Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Rocla Pty Limited T/A Rocla Pipeline Products
[2009] FWA 508
•5 OCTOBER 2009
[2009] FWA 508 |
|
|
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Rocla Pty Limited T/A Rocla Pipeline Products
(B2009/10746)
The Australian Workers' Union
v
Rocla Pty Limited T/A Rocla Pipeline Products
(B2009/10733)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 5 OCTOBER 2009 |
Proposed protected action ballot by employees of Rocla Pty Ltd t/as Rocla Pipeline Products.
[1] The following decision was given in transcript over the course of the hearing on 2 October 2009 in relation to an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the AMWU”) and the Australian Workers' Union (“the AWU”) for protected action ballot orders.
[2] The applications were in near identical terms and concerned the same employer – Rocla Pty Ltd trading as Rocla Pipeline Products (“the Employer”). Both unions are party to the Gailes Rocla Pty Ltd Collective Agreement 2006-2009. Both unions seek to be covered by a new, successor single enterprise agreement and it appears on the witness evidence before me that the unions are bargaining as a single bargaining unit, as it were (though as bargaining representatives in their own right).
[3] Given s.439 of the Fair Work Act 2009 (“the Act”), which contemplates joint applications being made to Fair Work Australia (“FWA”), I have joined these two applications and heard them in common, with the concurrence of the parties, and will decide the matters which are common to the parties by a single decision. I will, nonetheless, make separate orders in respect of each discrete application. The Act gives no evidence of making provisions for consolidated orders in such circumstances, and each applicant union (in this case) should be separately liable, as it were, for its subsequent conduct.
[4] But for the most part some minor editing to remove redundancies in the main (evidenced by the use of parenthesis […]) and the introduction of paragraphing, the decision as given in transcript at the time. I undertook to publish it without delay, and I now do so.
[5] With all other requirements of the Act having been disposed of without contention, this decision in transcript concerned three contested questions raised by the representative for the Employer, the Australian Industry Group (“AIG”). The questions all went to the general precondition to an application as stipulated at s.443(1)(b) of the Act, which reads:
“443 When FWA must make a protected action ballot order
(1) FWA 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) FWA 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.” (my emphasis)
[6] Broadly put, the three questions that AIG posed (by way of its submission) over the course of the hearing were:
(i) should an application for a protected action ballot order under s.437 of the Act be “a last resort”, such that an application should not be granted if it is “premature”;
(ii) is an applicant for a protected action ballot order under s.437 of the Act required to disclose the entirety of its agreement agenda and desired content before it can meet the requirements of the good faith bargaining provisions (s.228 of the Act) and otherwise satisfy the precondition that it has and is genuinely trying to reach agreement; and
(iii) should the failure by an applicant for a protected action ballot order under s.437 of the Act to respond to an amended offer put to it 48 hours prior to the application (under s.437 of the Act) being made tell against the applicant’s genuineness in trying to reach an agreement (for purposes of s.443(1)(b) of the Act)?
Question (i): should an application for a protected action ballot order under s.437 of the Act be “a last resort”, such that an application should not be granted if it is “premature”?
[7] “The [three] issues that are agitated by Mr Turner (of the AIG) are of some interest and they raise a number of important considerations for the purposes of defining whether or not an applicant or applicants in this case have genuinely tried and are genuinely trying to reach an agreement.
[8] In the first instance, Mr Turner raises an issue that the application is premature. In some instances it is indeed the case that an application for a protected action ballot under section 437 of the Act may be precipitous. In the ordinary circumstances it would be a matter of some surprise if an application under section 437 of the Act were a first resort and, in most instances, it is a course of action of some later resort but not a first resort. […]
[9] I can envisage circumstances in which there might be some profound or structural blockage to negotiations that might cause an application under section 437 to indeed be a first resort, but they are hypothetical situations and […] not the circumstances that are currently before me.
[10] It is a question of some judgment, therefore, as to whether or not and at what point an application ceases to be premature in ordinary circumstances and becomes a reasonable course on the part of the applicant, or applicants in the current case. I should also add there is some other layer of complexity to this as well and the other layer of complexity is that the employer has indicated to me by submission, and it seems to be uncontested, that the full body of the applicants' terms and conditions as sought by its desire to reach an agreement have not been completely disclosed or exhaustively disclosed to the employer at the time of this application or else have only been disclosed in more substantive terms recently.
[11] […] In respect of those two matters I think difficult issues of judgment arise but, nonetheless, the Act requires that a judgment be reached in respect of these matters.
[12] In the first instance, what is an appropriate time period over which discussions ought to take place?
[13] Again that is a matter […] that will turn on fact and circumstances. In this case it appears to be common ground between the parties that over the course of the last six weeks there have been five meetings held and that the meetings have been productive, constructive and have resulted in concessions. It would appear to me that in such circumstances, whilst it is always to be hoped ideally that industrial action would not be a course of action that would be resorted to lightly, that […] is a different proposition to whether or not an application can be made for a protected action ballot […]. [I therefore do not agree that the applications before me are “premature” in the sense argued by AIG.]”
Question (ii) is an applicant for a protected action ballot order under s.437 of the Act required to disclose the entirety of its agreement agenda and desired content before it can meet the requirements of the good faith bargaining provisions (s.228 of the Act) and otherwise satisfy the precondition that it has and is genuinely trying to reach agreement?
[14] “The second […] and related issue which I want to address in this decision in transcript is whether or not it is necessary to disclose the entire contents of an agreement for purposes of determining whether or not an employer or an applicant union or unions have conducted themselves in conformity with section 228 of the Act.
