“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v W.H. Heck and Sons Pty Ltd T/A Rocky Point Sugar Mill

[2021] FWC 5322

[2021] FWC 5322

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
W.H. Heck and Sons Pty Ltd T/A Rocky Point Sugar Mill
(B2021/708)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
W.H. Heck and Sons Pty Ltd T/A Rocky Point Sugar Mill
(B2021/713)

The Australian Workers' Union
v
W.H. Heck and Sons Pty Ltd T/A Rocky Point Sugar Mill
(B2021/716)

DEPUTY PRESIDENT ASBURY BRISBANE, 1 SEPTEMBER 2021

Proposed protected action ballot of employees of W.H. Heck and Sons Pty Ltd – s. 443(1)(b) – Requirements for the Commission to be satisfied that each applicant union is or has been genuinely trying to reach agreement – Applications granted.

Overview

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Workers Union (the AWU) (collectively, the Unions) apply for protected action ballot orders in accordance with s.437 of the Fair Work Act 2009 (the FW Act). The applications related to bargaining for a proposed enterprise agreement to cover employees of W H Heck and Sons Pty T/A Rocky Point Sugar Mill (the Respondent/Employer).

[2] It is not in dispute that all requirements in ss 437 and 438 of the FW Act for the making of the protected action ballot orders have been met. The Respondent opposes the making of the orders based on the assertion that the requirements in s. 443(1)(b) have not been met and that the Unions have not been genuinely trying to reach an agreement. The Respondent submits that the requirement in s. 443(1)(b) that an applicant for a protected action ballot order be genuinely trying to reach agreement is “contained within” the good faith bargaining requirements in s. 228 of the FW Act. The Respondent’s argument centres on assertions that the Unions have not:

•  all participated in and attended bargaining meetings;

•  responded to all proposals made by other bargaining representatives in a timely manner; and

•  given genuine consideration to the proposals of the employer bargaining representatives for the agreement and not given reasons for their responses to those proposals.

[3] In oral submissions the Respondent took the submission further and positively asserted that the Unions had made the applications for an ulterior purpose to frustrate the Employer. A telephone hearing for the purposes of determining whether the order should be made was conducted on 26 August 2021. At the hearing, the AMWU was represented by Ms Kate Teague Industrial Advocate; the CEPU was represented by Ms Lisa Midson, Industrial Officer, and the AWU was represented by Mr Terry McQuillan, Industrial Advocate. The Respondent was represented by Mr David Heck, Managing Director.

[4] Evidence in support of the applications was called by each of the Applicant Unions, in the form of the Form 34B Statutory Declarations filed with each application. The statutory declarations were made by:

•  Mr Scott Anton Robert Stanford, State Organiser for the AMWU;

•  Mr Beau Malone, Organiser for the CEPU; and

•  Mr Paul Allen McGrath, Organiser for the AWU.

[5] Mr Stanford, Mr Malone and Mr McGrath were available but not required for cross examination. Evidence for the Respondent was given by Mr Heck, who was also not required for cross examination.

[6] On 27 August 2021 I issued a Decision and Order granting the applications and advised the parties that I would provide my reasons for this in due course. These are my reasons.

Approach to protected action ballot orders

[7] The requirements relating to a protected action ballot are set out in Part 3-3, Division 8 of the FW Act. Section 443(1) of the FW Act provides that the Commission must make a protected action ballot order in relation to a proposed enterprise agreement if:

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

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

[8] As outlined above, the Respondent’s objection to an order being made is based on an assertion that the requirement in s. 443(1)(b) has not been met, on the basis that the applicant Unions have not and are not genuinely trying to reach an agreement. The Respondent also opposes the applications on the basis that the applicant Unions could not be seen to be bargaining in good faith as required by the Act. The Respondent further asserts that where the Applicant Unions are not bargaining in good faith, the Commission could not be satisfied that they were genuinely trying to reach agreement.

[9] The good faith bargaining requirements are set out in s.228 of the FW Act as follows:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

[10] A Full Bench of the Commission in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) and Ors 1 considered an appeal ground against the making of a protected action ballot order which asserted that the Member at first instance had failed to take into account the unions’ alleged non-compliance with the good faith bargaining requirements in s. 226 of the FW Act. After setting out the good faith bargaining requirements in s. 228 of the FW Act, the Full Bench said:

“[16] The appellant contends that while the Unions responded to the proposals it advanced during bargaining they did not provide any reasons for some of those responses, despite being requested to do so. On this basis it is contended that the Unions have not complied with the good faith bargaining requirements, and in particular the requirement that they give reasons for their responses to the proposals of another bargaining representative (see s.228(1)(d)). The appellant submits that the Commissioner gave no real consideration to this matter and that the failure to do so was an error.

