMEU and the AMWU and known as the MMS Latrobe Valley Power Stations (AMWU and CFMEU) Greenfields Enterprise Bargaining Agreement 2012 – 2106 (the 2012 Agreement).
[5] On 7 May 2018, MMS applied for approval of the enterprise agreement in the Commission.
[6] On 29 May 2018, the CFMMEU sought access to information about the agreement application and advised the Commission that it opposed the application.
[7] On 21 November 2018, the Unions wrote to MMS by email providing a log of claims and seeking to commence negotiations for a “Latrobe Valley Power Industry Agreement”. 1
[8] On 22 November 2018, the Unions emailed MMS seeking a meeting “to discuss negotiating a Latrobe Valley Power Industry Agreement.” 2
[9] On 23 November 2018 MMS replied to the Unions’ email, advising that there was “an agreement that is pending approval that covers this work” and seeking information about why they wanted “to engage in bargaining while this is being processed with the commission”.
[10] The Unions replied the same day, advising as follows:
“The CFMMEU and AMWU do not accept that the agreement you refer to has been validly made. In our view negotiations remain in progress and we thus maintain our request for a meeting next Tuesday We request an urgent response by close of business today.” 3
[11] It does not seem to be in dispute that there was no response to this email.
[12] The 2018 Agreement was approved on 14 December 2018 (the Approval Decision). It was subsequently quashed on appeal by a Full Bench on 21 June 2019 and remitted to me for determination. A hearing of the application for approval is scheduled for 13 August 2019.
[13] On 19 July 2019, the CFMMEU sent an email to MMS reiterating its earlier request to commence bargaining and advising that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) also sought to bargain for an enterprise agreement. It reiterated its view that the 2018 Agreement had not been properly made and was not capable of approval by the Commission and invited MMS to withdraw the application for approval. 4 There is no evidence that MMS replied to the email.
[14] On 29 July 2019, 16 employees of MMS signed a petition in support of the Unions bargaining on their behalf for a collective agreement with MMS. 5
Relevant legislative scheme
[15] Section 437(1) provides that bargaining representatives of an employee who will be covered by a proposed enterprise agreement can apply for a protected action ballot order to determine whether employees wish to engage in particular protected industrial action for the agreement. A person can only be a bargaining representative in relation to a proposed enterprise agreement (see section 176).
[16] Under section 437(2A), an application for a protected action ballot order cannot be made unless there has been a ‘notification time’ in relation to the proposed enterprise agreement. This rule came into effect from 27 November 2015, following the decision of a Full Court of the Federal Court in JJ Richards & Sons Pty Ltd v Fair Work Australia 6and in response to what was known as the “strike first, talk later” issue.7
[17] The notification time for a proposed enterprise agreement is defined in section 173 as
“the time when:
(a) The employer agrees to bargain, or initiatives bargaining, for the agreement; or
(b) A majority support determination in relation to the agreement comes into operation; or
(c) A scope order in relation to the agreement comes into operation; or
(d) A low-paid authorisation in relation to the agreement that specifies the employer comes into operation.”
[18] Under section 443, the Commission must (and must only) make a protected action ballot order in relation to a proposed enterprise agreement if an application has been made under section 437 and the Commission 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.
Has the application been made under section 437?
[19] As set out above, an application can be made under section 437 if the applicant is a bargaining representative for a proposed enterprise agreement and there is a notification time in relation to the proposed enterprise agreement.
Are the Unions bargaining representatives for a proposed enterprise agreement?
[20] The Unions contend that they are bargaining representatives for employees who will be covered by a proposed enterprise agreement covering MMS and its employees in the “Latrobe Valley power industry”. The group of employees said to be covered by the Unions’ proposed enterprise agreement are employees for whom the Unions are bargaining representatives and who fall into the following categories:
1. All employees engaged to perform work at the Loy Yang A, Loy Yang B and Yallourn power station sin Victoria; and/or
2. All employees engaged to perform work at MMS’ workshop at 14 Centre Road Morwell.
[21] The Unions submit that the above proposed scope aligns precisely with coverage of the 2018 Agreement. There are, however, some differences. Unlike the 2018 Agreement, there is no limitation on coverage in the Union’s proposed agreement by reference to specified work classifications or “supervisory” employees. There is also no express exclusion of “administrative employees”, although in the latter case I consider it possible (without deciding) that these employees would not be covered by either the 2018 Agreement or the Unions’ proposed enterprise agreement for the reason that administrative employees are not covered by the Unions’ rules.
[22] It is nevertheless clear that the Unions have members who are employees of MMS. On 29 July 2019, at least some of those employees confirmed in writing that they wished to bargain for an enterprise agreement with MMS that would cover them. On the same day, this application was made. I am satisfied that the Unions are bargaining representatives for employees who would be covered by a proposed enterprise agreement with MMS as contemplated in the Union’s email to MMS on 21 November 2018.
