Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing...
[2016] FWC 6512
•12 SEPTEMBER 2016
| [2016] FWC 6512 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2016/950 & B2016/952)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 12 SEPTEMBER 2016 |
Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd T/A Transfield Services (Australia) Pty Ltd.
[1] On 8 September 2016 I made protected action ballot orders in respect of applications made by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively “the Unions”). In so doing, I indicated that I will publish my reasons for the decision to make the orders in due course. These are my reasons for that decision.
[2] Certain employees of Broadspectrum (Australia) Pty Ltd (Broadspectrum) are covered in their employment with Broadspectrum by the Transfield Services Greenfields LMM Enterprise Agreement 2013-2016 (Agreement). The nominal expiry date of the Agreement, namely 30 September 2016, has not yet passed. The AMWU is covered by the Agreement.
[3] On 1 June 2016, the AMWU, the CEPU and Broadspectrum commenced bargaining for a proposed enterprise agreement. Each of the AMWU and the CEPU is a bargaining representative for the proposed agreement.
[4] It is not in contest thatsince bargaining commenced there have been a number of bargaining meetings through the period of July 2016 to August 2016 and that each of the AMWU and the CEPU have clearly outlined the claims that they make in respect of the proposed agreement. Likewise, it is not in contest that Broadspectrum has advanced particular claims and that as matters presently stand there remain a number of outstanding issues, the resolution of which stands in the way of making the proposed agreement.
[5] By applications lodged on 1 September 2016, the AMWU and the CEPU each applied for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (Act). Broadspectrum opposes the making of a PABO and in the event that a PABO is made, Broadspectrum seeks an order pursuant to s.443(5) that the period of written notice referred to in paragraph 414(2)(a) be longer than three working days. It seeks that the protected action ballot order specify a longer period of seven working days.
Consideration
[6] Broadspectrum maintains that since 9 August 2016 it cannot be said that the Unions have been and are genuinely trying to reach an agreement with Broadspectrum. This contention is advanced on two bases. First, it is said that on 9 August 2016 during a negotiation session for the proposed agreement, the Unions advised Broadspectrum that as the differences between the Unions and Broadspectrum as to the proposed enterprise agreement were too wide there was no point in continuing negotiations.
[7] The rationale for the position adopted by the Unions is explained in correspondence from the AMWU to Broadspectrum dated 11 August 2016, the text of which is reproduced below:
“The company (BRS) and AMWU have to date held nine days of negotiations to replace the Transfield Services LMM Greenfields Enterprise Agreement 2013-2016 (the agreement).
During those negotiations, the parties have progressively exchanged various drafts of amendments to numerous provisions, with the AMWU having prepared many of the different formulations. They (the parties) have reached an accommodation on a number of provisions which had previously been in contention.
Notwithstanding the above, the AMWU advised BRS on Tuesday 9th August that the parties were a long way apart and unlikely to be able to bridge their differences on the following aspects of the proposed agreement:
¬ the method of determining pay increases;
¬ the nominal expiry date;
¬ the balance to be struck between work and family life;
¬ classification coverage; and
¬ retention of reference to the status quo ante (expressed differently) in the successor to the current agreement's subclause 11.7.
Additional to the above, the AMWU notes that in negotiations on 22nd July you sought the following amendments to the first paragraph of the current agreement's clause 47 - Right of Entry:
¬ insertion of the word "representative" before the phrase "duties or functions under this Agreement"; and
¬ the provision of "some level of notice".
The AMWU tabled a redraft of the current clause on 9th August which sought to accommodate your proposed amendments. Your response was to require that the period of notice to be given should be 48 hours, twice that required by the Act and a position not previously articulated by you. The AMWU perceives your new position as having been adopted capriciously and as being inconsistent with an intention to finalise negotiations.
As foreshadowed on Tuesday 9th August, the AMWU held a national telephone hook-up of its delegates today. That hook-up was unanimous in its belief that there is no point to further negotiations unless and until BRS revises its attitude towards it workforce and its position on those issues still in contention.
You implied on Tuesday that BRS may continue negotiations with individual bargaining representatives and may take the outcomes to a vote of its LMM workforce.
The AMWU stands ready to continue the negotiations for a new agreement in the event that either the company:
¬ puts a proposed agreement to a vote of its workforce and that agreement is rejected; or
¬ revises the bargaining position it held on Tuesday.”
[8] It is evident on the face of the correspondence that the Unions are not suggesting that they do not wish to reach an agreement with Broadspectrum about the proposed enterprise agreement. Rather, the correspondence makes clear that the Unions see no point in continuing negotiations whilst Broadspectrum maintains its position on outstanding matters. The Unions make clear that further discussions can and will occur in the event, inter-alia, that Broadspectrum revises its bargaining position.