…

[18] In any event, while there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.” 2

[11] In support of the observation in [18] the Full Bench referred to a number of decisions of single Members of the Commission including Gostencnik DP in National Union of Workers v Riverland Oilseeds Pty Ltd 3, in which the Deputy President said (citations omitted):

“[16] The question of whether the NUW is genuinely trying to reach an agreement with Riverland requires a finding of fact which is to be arrived at by reference to the circumstances of the particular negotiations. Generally, the determination of this factual question will require consideration of the extent to which negotiations have progressed, the steps taken by the NUW to try and reach an agreement, the nature of the items about which it seeks agreement and the extent to which these have been identified. There must be capacity for the NUW to demonstrate that it has given a considered response to any demands that have been made in the negotiations by Riverland. 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, in my view, to show that the making of an application for a protected action ballot order is a last resort.

[17] Essentially, although not exclusively, it seems to me that Riverland’s objection amounted to an allegation that the NUW was not meeting the good faith bargaining requirements which are set out in s.228 of the Act and therefore, given the nature of its conduct, was not genuinely trying to reach agreement with Riverland.

[18] I firstly state the obvious, and that is, if Riverland was concerned about the NUW not meeting the good faith bargaining requirements then it was always open to it to pursue such remedies as are available for such a contravention under the Act. There is no evidence before me to suggest that such an application either was made or was in contemplation. I do not accept that the evidence of Mr Dobson demonstrates a failure to genuinely try to reach agreement either during the course of the negotiations or currently.

[19] True it is that some of the conduct might fall short of the requirements set out in s.228 concerning good faith bargaining, but the concept of genuinely trying to reach an agreement should not be confused with, or equated to, the good faith bargaining requirements. Self-evidently, a party may not meet a particular good faith bargaining requirement but may, nevertheless, be genuinely trying to reach an agreement.” 4

[12] The words “genuinely trying” as they appear in s.443 of the Fair Work Act are to be given their ordinary meaning. 5 It has been held that a ground for refusal of a protection action ballot order is where an application has been made prematurely or where parties have failed to articulate their positions or have only put their outlines of positions and have not provided responses to demands made by the other side before making the application for a protected action ballot order. In Total Marine Services Pty Ltd v Maritime Union of Australia6a Full Bench said as follows in relation to considering whether sufficient steps had been taken to support a finding that a party has been and is, genuinely trying to reach an agreement:

“[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. 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. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.” 7

[13] However, a later Full Bench in Esso, while specifically endorsing the observations in paragraphs [31] and the first three sentences of paragraph [32] of Total Marine, did not endorse the observations about the requirement for sufficient steps to be taken, including that considered responses to demands made by the other side be provided. Instead, the Full Bench in Esso emphasised that it is not useful to attempt to articulate an alternative test or criteria for s. 434(1)(b) and that the concept of genuinely trying to reach agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations.

[14] In JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia 8 a Full Bench of the Commission held by majority that in the ordinary course of events, where an applicant for a protected action ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act, what can be described as an evidentiary onus shifts to the party or parties opposing the application to demonstrate why that evidence ought not to be accepted. The Full Bench said in relation to such cases:

“[63] In circumstances where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act a finding that the applicant was not “genuinely trying to reach an [enterprise] agreement” within the meaning of s.443(1)(b) will necessarily involve accepting evidence establishing that the applicant had some other, extraneous purpose in seeking the ballot. Indeed, when there is evidence from an applicant for a protected action ballot order that they have been and are “genuinely trying to reach an [enterprise] agreement” under the FW Act, it is difficult to conceive of circumstances where it could properly be found they were not, unless there is cross-examination or other evidence establishing that the applicant in truth has some other, extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act. For example, the evidence may demonstrate that the applicant is pursuing an agreement that it knows or ought reasonably knows would not be an enterprise agreement within the meaning of the FW Act because it contains non-permitted matters contrary to s.172(1) or that the true motivation is to apply pressure in pursuit of political or environmental goals or simply to punish the employer for some perceived wrong doing.” 9