Is there a notification time in relation to the proposed enterprise agreement?
[23] The more difficult question is whether there has been a notification time “in relation to” the Union’s proposed agreement - that is, the enterprise agreement it proposed on 21 November 2018 and sought again in June 2019. That is a question of fact to be resolved having regard to all the circumstances.
[24] The Unions submit that there was such a notification time, being 15 February 2018 when MMS initiated bargaining by the issue of the Notice to employees. It may be accepted that 15 February 2018 was a ‘notification time’ for the purposes of the Act. It also seems uncontroversial that there is no other potentially relevant ‘notification time’ in this matter. MMS has not agreed to, or initiated, bargaining since the 2018 Agreement was made. There is no relevant majority support determination, scope order or low-paid authorisation in operation.
[25] The Unions rely on National Union of Workers v CSL Limited 8(CSL) for the proposition that protected industrial action can be taken in the period after an enterprise agreement has been made and before it is approved by Commission.
[26] The decision in CSL was made having regard to the relevant statutory scheme which among other things prohibits the taking of industrial action “from the day on which an enterprise agreement is approved by the FWC” until its nominal expiry date has passed. 9 The facts and circumstances of that matter were quite different to those before me. Firstly, the relevant union was a bargaining representative for the proposed agreement that was ultimately made. Secondly, protected action ballot orders had been sought and issued before the enterprise agreement was made, and what was being sought was an extension to the period for taking protected action. The matters there under consideration involved an exercise of discretion.10 Finally, the Act had not yet been amended to require that there be a notification time in relation to the proposed agreement before an application for protected action ballot orders could be made, albeit that the existence of a relevant notification time in that case does not appear to have been controversial.
[27] The question of when protected industrial action can be taken is different to the question of whether an application for a protected action ballot order can be made at all. While it provides useful guidance in relation to the operation of the Act’s protected action ballot provisions, CSL does not appear to have any direct bearing on the present case.
[28] MMS submits that there has been no notification time in relation to the Union’s proposed enterprise agreement, because the 2018 Agreement was made on 4 May 2018 and the bargaining process triggered by the Notice came to an end on that day. In those circumstances, it says the 15 February 2018 notification time does not have a sufficient relationship with the Unions’ proposed enterprise agreement some 9 months later on 21 November 2018.
[29] In support of this contention, MMS submits that bargaining comes to an end once an enterprise agreement is made, relying on the decision in Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd 11 (Coles). A notification time has the effect of commencing a bargaining process. It must follow that once the process is concluded by the making of an enterprise agreement, the notification time(s) connected to that process also cease to have enduring effect.
[30] In reply, the Unions submit that the Act does not deal with when bargaining comes to an end, and there are a range of circumstances in which the notification time might occur some months or even years earlier than the making of an enterprise agreement approval application and an application for a protected action ballot order. The Unions rely on the decision in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Broadspectrum (Australia) Pty Ltd 12 (Broadspectrum 2) in support of the contention that if an enterprise agreement is made and an application for its approval under section 185 of the Act is later dismissed, bargaining then resumes as if it had never concluded, and the original notification time(s) continue to have effect.
[31] I have some difficulty with the concept that once bargaining commences under the Act, it cannot end unless an enterprise agreement is approved by the Commission. As Flick J observed in Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia 13(Endeavour Coal)the Actexpressly contemplates the possibility that bargaining may cease without agreement being reached.
[32] In JJ Richards No. 2, Jessup J observedthat an “assumption made by the Act is that the outcome of successful bargaining will be the making of an enterprise agreement”. 14 The ordinary and natural meaning of ‘bargain’ was discussed in Endeavour Coal15andcovers such concepts of discussion over terms; an agreement between parties to settle what each shall give and take or perform and receive; a process of ‘give and take”. It logically follows that when terms are settled, bargaining will have come to an end. Bargaining might also be abandoned. Of course, the statutory scheme for bargaining and agreement making is different to ordinary contracting arrangements, in that enterprise agreements agreed by majority and later approved by the Commission can operate to bind both employees who do and do not agree.
[33] An alternative construction is that bargaining comes to an end once an enterprise agreement is approved by the Commission. Such an approach would be consistent with the conclusion in CSL that protected industrial action can continue to be taken in relation to an enterprise agreement up until that time. It would accommodate both the circumstances of agreement reached with employees who support an enterprise agreement and the involuntary imposition of that enterprise agreement on those voting against it. However, difficulties might arise, for example in the application of the good faith bargaining requirements in the period between the making of an agreement and its approval.
