“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)-Victorian Branch v Able Industries Engineering Pty Ltd

[2019] FWC 7285

[2019] FWC 7285

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)-Victorian Branch
v
Able Industries Engineering Pty Ltd
(B2019/1211)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 24 OCTOBER 2019

Proposed protected action ballot of employees of Able Industries Engineering Pty Ltd; whether AMWU has been genuinely trying to reach an agreement with the employer; satisfied that AMWU has been genuinely trying to reach agreement; order issued.

[1] Since March 2019, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) as a bargaining representative for a proposed enterprise agreement has been pursuing an agreement that will cover Able Industries Engineering Pty Ltd (Able Industries) and certain of its employees. On 16 October 2019, the AMWU applied under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to employees of Able Industries who will be covered by the proposed agreement and for whom the AMWU is a bargaining representative.

[2] On 17 October 2019, my Associate was advised that Able Industries objected to the application on the basis that the AMWU has not been genuinely trying to reach an agreement with Able Industries, with the consequence that one of the pre-conditions in s.443 of the Act to making a protected action ballot order has not been satisfied.

[3] In the circumstances, the matter was listed for hearing on 21 October 2019. At the conclusion of the hearing, I announced my decision to grant the application and make the order sought and later that day I made the order. 1 These are my reasons for my decision.

[4] On or about 13 February 2019, Able Industries gave a notice of employee representational rights to employees to be covered by the proposed agreement, which if made will be titled the Able Industries Engineering Pty Ltd Enterprise Agreement 2019. On or about 26 March 2019, Able Industries was notified that the employees would like the AMWU to represent them in bargaining for the proposed agreement. 2

[5] On or about 17 June 2019, the parties commenced formal bargaining for the proposed agreement. 3 The AMWU provided a log of claims to Able Industries on 18 June 2019 and on or about 1 July 2019, the parties met to discuss the claims.4 The parties also met on or about 25 July 2019 to discuss the log of claims.5 Two further meetings were arranged for 13 and 26 August 2019, however Mr Robert Nguyen of the AMWU did not attend.6

[6] On 10 September 2019, Mr Nguyen notified Able Industries that he was going on leave and that Mr Tony Hynds would attend on his behalf at a meeting scheduled on 12 September 2019. This was said to be too short of notice for Able Industries and the meeting was rescheduled for 24 September 2019. 7

[7] On 24 September 2019 and 4 October 2019, the parties met to discuss the log of claims and the intention to replace the existing clauses on consultation, flexibility and dispute resolution. 8 On both occasions, the AMWU asked Able Industries why it had not provided a written response to the log of claims first given to it in June 2019. On 8 October 2019, Able Industries provided its response to the log of claims.9

[8] On 15 October 2019, Mr Hynds of the AMWU advised Able Industries by email that the employees have rejected its offer. The email read as follows:

“Hi Graham

As you know I met with the employees on the Thursday the 10th and they have rejected the company's offer. We would like to remove the following two things of our log of claims

Relocation clause

Job site allowance $75.00

Can you also please respond on what the companies (sic) position is on the clauses I sent you on the 25th September.

The members have also instructed me start the process of applying for a protect action ballot which you will be notified shortly.

We are happy to meet with you if the company has changed its position on our claims Look forward to hearing from you” 10

[9] Since this application was lodged a further bargaining meeting has been scheduled.

[10] None of the factual chronology set out above is in dispute. It is derived from statements of evidence tendered in the proceedings without objection in circumstances where the makers were not required for cross-examination.

[11] The requirements for making a protected action ballot order are set out in Part 3-3, Division 8 of the Act. An order will only be made on application relevantly, by a bargaining representative of an employee who will be covered by a proposed enterprise agreement. It is common ground that the AMWU is a bargaining representative for the proposed agreement of at least some of the employees who will be covered by it. It is also not in dispute that the nominal expiry date of the current agreement has passed 11 and that the AMWU has served a copy of its application on Able Industries and the Australian Electoral Commission, within 24 hours of making the application. It is also not disputed that there has been a notification time for the proposed agreement, and that the notification time preceded the application. It follows that the application for a protection action ballot order may be made.

[12] A protected action ballot order may only be made in limited circumstances 12 and the Commission does not have the discretion, other than to make an order, if it is satisfied that:

(a) there has been an application made under s.437; 13 and

(b) the applicant (in this case the AMWU) has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. 14

[13] It is common ground that the AMWU has made a valid application under s.437 of the Act. The AMWU maintains that it has been and is genuinely trying to reach an agreement with Able Industries, the employer of the employees who are to be balloted. 15 

[14] For its part, Able Industries submits that the application is premature as the AMWU has not yet taken sufficient steps before its application to satisfy the Commission that it has genuinely tried to reach agreement. 16 Able Industries correctly submits that a consideration of whether there can be satisfaction of the circumstances set out in s.443(1)(b) requires consideration of two elements involving temporal aspects.17 The element at issue here is whether on the evidence the AMWU ‘has been’ genuinely trying to reach an agreement with Able Industries before the application was made.