[15] The majority in JJ Richards & Sons Pty Ltd also observed that protected industrial action in support of claims for an enterprise agreement, as authorised by the FW Act, is the only lawful mechanism available to employees to achieve improvements to wages and conditions that an employer is not otherwise prepared to agree to. 10 Further, the Majority in JJ Richards observed that given the need of employees to maintain the real value of their wages, it follows that a union acting as an employee bargaining representative will almost invariably have a genuine reason for seeking an enterprise agreement to cover members who have not had the benefit of a wage increase for some time.11

Evidence and submissions

[16] Before dealing with the evidence and submissions in relation to the present applications, it is necessary to note that there is some history to the bargaining for the agreement, which is proposed to replace the Rocky Point Sugar Mill Enterprise Agreement 2015 (the 2015 Agreement). The Commission as presently constituted was involved in a number of earlier proceedings relating to bargaining between the Unions and the Respondent. Those earlier proceedings were referred to by the Unions and the Respondent in their submissions and statements in the present case. It is appropriate that they be considered as part of the context and the circumstances in which the present applications are made.

[17] The 2015 Agreement nominally expired on 4 May 2017. The parties commenced bargaining for a replacement agreement in or around February 2017, when the Respondent agreed to bargain. On 13 July 2018, a dispute under s. 240 of the FW Act was notified by the employer and the Commission as presently constituted attempted to assist the parties to make an enterprise agreement. 12 Conferences of the parties were conducted on 23 July and 27 August 2018. A proposed agreement was put to employees for ballot in September 2018, and the agreement was not approved by a majority of employees who voted in the ballot. After following up progress with the parties and receiving no advice that further assistance from the Commission was required, the file was closed.

[18] On 14 May and 16 May 2018, I granted applications for a protected action ballot orders made by the CEPU and the AWU 13. The Employer neither supported nor opposed the CEPU application and withdrew opposition it initially indicated to the AWU application. On 14 May 2018, a protected action ballot order was made by Hamberger SDP upon application by the AMWU.14 The Employer did not object to that application being granted. The AMWU’s order was also extended by Hamberger SDP pursuant to s. 459(3) of the Act, in July 2018.15

[19] I also granted an application by the CEPU to extend the 30 day period in which industrial action is authorised by the protected action ballot in July 2018. 16 I granted a second application for a protected action ballot order for the AWU in July 2018 due to an issue with some eligible employees not receiving the ballot to vote in relation to the first application.17

[20] A third protected action ballot order was made by Hamberger SDP upon application by the AWU in October 2018, after action was not taken in the 30 day period relating to the second order. 18 SDP Hamberger also granted a second application for a protected action ballot order for the AMWU in September 2018 after action was not taking in the requisite period authorised by ballot in ordered in the first application.19 An application under s. 459(3) to extend the 30 day period was also made by the AMWU in respect of its second protected action ballot order with the further period being granted by Hamberger SDP in November 2018.20

[21] Bargaining continued and industrial action was taken by employees sporadically until 2020 when the COVID-19 Pandemic impacted. The parties do not dispute that bargaining effectively stalled (through no fault of any party) for a period of around two years, due to the Pandemic and other circumstances.

[22] On 14 June 2021, the AMWU made an application under s. 229 of the FW Act seeking a bargaining order to effectively require the Respondent to meet and confer in relation to an enterprise agreement. That application was also dealt with by me. The AWU and the CEPU attended the conference held in relation to the AMWU application and supported the bargaining order being granted. At the conference, the employer indicated that it would agree to recommence bargaining if it was provided with proof that a majority of employees wished to bargain. To resolve this matter without a contested hearing, I put a process in place whereby the employer provided a list of all employees who would be covered by the proposed agreement and the Unions provided petitions indicating employees who wished to bargain.

[23] Following a comparison of the lists provided by the parties, the employer accepted my view that a majority wished to bargain and consented to recommence bargaining. Consequently, the AMWU withdrew the application for a bargaining order. Given the period of time that had elapsed since bargaining commenced, the Respondent issued new notices of employee representational rights on or around 27 July 2021.