[9] There are a number of legitimate ways in which the Unions might persuade Broadspectrum to alter its bargaining position. One such method might be to continue negotiations to persuade Broadspectrum of the merits of the Unions’ position in respect of outstanding matters. Another method might be to organise protected industrial action in support of claims for a proposed agreement. That the Unions have opted for the latter course in preference to the former is not an indication that the Unions have not been or are not now genuinely trying to reach agreement.
[10] The position adopted by the Unions is consistent with adopting a hard bargaining approach to the proposed enterprise agreement. That is, the Unions seek agreement on the terms proposed by them in relation to the matters outstanding. Moreover, there is nothing in the material which suggests that Broadspectrum has organised further negotiating sessions and invited the Unions to attend those sessions. To the contrary, in correspondence from Broadspectrum to the AMWU of 19 August 2016, Broadspectrum indicates that it is still considering the position adopted by the Unions to the negotiations and it reserves its right to request employees to approve the proposed agreement that it is advocating. Nothing in that correspondence suggests that there should be further discussions. Indeed for strategic reasons, about which I make no criticism, Broadspectrum suggests that it might put the proposed agreement that it advances directly to employees for approval.
[11] There is nothing in the material about the course of bargaining between the parties since 9 August 2016 which would lend support to a conclusion that the Unions have not been and are not now genuinely trying to reach an agreement with Broadspectrum.
[12] The second basis for the contention that the Unions had not been and are not genuinely trying to reach an agreement relates to the claim advanced by the Unions dealing with right of entry. Broadspectrum contends that the claim advanced is a claim for a non-permitted matter because it concerns an unlawful term as it provides for an entitlement to enter premises to hold discussions of a kind referred to in s.484 of the Act other than in accordance with the right of entry provisions of the Act. The provision concerning right of entry sought by the Unions as at 9 August 2016 is as follows:
“Notwithstanding any other provision of this Agreement, an official of the Union may enter premises where work is done under this Agreement in order to carry out representative duties or functions under this Agreement. Without being exhaustive, such duties or functions include those arising under sub-clauses 9.2, 11.3 or 17.6. Entry will be subject to prior notice having been given by the Union official or the consent of the Company. Where notice has been given, entry will not be refused.
For the avoidance of doubt, this right of entry does not extend to any entry which is made:
(a) for a purpose referred to in s.481 of the Fair Work Act 2009 (“the Act”), which deals with investigation of suspected contraventions;
(b) to hold discussions of a kind referred to in section 484 of the Act; or
(c) in order to exercise a State or Territory OHS right.
Such entry must be in accordance with Part 3-4 of the Act (which deals with right of entry).”
[13] It is evident from the above provision that the clause seeks to confer a right of entry in circumstances other than those provided for under the Act. The additional right sought to be conferred relates to the exercise of representative duties and functions. Such duties and functions are often associated with an employee exercising a right of representation in the context of mandatory terms in enterprise agreements relating to consultation and dispute resolution. Moreover, it is to be observed that the provision reproduced above is not a new provision. A right of entry provision exists in the current Agreement. The provision reproduced above is a modified version of the existing provision and is aimed at addressing concerns raised by Broadspectrum during negotiations about some ambiguity or uncertainty in the operation of the current provision. That is evident from the correspondence sent to Broadspectrum from the AMWU dated 11 August 2016 earlier reproduced.
[14] The provision on its face is not clearly a non-permitted matter and is a negotiating position adopted by the Unions in response to concerns raised by Broadspectrum in respect of a provision in its current Agreement. The pursuit of the claim when it is not so obviously a non-permitted matter does not result in a conclusion that the Unions have not been and are not genuinely trying to reach agreement with Broadspectrum.
[15] In any event as a Full Bench of the Fair Work Commission (Commission) made clear 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) 1that a bargaining representative advancing claims for a non-permitted matter, does not in and of itself mean that the bargaining representative has not been and is not genuinely trying to reach an agreement, rather the pursuit of claims for a non-permitted matter is a consideration to be taken into account in the overall assessment of the factual circumstances.
[16] Section 437 enables a bargaining representative to apply for a PABO. Section 437(1) provides:
“A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.”
[17] Excepting the restriction on making an application in ss.437(2A) and 438(1), the Commission must make a PABO in relation to employees who will be covered by a proposed agreement in the circumstances set out in s.443. There is no contest that the restrictions do not apply in the instant case. Section 443 relevantly provides:
“443 When FWC must make a protected action ballot order
(1) 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) 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) 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).”