[15] Able Industries relies on [31]-[32] of Total Marine Services Pty Ltd v Maritime Union of Australia 18 submitting that there must be consideration of the “extent of progress and the steps taken in order to try and reach an agreement” and it would normally be expected that the applicant would have provided a “considered response to any demands by the other side.”19 Able Industries gives the following three reasons why the Commission ought not to be satisfied that before the application the AMWU had been genuinely trying to reach agreement:

•  three scheduled meetings did not occur because the AMWU’s representative did not attend and the meetings that did occur, occurred before Able Industries’ written response on 8 October 2019 and the rejection of the offer on 10 October 2019. It says that a further meeting was required to communicate at least some of the reasons as to why the position was rejected and to identify the areas of agreement/disagreement; 20

•  the email rejection on 10 October 2019 is not a “considered response” as there has been no explanation as to why the offer has been rejected and to what extent the AMWU has taken Able Industries’ arguments into account; 21 and

•  the application pre-empts Able Industries’ opportunity to set out in writing its position as to matters the AMWU first raised on 25 September 2019. 22

[16] The AMWU submits that Able Industries’ objection is intended to further delay the making of an agreement and to delay or prevent its members from exercising their rights under law. 23 It says that its objection is difficult to comprehend given the lengthy delay in responding to the AMWU’s log of claims.24 The AMWU says that it has met its obligation by attending and participating in several meetings with Able Industries and it has been in regular contact with the employer by email.25 Further, it submits that it is not unusual to seek to have meetings rescheduled where representatives on both sides are busy professionals with a multitude of demands.26 It argues that its application cannot be said to be premature given that it is made more than 7 months after the process began.27

[17] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers’ Union (AWU) (Esso), 28  a Full Bench of the Commission reviewed relevant Full Bench and Federal Court of Australia decisions concerning the question of whether a bargaining representative has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Relevantly for present purposes, extracts of the decision in Esso are reproduced below:

“[33] A number of Full Bench decisions have considered the meaning of ‘genuinely trying to reach an agreement’ in s.443(1)(b) . . .

[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were ‘put to one side’; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified. In the course of its decision the Full Bench expressed the following views about s.443(1)(b):

“[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.”

[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad)

…

[47] The Full Bench decisions to which we have referred were all decided prior to the decision of the Full Court of the Federal Court in J.J Richards Sons Pty Ltd and Another v Fair Work Australia and Another. The applicants in that matter had contended that s.443 should be construed in a way which conditioned its operation upon bargaining having commenced. The Full Court rejected this proposition and held that a protected action ballot order under s. 443(1) of the Act may be made even though bargaining between an employer and employees has not commenced. Jessup J held, at [30]-[31]:

“However, notwithstanding that perception, and notwithstanding my disagreement, in one important respect, with the reasons of the Full Bench, it is not possible to construe s 443(1)(b) as the applicants would propose. I agree with the Full Bench that the contrast between the references to bargaining in Pt 2-4 of the Act, and the words actually used in s 443(1)(b) is striking. I accept that, under s 15AA of the Acts Interpretation Act 1901 (Cth), an interpretation should be favoured which would best achieve the purpose or object of the legislation. That is no basis, however, for the introduction of additional requirements or conditions which might have been, but which have not been, enacted. There is every reason to perceive in s 443(1)(b) a departure from the scheme of regulated bargaining set out by Pt 2-4 of the Act and, in that sense, there is a certain tension with the object referred to in s 3(f). Such a perception, however, would relate to the consistency of the implementation of legislative policy. It would contribute little or nothing to the task of construction which confronted the Full Bench.

In sum, the applicants’ case really amounts to no more than the proposition that the legislature ought, consistent with the structure and policy of the Act as a whole, have conditioned the power to make an order under s 443 upon the circumstance of bargaining having commenced. However, that was a step which the legislature did not take, and it is a step which FWA could not take. There was no jurisdictional error in the protected action ballot order made by FWA on 16 February 2011 and confirmed by the Full Bench on 1 June 2011.”

[48] As to the question of whether a bargaining representative has been and is genuinely trying to reach an agreement, Flick J said:

“It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant … is … genuinely trying to reach an agreement with the employer” unless:

•  an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and

•  the employer has foreshadowed — even in the most general of terms — its attitude as to the proposed agreement.

More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:

•  bargaining to have commenced within the meaning of and for the purposes of s 173, found within Pt 2-4 of the Fair Work Act.

So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement … ”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” — on one approach to construction — perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement — let alone genuinely tried to reach agreement.” 