[24] The statements made by various persons in the present proceedings establish that there have been two bargaining meetings subsequent to the notices of employee representational rights being issued, the first on 12 August and the second on 19 August 2021. The statements on behalf of the Unions indicate that the AMWU seeks that the ballot subject of its present application be conducted with respect to 4 members, the CEPU 1 member and the AWU 11 members. Mr Stanford on behalf of the AMWU states that the Respondent has consistently asserted that it is unwilling to agree to any claim put forward by the Unions. Further, Mr Stanford states that the Respondent initially offered a “rollover” of the existing enterprise agreement with no substantive change to terms and conditions, including by not offering any wage increases. Prior to the second meeting on 19 August 2021, the Respondent tabled some 26 matters for discussion. The Unions accept that the Respondent subsequently indicated that it would be prepared to discuss a wage increase based on CPI.

[25] Mr Stanford states that he conducted report back meetings with members after the 19 August meeting and they instructed him to commence the process for obtaining a protected action ballot order to advance their claims. Mr Stanford also states that at the time the application was filed the AMWU and the Respondent had been unable to agree on any claims and major claims such as wage increases remain outstanding.

[26] Mr Malone for the CEPU similarly states that the parties have been unable to reach agreement and that the outstanding log items include wage increases. The CEPU member for whom that Union is a bargaining representative, has instructed the Union to make the application for a protected action ballot order. Mr McQuillan states that the AWU submitted its log of claims to the Employer on 12 August 2021 and that the parties have been unable to reach agreement with several claims remaining outstanding. A majority of AWU members have requested that the Union apply for a protected action ballot order. Statements on behalf of all Unions indicate that they remain genuinely willing to bargain for a new agreement and will continue to comply with good faith bargaining obligations.

[27] Mr Heck states that prior to the first meeting on 12 August 2021 the AMWU sent an email to the Respondent and the other bargaining representatives stating that the first meeting would, as always, deal with rules of engagement and exchange of interests and the second meeting would be the first real bargaining meeting. Mr Heck states the AMWU and the CEPU emailed the Respondent its log of claims on 12 August. Annexed to Mr Heck’s statement was a combined Union log of claims, setting out the following items:

•  CPI catch up of wages since expiry of last agreement.

•  Wages 10% year 1, 4% year 2 and 4% year 3.

•  3 year term.

•  Current expired agreement the basis for the new agreement.

•  Attendance bonus $100 per week.

•  Income protection insurance.

•  Superannuation .5% ahead of SGL

•  Review reclassification level of T/A pay grade for operators in off season.

•  Review of wage rates to other QLD Mills and Local industry.

•  That there be a training clause that ensure all required training be provided

•  a nationally accredited training organisation, and all training and renewal of required tickets are paid for by the company.

•  That all workers be trained in first aid and paid the allowance that is in the current agreement.

•  That there be an allowance for those who preform high risk work at the mill

•  8.1.14 Sugar Boiler and Effet operator allowance stand alone and increased by the quantum

•  Allowances to increase by wage increase.

•  Any other matter raised during negotiations.

[28] Mr Heck provided a response to the combined log of claims on 17 August and outlined the Respondent’s position with respect to each of the above items. Mr Heck states that of the 14 proposals of the Unions, the Respondent only rejected one outright, being the review of wage rates to other Queensland Mills and Local industry, accepted one proposal outright, and with compromise and encouraging further discussion around the other proposals.

[29] At the second bargaining meeting on 19 August, which was conducted by Microsoft Teams, Mr Heck states that only the AMWU and the Respondent were ready to start at 3.30pm, and that the CEPU representative was late to the meeting. Further, Mr Heck states that because the Unions insisted their employee representatives attend the meeting, meeting times were changed to accommodate this, however only the AMWU employee representative attended. Mr Heck states he spoke to the Respondent’s proposal at the meeting but the CEPU left half-way through the meeting, and due to the late start and productive discussions, only the first half of the Employer’s proposals were covered.

[30] Mr Heck states that it was then agreed between the parties that the Union representatives would email their responses on a without prejudice basis (which has occurred) to the Respondent and that a response would be provided prior to the next meeting which was scheduled for the following week. Mr Heck states that the Unions outright rejected all proposals of the Respondent unless there was an acceptable wage increase with there being no further discussion. The exception was a proposal for notice to change overtime shifts, which was rejected outright without explanation by the Unions.

[31] In the Employer Response to the combined log of claims, provided to the Unions on 17 August 2021 and tendered by Mr Heck at the hearing, the Respondent’s position in relation to the Unions wage claim is that it was amenable to discussing an increase to wages “that was underpinned by fact”, such as by reference to the current consumer price index (CPI). The response also states the Employer would not consider a wage catch up since the expiry of the 2015 Agreement but would focus on proposals for changes to conditions moving forward.