[34] I adopted the conclusion in Coles that the process of bargaining for an enterprise agreement comes to an end when an enterprise agreement is made in Broadspectrum (Australia) Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 16 (Broadspectrum 1). The decision in Coles was separately endorsed by the minority in Broadspectrum 2.17 As the majority in Broadspectrum 2 noted, the question has not yet been decided either judicially or by a Full Bench of the Commission other than by way of the observation that once an application for approval of an enterprise agreement has been made to the Commission, bargaining has concluded.18 For reasons of consistency, I do not propose to depart from the current position.
[35] I accept the Unions’ submission that there is no express time limit on bargaining under the Act and that a notification time might well have a sufficient relationship to a proposed enterprise agreement put forward for consideration some months later. The fact that there were nine months between the notification time in this case and the Union’s proposed enterprise agreement is not determinative either way.
[36] That is not to say that there is no effective limit on the capacity to rely on an earlier notification time in connection with a protected action ballot order application. The requirement in section 437(2A) of the Act for a notification time to be “in relation to the proposed enterprise agreement” imposes a limit of a relational kind. The circumstances in which a notification time will relate to a proposed agreement will vary from case to case, but they are not without limits.
[37] Had the Unions proposed an enterprise agreement with MMS at any time prior to the making of the 2018 Agreement, or had the 2018 Agreement not yet been made, in my view the notification time would clearly have had a relevant connection to the Unions’ proposed enterprise agreement. In either scenario, it would have been apparent that MMS had agreed to, or initiated, bargaining for an enterprise agreement to cover some or all of the employees set out above at a time when it had not yet reached agreement with its employees. The terms of any negotiated agreement would have remained to be seen, and the requests of the Unions to bargain on behalf of their members who had become employees of MMS in the intervening period would form part and parcel of the bargaining process agreed to or initiated by MMS.
[38] However, that is not what occurred. MMS initiated a bargaining process by giving the Notice to employees on 15 February 2018. The ensuing bargaining process was successful in the sense that the 2018 Agreement was made (although whether the Agreement was validly made is in contest and that matter is listed for hearing on 13 August 2019). The Unions were not bargaining representatives for any employee who would be covered by the 2018 Agreement at any time before it was made.
[39] The Unions became aware of the existence of the enterprise agreement on 29 May 2018. They did not propose their own enterprise agreements until almost 6 months after that time, and when they did, MMS advised that it had already made an enterprise agreement covering relevant employees and did not agree to bargain while the approval process was pending. This application for protected action ballot orders was then made on 29 July 2019, more than a year after the 2018 Agreement was made between MMS and its employees.
[40] In the circumstances, I am not satisfied that the 15 February 2018 notification time was “in relation to” the Union’s proposed enterprise agreement. It is simply too tenuous a link. That is not to say that there could never be a notification time in relation to the Unions’ proposed agreement. For example, the Unions might seek majority support determinations which will then give rise to a notification time for their agreement(s). Alternatively, if the 2018 Agreement is not approved by the Commission, it is likely that bargaining for an enterprise agreement to cover employees within scope of both the 2018 Agreement and the Unions’ proposed agreement will commence again. As the Unions are now bargaining representatives for employees of MMS, their role in that process will most likely be as of right.
Conclusion
[41] For the reasons above, there has not been a notification time in relation to the Unions’ proposed enterprise agreement. The application for a protected action ballot order cannot be made and it is not necessary to consider further whether the Unions are genuinely trying to reach agreement with MMS.
[42] The application is dismissed.
COMMISSIONER
Appearances:
D Vroland for the CFMMEU
J Gardner for the AMWU
M Follett of counsel instructed by G Simmonds of Seyfarth Shaw for the Respondent
Hearing details:
2019.
Melbourne:
August, 1.
Printed by authority of the Commonwealth Government Printer
<PR710979>
1 Form F34B, Attachment A
2 Form F34B, Attachment A
3 Form F34B, Attachment A
4 Form F34B, Attachment A
5 Exhibit A1 (confidential) and Exhibit A2 at paragraph 17.
6 (2012) 201 FCR 297
7 Post Implementation Review of the Fair Work Act 2009: Towards More Productive and Equitable Workplaces: An evaluation of the Fair Work legislation 15 June 20 12 at page 177-8 and Recommendation 31
8 [2015] FWC 5949
9 Act, section 417(1)(a)
10 [2015] FWC 5949
11 [2016] FWC 4870
12 [2018] FWCFB 6556
13 (2012) 206 FCR 576, [48]
14 JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297, [15]
15 (2012) 206 FCR 576, at [41]
16 [2018] FWC 3974
17 [2018] FWCFB 6556, [52]
18 Uniline Australia Limited [2016] FWCFB 4969, 263 IR 255
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