[49] Tracey J agreed with Jessup and Flick JJ that on its proper construction s.443(1) could not be construed in the manner contended by the applicants:

“There is simply no warrant to read into the subsection words of limitation which do not appear. The legislature has required that FWA must make a protected action ballot order if the two conditions prescribed by s.443(1) are satisfied even if bargaining between an employer and employees has not commenced.” [Endnotes omitted]

[18] It seems to me that Esso was then and remains a correct statement of the law so far as it applies to the consideration of the circumstances set out in s.443(1)(b). Ultimately, the question whether in a given case a bargaining representative has been and is genuinely trying to reach an agreement with an employer will turn on the facts and circumstances of the bargaining in that case.

[19] The foundation underpinning Able Industries’ submission that I cannot be satisfied that the AMWU has been trying to reach an agreement with it, is the rejection to its offer without any explanation and the lodgement of the application before the scheduling of a further meeting to discuss their positions on matters of agreement/disagreement. In other words, it is said that the AMWU has failed to give a considered response to Able Industries’ position before rejecting the offer. Consequently, Able Industries contends the application is premature. This last submission is rejected as it is founded on a proposition articulated in Total Marine Services that “[P]remature 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”, 29 that has been rejected in Esso.30 Self-evidently, the proposition in Total Marine Services seeks to erect a decision rule that an insufficient number of steps taken by an applicant in relation to reaching an agreement will have the result that an application for a protected action ballot order will not succeed. The language of s.443(1)(b) of the Act does not support such an approach.

[20] As to the first part of the submission, although no reasons were articulated for the rejection of the offer, it does not follow that the AMWU has not been genuinely trying to reach an agreement with Able Industries. This is a complaint that may be remedied by an application for bargaining orders. In any event, I consider it is palpably clear the email rejection is communicating that, save for the two matters identified, the AMWU and its members reject the remaining positions advanced by Able Industries because they continue to seek an agreement which meets the claims articulated in its log of claims. Moreover, there have been several bargaining meetings and communication between the parties about the proposed agreement and a further meeting has been scheduled. It must also be noted that Able Industries took several months to respond to the AMWU’s log of claims. Although this is conduct of the employer and not the AMWU, it is nevertheless relevant in reviewing and assessing the overall conduct of the AMWU in so far as it is relevant to the questions posed by s.443(1)(b). When the uncontested evidence is viewed in its totality and in context, I am satisfied that the AMWU has been, and is trying to reach an agreement with Able Industries.

[21] For the reasons given, I am satisfied that a valid application has been made under s.437 of the Act and that the AMWU as the applicant has been, and is, genuinely trying to reach an agreement with Able Industries, the employer of the employees who are to be balloted.

[22] As earlier indicated, an order was made on 21 October 2019 [PR713575].

DEPUTY PRESIDENT

Appearances:

R Wainwright for the AMWU.

M Champion of Counsel for Able Industries Engineering Pty Ltd.

Hearing details:

2019.

Melbourne:

October 21.

Printed by authority of the Commonwealth Government Printer

<PR713574>

 1   PR713575

 2   Exhibit 2, Statement of Evidence Stephen Martyn dated 18 October 2019 at [2]-[3]

 3   Ibid at [4]; Exhibit 1, Witness Statement of Tony Hynds dated 21 October 2019 at [2]

 4   Exhibit 2 at [4]-[5]; Exhibit 3, Able Industries Engineering Log of Claims 2019

 5   Exhibit 2 at [6]

 6   Ibid at [7]-[8]

 7   Ibid at [9]; Exhibit 1 at [4]-[8]

 8   Exhibit 2 at [10]-[11]; Exhibit 1 at [8]-[12]

 9   Exhibit 4, Able Industries Engineering response to AMWU/members log of claims 2019

 10   Exhibit 5

 11   [2017] FWCA 3812 at [6]

 12   Fair Work Act 2009 (Cth), s.443(2)

 13   Ibid at s.443(1)(a)

 14   Ibid at s.443(1)(b)

 15   Statutory Declaration of Joshua Gardner dated 16 October 2019 at [2]; Applicant’s Submissions dated 21 October 2019 at [6] and [9]-[45]

 16   Respondent’s submissions dated 17 October 2019 at [3] and [25]

 17   Coles Supermarkets (Australia) Pty Ltd v Australasian Meat Industry Employees Union [2015] FWCFB 379 at [45], [48]-[49]

 18 (2009) 189 IR 407

 19   Respondent’s submissions dated 17 October 2019 at [5] and [24]

 20   Ibid at [26]

 21   Ibid at [27]

 22   Ibid at [28]

 23   Applicant’s submissions dated 21 October 2019 at [4]

 24   Ibid at [11]

 25   Ibid at [16]-[17]

 26   Ibid at [21]-[26]

 27   Ibid at [34]

 28   [2015] FWCFB 210

 29 (2009) 189 IR 407 at [32]

 30   [2015] FWCFB 210 at [35]