[32] The Respondent made the following submissions in support of its contention that the applicant Unions have not been genuinely trying to reach an agreement. There is a reluctance of all representatives to attend meetings, or to attend the full allocated time of meetings and to engage wholly in discussing all proposals and responses. Further, there appears little urgency to hold meetings by the Unions, given the Employer representative flagged two meetings for the week of the hearing to progress matters, but no date could be agreed for this week.

[33] The Respondent also contends that while the Unions responded to the proposals it advanced, they did not provide reasons for rejecting certain proposals put forward by the Employer. Further, the Respondent contends that the taking of industrial action is premature without exhausting all measures to bargain with respect to all proposals and where effectively only one bargaining meeting has been held. According to the Respondent, the industrial action sought to be authorised by the ballots would serve no purpose in the bargaining process other than to antagonise and impact the employer’s business and damage the bargaining process.

[34] The Respondent contends that any action taken would not only impact the operations of the employer, but also the cane farming community and associated businesses that rely on the mill to be operating for their livelihood and that of their employees. The Respondent would not be able to operate on any stoppages of work or any bans, as the nature of its work relies on full employee involvement and undertaking all duties.

[35] The Respondent also referred to the good faithing bargaining requirements under the FW Act, and submits the applications are not in the spirit of good faith bargaining on the following grounds:

•  not all proposals have been discussed nor have responses been made to proposals;

•  no genuine consideration has been given to all proposals, nor the reasons for these proposals, other than by the Union workforce representatives rejecting employer proposals based solely on wage increases without further justification; and

•  insufficient meetings and time have been spent in the bargaining process.

[36] Aside from its submissions relating to the Unions not genuinely trying to reach agreement, the Respondent also outlines an objection to the application on the basis that it believes there would not be an overwhelming majority of employees who would be covered by the proposed Agreement who would support the applications even if all Union members did support the application. This submission is based on the numbers of members identified by the Unions in their applications (16 in total) out of a total of 32 employees who would be covered by the proposed enterprise agreement as set out in the petition provided by the AMWU in earlier proceeding relating to its application for a bargaining order.

[37] In oral submissions, Mr Heck for the Respondent said that the concepts of bargaining in good faith and genuinely trying to reach agreement, could not be separated and that the latter was contained within the former term. Accordingly, the Commission could not make a bargaining order in the present case until the merits of various proposals had been discussed and there had been an attempt to meet part way between the proposals. In this regard, Mr Heck contended that the Unions had responded to his proposals by simply indicating that they were seeking wage increases, which was only one point in the claims. Further, the Respondent’s proposals had been outright rejected, with no reasons being provided.

[38] It was also submitted that the Unions did not genuinely want to make an agreement and had an ulterior purpose in making the applications. That ulterior purpose was said to be to frustrate the employer and not to reach agreement. Further, it was submitted that the making of protected action ballot orders would cause a deterioration rather than an improvement in the bargaining process and constitute intervention by the Commission in bargaining which was not appropriate. In relation to the history of bargaining it was submitted that the bargaining in 2021 should be considered distinct from previous bargaining and constitutes a fresh set of negotiations for the purposes of deciding whether a protected action ballot order should be made.

Consideration

[39] There is no dispute that the requirements in s. 437 of the FW Act for the making of the protected action ballot orders have been met. Each of the Unions is a bargaining representative for the proposed agreement. The proposed agreement is not a greenfields or multi-enterprise agreement. There has been a notification time in relation to the proposed agreement by virtue of the employer issuing a notice of employee representative rights and agreeing to bargain. The applications specify the matters in s. 437(3) of the FW Act. The group of employees to be balloted is consistent with the requirements in s. 437(5). The application is accompanied by documents and information prescribed by the Regulations. As required by s. 438(1) the applications are made more than 30 days after the nominal expiry date of the 2015 Agreement and the notice requirements in s. 440 have been met.

[40] It is not in dispute that the requirements of s. 437 have been met, other than the requirement in s. 437(1)(b). The issue for determination is whether, consistent with the requirement in that provision, the Commission can be satisfied that each Union has been, and is, genuinely trying to reach agreement.

[41] In my view the submissions advanced by the Respondent in opposition to the applications for protected application ballot orders are misconceived. The Respondent’s assertion that the term “genuinely trying to reach agreement” is contained within the good faith bargaining requirements is inconsistent with Full Bench authority. While related, the good faith bargaining requirements and the concept of genuinely trying to reach agreement, should not be conflated. An applicant for a protected action ballot order may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach agreement.

