Boom Logistics Limited v Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWC 6416

[2018] FWC 6416

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Boom Logistics Limited
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/5680)

COMMISSIONER RIORDAN SYDNEY, 16 OCTOBER 2018

Alleged industrial action at Boom Logistics Ltd.

[1] This decision is to be read in conjunction with [2018] FWC 6331 (earlier Decision), which was published on 12 October 2018. This decision provides further reasons for my finding that the Respondent was not participating in pattern bargaining and was genuinely trying to reach an agreement with the Applicant.

Statutory Provisions

[2] Section 418 of the Act states:

“FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

[3] Section 412 of the Act states:

“Pattern bargaining

(1) A course of conduct by a person is pattern bargaining if:

(a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and

(b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and

(c) the course of conduct relates to 2 or more employers.

Exception—genuinely trying to reach an agreement

(2) The course of conduct, to the extent that it relates to a particular employer, is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer.

(3) For the purposes of subsection (2), the factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include the following:

(a) whether the bargaining representative is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the agreement;

(b) whether the bargaining representative is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees;

(c) whether the bargaining representative is meeting the good faith bargaining requirements.

(4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies.

Genuinely trying to reach an agreement

(5) This section does not affect, and is not affected by, the meaning of the expression ‘genuinely trying to reach an agreement’, or any variant of the expression, as used elsewhere in this Act.”

[4] Section 413 of the Act states:

“Common requirements

(1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.

Type of proposed enterprise agreement

(2) The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi-enterprise agreement.

Genuinely trying to reach an agreement

(3) The following persons must be genuinely trying to reach an agreement:

(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement--the bargaining representative;

(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement--the bargaining representative of the employee.

Notice requirements

(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.

Compliance with orders

(5) The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement:

(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement--the bargaining representative;

(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement--the employee and the bargaining representative of the employee.

No industrial action before an enterprise agreement etc. passes its nominal expiry date

(6) The person organising or engaging in the industrial action must not contravene section 417 (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.) by organising or engaging in the industrial action.

No suspension or termination order is in operation etc.

(7) None of the following must be in operation:

(a) an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement;

(b) a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement;

(c) a serious breach declaration in relation to the agreement.”

[5] On 6 September 2018, Dean DP held, based on the evidence before her, that the Respondent was engaged in pattern bargaining and was not genuinely trying to reach agreement. Her Honour published an Order in accordance with section 418 of the Fair Work Act, 2009 (the Act), stating that the intended industrial action will not be protected industrial action.

[6] The Respondent has clearly taken heed of the concerns expressed by Her Honour and modified its behaviour in relation to its log of claims and negotiation practices. As it turns out, the Full Bench contemplated and endorsed this change of behaviour as a way to alleviate the concerns found by Her Honour. Relevantly the Full Bench held:

“[38] It is, we consider self-evident, given the basis for concluding that the industrial action was not or would not be protected action, that the circumstances which led to that conclusion might change over a relatively short period. This might occur, for example, by the Appellant altering in a significant way the terms that it seeks to be included in one or other of the proposed agreements the subject of bargaining with WGC and Boom. The Appellant might also or in the alternative, take steps to engage in bargaining discussions with one or other of WGC and Boom aimed at addressing the matters identified in s.412(3). Putting to one side the Appellant’s construction of s.412(1)(b), it would be unsurprising in the face of the findings made by the Deputy President that the Appellant might take steps to alter the terms that is seeking to include in a proposed agreement and/or alter the approach that it takes in bargaining with WGC and with Boom in order that its conduct is no longer caught by s.412. The prospect that further industrial action taken, organised or threatened pursuant to the ballot authorisation would not be protected industrial action by reason of a course of conduct that is pattern bargaining was, by no means inevitable or certain. The circumstances which led the Deputy President to have concluded that the organised and threatened industrial action would be unprotected industrial action could quickly change and yield a different conclusion. These are considerations that are, in our view, plainly relevant to assessing the duration of any order proscribing conduct relating to a strike which appears to be unprotected industrial action by reason of a course of conduct of the Appellant that is pattern bargaining.