[15] Section 228(1)(d) [of the Act], in my view, does not create an obligation on the part of an employer or a union [or a bargaining representative] to disclose the entirety of the content of an agreement for purposes of meeting the requirement of genuinely trying to reach agreement or for purposes of a finding that the parties have been conducting themselves in good faith. It is, of course, necessary that the parties conduct themselves reasonably in the bargaining environment that has been established under the Fair Work Act 2009 [but that is a distinguishable issue].
[16] It will always be a matter of fact and circumstance as to whether or not the parties have provided sufficient information and have put their positions clearly so that the bargaining process can be conducted in a reasonable and on an informed basis. It would, of course, raise issues of genuineness in respect of whether or not a party is genuinely trying to reach agreement and […] its effort is directed genuinely towards that goal, if the employer or the employee had not disclosed any element of its agreement or else had disclosed only partial elements of agreement which were not sufficient to generate the basis of an in principle agreement or else to found a basis for further consequential agreement.
[17] In the matter before me, I'm aware that a log of claims was put to the employer on 6 August 2009 and that log of claims, which was the subject of the discussions which were characterised by Mr Turner as having been fruitful and constructive and involving concessions from both sides. [The log of claims] included the wage increase, the duration [of the agreement], long service leave matters, various sick leave matters, the incorporation of bonuses into base rates and an income protection scheme as well.
[18] It would appear to me that the content […] as put by the applicant unions in this regard is sufficient to found a sensible and reasonable interaction on the part of the parties for the purposes of progressing bargaining and for the purposes of subsequently reaching an agreement.
[19] In my view, if it were a requirement implied from section 228, section 412(3) or section 443(1)(b) of the Act that an employer or [the] applicant unions must disclose a full copy of their agreement for the purposes of progressing bargaining, issues would arise as to: how that requirement might be ultimately fulfilled where there might be new matters brought onto the agenda over the course of the bargaining process that were not originally envisaged [or] that might arise through various compromises; or by afterthought; and other issues might arise where […] the agreement has been deficient in technical matters or machinery considerations which might therefore also create an unusual and onerous burden upon both the employers and employees in exhausting and fully complying with any requirement to fully disclose the content of the agreement that they are seeking at any one time.
[20] As the parties here would well realise, the content of an agreement is a matter that is often, but not always, but is often a matter of development and evolution over the course of the bargaining cycle.
[21] As a consequence, therefore, I am not able in this current position to reach a finding on what is before me that there has been inadequate disclosure of the applicant unions’ respective bargaining positions by way of adequate disclosure of the content that they seek for the purposes of the inclusion in their agreement.
[22] In my view, examining the log of claims and the characterisation of the progression of the discussions in the context of those claims, there is sufficient [evidence] in the facts and circumstances before me to satisfy me that there has been adequate disclosure of the respective bargaining positions, such that bargaining was able to be conducted on a genuine basis and that the requirements of the good faith bargaining provisions of the Act have also been met.”
Question (iii): should the failure by an applicant for a protected action ballot order under s.437 of the Act to respond to an amended offer put to it 48 hours prior to the application (under s.437 of the Act) being made tell against the applicant’s genuineness in trying to reach an agreement (for purposes of s.443(1)(b) of the Act)?
[23] “It arises, finally, as to whether or not a recent offer put to the applicant unions […] ought to give me cause for concern or doubt as to whether or not the respective unions are acting in either good faith, that is, in respect of section 228(1)(c) of the Act, that is responding to proposals made by the other bargaining representatives for the agreement in a timely manner, and (d) thereof, giving genuine consideration of the proposals of the bargaining representatives of the agreement and for giving reasons for the bargaining representatives' response to those proposals.
[24] In the last 48 hours another amended wages offer has been put to the applicant unions in respect to the agreement negotiations that are on foot. […] The two applications [before me] were made [on the 29 August 2009 and 1 October 2009]. It would appear to me to be a difficult conclusion to reach that a decision that would have been reached, that is at a date prior to 1 October 2009 to make these applications that are currently before me ought to be compromised or set aside by subsequent developments that arise within a previous 48 hour period.
[25] That is, there is an intermingling of the timeline between the decision making to make the application and the amended wages offer by the employer. In such circumstances of that it would not be possible for me to conclude, given that intermingling of chronologies, […] that the absence of any response to that wages claim 48 hours ago ought to give rise to a finding that there has been non-compliance with section 228(1)(c) and/or (d) of the Act in relation to the good faith bargaining provisions, [or] such that I should by inference draw a conclusion that the AMWU and the AWU are not genuinely trying to reach agreement.
[26] In other circumstances, of course, if the time period had been different, if the wages offer had occurred a week ago perhaps, seven days prior to the application, just to propose an indicative timeframe, and there had been no response to the wages offer and the application had then been made, then an inference may be drawn that the conduct of the unions in respect of this matter may not comply with section 228(1) of the Act and that an inference ought to be drawn as a consequence that they were not genuinely trying to reach an agreement.
[27] But for the reasons that I've given […] it is not possible for me to reach that conclusion in the current circumstances that are before me in which the timeframes have meant that the decision making for purposes of making the application and the opportunities to examine the latest wage offer have overlapped.
[28] […] That concludes my reasoning in respect of the issues that have been raised by Mr Turner on behalf of the employer in relation to compliance with section 443(1)(b) of the Act and section 443(2) of the Act.”
SENIOR DEPUTY PRESIDENT
Appearances:
S Fentiman for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries UnionA Turner of the Australian Industry Group for Rocla Pty Limited
Hearing details:
2009.
Brisbane.
2 October.
Printed by authority of the Commonwealth Government Printer
<Price code {C}, PR989681>
0
0
0