[42] The term “genuinely trying to reach agreement” is to be given its ordinary meaning. In the present circumstances, the Union officials who made declarations in support of the applications, declared that the Unions have been and are genuinely trying to reach agreement. None of the deponents were cross-examined and there is no basis upon which I could refuse to accept their statements on this point. It is also the case that Mr Heck, who expressed views to the contrary in his statement, was not cross-examined. However, even if I accept all of the matters in Mr Heck’s statement, those matters, at worst are conduct that may be inconsistent with good faith bargaining requirements. Mr Heck’s statement is not a basis for a finding that the Union bargaining representatives have an ulterior motive in making the application for a protected action ballot order or that they are attempting to do anything other than to negotiate an enterprise agreement for the benefit of their members.

[43] Non-attendance for all or part of a meeting or being unavailable for a meeting may be a consequence of Union officials having other negotiations and duties to attend to rather than a desire to frustrate negotiations. An outright refusal of a wages offer is also not evidence of an ulterior motive. It is equally probable that such rejection indicates a desire to achieve a wages outcome for members that is higher than what has been proposed. It was contended by the Unions, and not disputed by Mr Heck, that the Respondent’s initial proposal was to roll over the 2015 Agreement with no change to wages and that later the Respondent indicated a preparedness to discuss wage increases based on CPI for years going forward. It is unsurprising that Union officials negotiating a replacement for an agreement that expired four years ago, would not accept such an offer nor see the need to provide an explanation for this position.

[44] Nor do I accept the Respondent’s assertion that parties are required to have discussed the merits of various proposals before a protected action ballot order can be made. Such a requirement would be inconsistent with the purpose of protected industrial action. I also note that the document setting out the Employer’s responses to the claims made by the Unions, tendered by Mr Heck, appears to simply state the Employer’s view about the merits of the claims – for example, the document contains various statements that the claims are ambit claims that are totally unjustified and that wages outcomes should be based on CPI or that the employer is not supportive of particular claims.

[45] While the employer is perfectly entitled to take those views, the response of the employer is not a benchmark against which the genuineness of the Unions’ attempts to negotiate an agreement should be measured. The Unions have advanced claims which have been rejected by the Respondent and the Respondent has advanced claims which have been rejected by the Unions. This is a perfectly normal bargaining scenario and the lack of fulsome grounds for rejection of claims, or an explanation of the reasons for that rejection, is not a basis to refuse to grant an application for a protected action ballot order. Nor is this a basis for a finding that a protected action ballot order is premature.

[46] The Unions have advanced a combined log of claims including items they seek to be the subject of bargaining. The Respondent has provided responses to those claims as set out in a document tendered by Mr Heck. As previously noted, the claims and the responses indicate some distance between the parties. The Respondent also states that the Unions sent written responses to the matters raised by it at the second meeting. This response was not tendered by any of the parties.

[47] Other than an assertion that the Respondent raised some 26 items shortly before the second meeting on 19 August 2021 and that the Unions have responded to those matters (albeit the Respondent states that the response has been outright rejection) there is no evidence about the substance of the matters raised by the Respondent or the responses, including any written responses. Contrary to the views of the Respondent, a rejection of a claim is a response. A party rejecting a claim is not required to provide a detailed reason for refusing to be found to be genuinely trying to reach agreement. I also reject the submission of the Respondent that the parties need to have reached a point where discussions are exhausted or where the merits of competing proposals have been fully debated. That position is contrary to the views of Gostencnik DP expressed in NUW v Riverland Oilseeds and endorsed by the Full Bench in Esso. Nor is there a requirement for an applicant for a bargaining to establish that it has attempted to meet part way between competing proposals to meet the requirement of genuinely trying or having genuinely tried, to reach agreement. Such a requirement would be even more onerous than the good faith bargaining requirements in s. 228, which specially do not include a requirement that concessions are made.