[40] We are unable, respectfully, to discern any rational connection between the period of operation of the orders and the purpose for which they were required to be made. It does not appear to us, on the face of the decisions, that the Deputy President took into account the reason that the industrial action being organised and threatened is not or would not be protected industrial action or the fact that the circumstances are capable of change within a relatively short period, to assess the length of the period of operation of the orders. In the circumstances of this case, s.418(1) only required orders to operate for a period sufficient to ensure that the strike not be organised and that the threatened strike not occur. It appears to us that a period of operation of three months was clearly excessive given the circumstances which led to the Deputy President concluding that the industrial action organised and threatened was or would be unprotected industrial action. Consequently, and for the reasons given, we consider that the Deputy President was in error in fixing a period of operation of three months in respect of each order. In our view, a period of operation of two weeks in the circumstances would be more than sufficient to ensure the strike not be organised and that the threatened strike not occur. It would also give the Appellant time to modify or moderate its conduct vis-à-vis bargaining, without inappropriately interfering with the right of the bargaining representative and the employees whom it represents access to an otherwise legitimate form of pressure exercisable during bargaining.” 1

(my emphasis)

[7] The Applicant submitted that the actions of the Respondent, are a ruse, a claim vehemently denied by Ms Mallia. To substantiate this submission, the Applicant tabled a comparison prepared by Minter Ellison between the proposed BOOM Logistics Agreement and that of Wheeler Cranes and Services Pty Limited. Despite objections from the Respondent, this document was marked MFI-1. The Respondent argued that it was at a disadvantage on the basis that it was unable to cross examine any representative from Wheeler Cranes in relation to its negotiations.

[8] After examining the content of MFI-1, I note that there are differences between the two proposed agreements, such as, the provision of protective clothing, the cashing out of accumulated untaken person carers leave, provisions in relation to maintenance employees, provisions in relation to standing by, shift cancellation and the taking of RDO’s, significant differences in relation to the classification structure and a substantial number of special provisions in relation to employees of the Applicant employed at Singleton. I took this into account.

[9] I also note that the proposed agreements include a substantial number of common provisions which replicate the Modern Award. These provisions would apply to these parties anyway if they were not included in the agreements simply because the modern Award is to be incorporated into the agreements. These types of provisions are commonplace across most industrial sectors for one simple reason, ie, convenience. The process of industrial relations at the workplace is conducted in a far more conducive manner by the presence of a single document detailing an employee’s wages and conditions. From my 30 years’ experience in the construction industry, like every other industry in which I have had dealings, employers, employees and union officials all benefit from the convenience of only having to read and interpret a single document. I took this into account.

[10] I also note that the last negotiations that had taken place between the Respondent and Wheeler Cranes was in August which was, before the decision of Her Honour where she found that the Respondent was involved in pattern bargaining. As I stated earlier, the conduct of the Respondent prior to 6 September 2018 is of little or no consequence to this decision. The simple fact is that the Respondent has changed its conduct since the decision of Her Honour and the Full Bench. I took this into account.

[11] Based on the principles of procedural fairness, I have given little weight to MFI-1. However, even after a cursory look at the comparison, it is evident that the proposed agreements are not the same. I took this into account.

[12] I have taken into account that the Respondent has acted in a manner contemplated by the Full Bench. The Full Bench basically invited the Respondent to dramatically change the way that it had been negotiating with one of the parties in order to satisfy section 412 and 413 of the Act. Having followed the advice of the Full Bench, it would be inconsistent for the Commission, as presently constituted, and unfair to the Respondent to adopt a different outcome. I took this matter into account.

[13] The taking of protected industrial action is a component of the Australian industrial landscape. If a party satisfies all of the requirements of the Act then employees and employers have a statutory right to be involved in this activity. I took this into account.

[14] This is an unusual case where the Applicant had complained that the Respondent was pattern bargaining and not genuinely trying to reach agreement. After Her Honour agreed with the Applicant that this was the case, the Respondent changed its behaviour. The Respondent has recently been conducting itself in a manner contemplated by the Full bench.

[15] In reaching my decision to not issue an order under section 418 of the Act, I took into account all of the submissions and evidence that was submitted by the parties. The fact that an issue is not mentioned in either this Decision or the Decision on 12 October 2018 does not mean that the issue was not taken into account.

[16] For the reasons stated above and on 12 October 2018 in the earlier Decision, the application was dismissed.

COMMISSIONER

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 1   [2018] FWCFB 6200 at [38] and [40].