[18] The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular bargaining. 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. Neither is it appropriate nor possible to establish rigid rules for the required point of bargaining that must be reached. All of the relevant circumstances must be considered in assessing whether an applicant for a PABO has met the test in s.443 of the Act. This will frequently involve considering the extent of progress in negotiations, and the steps taken in order to try and reach an agreement. 2
[19] To the extent that it is suggested that there has been a failure to meet good faith bargaining requirements, it must be borne in mind that although 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. An applicant for a PABO may not meet a particular good faith bargaining requirement, but may nevertheless be genuinely trying to reach an agreement. 3
[20] For the reasons given earlier, I am not persuaded that either of the bases alone or in combination advanced by Broadspectrum support a conclusion that the Unions have not been and are not genuinely trying to reach an agreement with Broadspectrum. To the contrary, the totality of the evidence and in particular the evidence given by Mr Damian King 4, an official of the CEPU, and Mr Mike Nicolaides5, an official of the AMWU, supports overwhelmingly the conclusion that each of the Unions has been and is genuinely trying to reach agreement with Broadspectrum and I so find.
[21] As earlier indicated, Broadspectrum seeks an order pursuant to s.443(5) that the period of written notice referred to in paragraph 414(2)(a) be longer than three working days. It seeks that the protected action ballot order specify a longer period of seven working days. The evidentiary basis for seeking the additional period is set out in the evidence of Mr Michael McDowell, the Contract Manager for Broadspectrum in relation to the Land Material Maintenance contract with the Department of defence as follows:
“Broadspectrum is an essential services provider to the Department of Defence's for Land Materiel Maintenance. The services provided to Defence include but are not limited to:
a. Maintaining operational availability of all-land based military vehicles and equipment, including;
i. Armoured fighting vehicles;
ii. Troop movement vehicles;
iii. Weapons; and
iv. Essential life-saving electronic equipment
The work required to be performed by the employees is both planned and reactive to the operational requirements of Defence. In some cases, the work arises on short notice and requires immediate action. As an example, returnable equipment into active service on short notice. Failure to meet this requirement may result in Defence not being able to undertake their military/operational activities.
The work is specialised in nature and appointing alternative labour resources on short notice will be difficult to arrange especially due to site access and security requirements.
The additional 4 days' notice as sought by Broadspectrum would allow Broadspectrum and Defence to make necessary arrangements to ensure that the essential services provided to Defence are not compromised. The additional time would provide Broadspectrum and Defence opportunity to coordinate and prioritise work activities and essential deliverables.”
[22] Although the Unions did not cross-examine Mr McDowell on this evidence, the state of the evidence is such that it provides an insufficient basis upon which I might be satisfied that there are exceptional circumstances which might warrant the exercise of my discretion to require a further period of written notice. As Broadspectrum seeks a longer period of notice for any protected industrial action, it bears the evidentiary onus of establishing that there are exceptional circumstances which would warrant the order sought. The evidence, in its present state, falls well short of discharging that onus. In particular, Broadspectrum does not provide any details as to the nature of its contractual obligations, which of the various forms of industrial action the subject of the PABO application will have the result alleged, or how that industrial action might have the consequence alleged. Nor does Broadspectrum provide any details as to the mitigating steps that are available to it or to the Department of Defence in response to the various forms of industrial action that are proposed in the PABO applications, how quickly those steps might be taken or the impediments, if any, that might stand in the way of the steps being effective.
[23] In short, the evidence amounts to no more than a plea for more time to enable Broadspectrum to organise itself in anticipation of industrial action. It is doubtless the case that most if not all employers faced with an application for protected action ballot order would like additional period of grace. But in of itself, neither that desire nor the evidence before me establishes that there are exceptional circumstances which would warrant the consideration of the exercise of my discretion to require a further period of notice of industrial action. In these circumstances, I am not satisfied that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than three working days.
Conclusion
[24] I am satisfied that each of the AMWU and the CEPU, as a bargaining representative for the proposed agreement and applicant for a PABO, has been and is genuinely trying to reach agreement. I am also satisfied that neither restriction on making an application in ss.437(2A) and 438(1) operates to prevent the application. I am satisfied and it was not in contest that the other statutory criteria have been met.
[25] A protected action ballot order in each case has be made and separately issued in PR585216 and PR585219.
DEPUTY PRESIDENT
Appearances:
Mr M Nicolaides for the AMWU.
Ms E Barnes for the CEPU.
Mr D Dal Bon on behalf of Broadspectrum.
Hearing details:
2016.
Melbourne.
8 September.
1 [2015] FWCFB 210.
2 Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; (2009) 189 IR 407 at [32]-[33]; 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)[2015] FWCFB 210 at [34]-[35].
3 See the decisions of Gostencnik DP in NUW v Riverland Oilseeds Pty Ltd [2013] FWC 5914 at [17]-[ 19]; Hamberger SDP in TWU v CRTGroup Pty Ltd[2009] FWA 425 at [26], and Lewin C in NUW v SKF Australia Pty Ltd[2010] FWA 6557 at [19] - [21]; endorsed by 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); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers' Union (AWU)[2015] FWCFB 210 at [18].
4 Exhibit 1.
5 Exhibit 2.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR585282>
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