[48] Having considered the evidence of the employer’s responses to the Unions’ claims I do not consider that the Unions’ rejection of those responses indicates that the Unions are not genuinely trying to reach agreement. In my view, the Unions’ rejection of the employer’s responses to their claims are unsurprising. For example, the Unions claimed a CPI based catch up of wages since the expiry of the 2015 Agreement. The employer’s response is that this is seen as an ambit claim and that there has been an opportunity to reach an outcome for wage increases each year, which has not happened since the expiry of the 2015 Agreement. This response simply states the obvious in circumstances where both parties have had a hand in the delay in the negotiation of a replacement for the 2015 Agreement. The employer’s response also states that it is not supportive of a wage catch-up and wishes to focus on proposals for changes to conditions for the new agreement, going forward. Later in response to another claim the employer states that the 2015 Agreement has not expired and is still “very much on foot”

[49] The reality is that the 2015 Agreement reached its nominal expiry date over four years ago, on 4 May 2017. The last wage increase provided for in the 2015 Agreement took effect in May 2016. There is nothing unreasonable about a focus by the Unions on increasing wages and seeking to claim CPI based increases for the period since the 2015 Agreement expired, just as there is nothing unreasonable about the Employer rejecting those claims. In short, there is nothing about the status of bargaining in the present case, to indicate that the Unions are not genuinely trying to reach agreement.

[50] I accept that there may be other cases where an application for a protected action ballot order which is made after two meetings, one of which discussed the rules of engagement rather than substantive claims, may be premature and indicative of lack of genuinely trying to reach an agreement. However, in all of the circumstances, including the background to the negotiations and the time that has elapsed since the 2015 Agreement expired, this is not such a case. I do not accept the Respondent’s submission that negotiations started in 2021 when the latest round of bargaining commenced and that previous negotiations should not be considered. Those previous negotiations are part of the overall circumstances and context in which the protected action ballot applications should be considered.

[51] For completeness, I do not accept the other points raised in opposition to the applications by the Respondent. The Respondent’s view that the granting of protected action ballot orders and protected action which may result from such orders would serve no purpose other than to antagonise the Respondent and impact on its business, misses the point. The purpose of protected industrial action is to impact on an employer’s business and to cause disruption. An employer who is subjected to protected industrial action may be antagonised to the point where its position hardens in the face of such action. However, that is a risk taken by employees who engage in protected industrial action and it is their right to do so for the purpose of advancing bargaining claims. Similarly, employers who resist claims in circumstances where a ballot consistent with the requirements of the FW Act has authorised protected industrial action, risk their operations being disrupted. This is also a risk those employers are entitled to take. That an employer’s business will be adversely impacted by protected industrial action is not a basis to refuse a protected action ballot order.

[52] It is also the case that a protected action ballot can authorise industrial action only by employees who are represented by the bargaining representatives who made the application for such an order. In the present case, a ballot which approves the taking of industrial action will only authorise action by employees who are members of the Union applicants. The fact that those employees may not be a majority of the Respondent’s employees is irrelevant to the question of whether a protected action ballot order should be made. The order requires that a ballot be conducted by the Australian Electoral Commission or another ballot agent, for the purpose of determining whether the employees to be balloted wish to engage in particular protected industrial action. The Commission is not required to be satisfied that the employees to be balloted constitute a majority of employees to be covered by the proposed agreement.

Conclusion

[53] For these reasons, I do not accept that the Unions in the present case have not been, and are not, genuinely trying to reach agreement. The other requirements for the making of protected action ballot orders having been met, there is no basis upon which I could refuse to make the orders sought in the applications and I am required by virtue of s.443 of the FW Act to make those orders. Accordingly, I decided to grant the applications and orders to that effect issued on 27 August 2021.

DEPUTY PRESIDENT

Appearances:

Ms K Teague for the AMWU.

Ms L Midson for the CEPU.

Mr T McQuillan for the AWU.

Mr D Heck for the Respondent.

Hearing details:

26 August.

2021.

By telephone.

Printed by authority of the Commonwealth Government Printer

<PR733260>

 1   [2015] FWCFB 210.

 2   Ibid at [16] – [18].

 3   [2013] FWC 5914.

 4   Ibid at [16] – [19].

 5   John Holland Pty Ltd v AMWU [2010] FWAFB 526 at [38].

 6   [2009] FWAFB 368.

 7   Ibid at [31] – [32].

 8   [2010] FWAFB 9963.

 9 Ibid at [63].

 10   Op. cit. at [33] Citing a Full Bench of the Commission in CFMEU v Woodside Burrup [2010] FWAFB 6021 at [27].

 11   [2009] FWAFB 368 at [33].

 12   B2018/603.

 13   B2018/335; B2018/358.

 14   B2018/357.

 15   B2018/556.

 16   B2018/569.

 17   B2018/587.

 18   B2018/891.

 19   B2018/836.

 20   B2018/1034.