Coates Hire Operations Pty Ltd T/A Coates Hire v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2017] FWC 2097

[2017] FWC 2097

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute

Coates Hire Operations Pty Ltd T/A Coates Hire
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; Transport Workers' Union of Australia
(B2016/1009)

COMMISSIONER HUNT SYDNEY, 12 APRIL 2017

Negotiation of a new enterprise agreement; dispute involving proposed enterprise agreement

[1] On 15 September 2016, Coates Hire Operations Pty Ltd T/A Coates Hire (Coates Hire) made application to the Fair Work Commission (Commission) pursuant to s.240 of the Fair Work Act 2009 (the Act). The application involves a dispute that has arisen during the negotiation of a new enterprise agreement to cover Coates Hire’s operations across Australia.

[2] The bargaining representatives for employees of Coates Hire include 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 Transport Workers’ Union of Australia (TWU); together with a small number of employees who have appointed themselves as bargaining representatives. Where throughout this Statement I refer to employee bargaining representatives, I do not refer to the individuals who have appointed themselves as bargaining representatives.

[3] The current agreement covering employees is the Coates Hire Operations Pty Limited National Agreement 2012. The agreement’s nominal expiry date is 31 March 2016. The parties have been attempting to bargain on the terms of a new enterprise agreement for a considerable period of time, as early as October 2015.

[4] Conferences have been held by the Commission in Brisbane on 11 October 2016, 21 November 2016 and 24 November 2016.

[5] On two occasions Coates Hire put to employees a proposed agreement without the endorsement of the employee bargaining representatives. On both occasions a majority of employees who voted did not vote to approve the agreement.

[6] On 12 April 2017, a further conference was convened by me in Sydney. All relevant parties participated during the conference.

[7] Having met extensively with the parties since October 2016, it is clear that up until today, the parties remain a considerable distance apart. While some concessions have been made by both Coates Hire and the employee bargaining representatives, there is a considerable distance that will need to be bridged for a majority of employees to vote to approve an agreement.

[8] During today’s conference Coates Hire proposed, for the first time during the negotiations of a new agreement, pay increases to apply during parts of the term of the proposed agreement, together with a sign-on bonus.

[9] Given matters that are in dispute between the parties, particularly relevant to whether continued payments to the National Entitlement Security Trust (NEST) should be made by Coates Hire, the Commission makes the following recommendations to the parties and to third parties who have relevant interest. The recommendations are made also to allow employees of Coates Hire to understand whether, if in a new agreement it was agreed by Coates Hire and the employees that an employee could, at their election, access their individual NEST account and balance, would NEST and the relevant administrator, Coverforce, permit such access?

[10] It is understandable that if Coates Hire is proposing a cessation to it making weekly payments to employees’ NEST accounts, employees voting on such a proposal might wish to know if they can access the money held in their accounts while remaining employees of Coates Hire. Employee bargaining representatives, Coates Hire, NEST and Coverforce should do all things necessary to provide clarity to employees so that they can make an informed decision.

Recommendations

[11] I make the following recommendations:

A. A copy of this Statement is provided by Coates Hire to all relevant Coates Hire employees proposed to be covered by a new enterprise agreement, together with all employee bargaining representatives, the Chairman of NEST (or a delegate), together with the CEO of Coverforce (or a delegate);

B. Coates Hire provide to all employee bargaining representatives and self-appointed bargaining representatives a written copy of the bargaining proposal made by Coates Hire during the conference of 12 April 2017;

C. Coates Hire write to NEST and Coverforce by 13 April 2017, seeking each of NEST and Coverforce’s views as to whether NEST will agree to Coates Hire employees, on their initiative, accessing their individual NEST accounts during their employment with Coates Hire, if an approved enterprise agreement allows employees to access the monies held in their individual accounts (or to that effect);

D. NEST and Coverforce respond in writing by 20 April 2017 with a definitive position on the questions put by Coates Hire to allow Coates Hire employees to become informed as to the accessibility of their NEST accounts under the above scenario;

E. Coates Hire write to my Chambers, to the employee bargaining representatives and self-appointed bargaining representatives by 5.00pm, 20 April 2017 with respect to its position on the proposal of Appendix C in a new agreement, its proposed longevity, and if Coates Hire is interested in proposing a new Appendix D, that being rates of pay somewhere between Appendix B and proposed Appendix C rates of pay. Coates Hire will also state its proposal with respect to the longevity of tier two conditions for new employees regarding annual leave, redundancy and overtime.

F. The employee bargaining representatives should utilise the time between the conference held on 12 April 2017 and 19 April 2017 to canvas with members and employees the proposal put by Coates Hire on 12 April 2017 and canvassed at [8].

G. Upon receipt of the communication of Coates Hire at [11E], the employee bargaining representatives will canvas with members and employees the correspondence of Coates Hire. The employee bargaining representatives will coordinate and issue to Coates Hire and my Chambers a written response by 5.00pm, 28 April 2017. Coates Hire will provide a copy of the communication received and issue it to the self-appointed bargaining representatives.

[12] Undertakings were sought of the employee bargaining representatives during the conference that there not be any protected industrial action during the period of the above recommendation, that being a period of only 12 days. It was expressed to me that undertakings would not be given. It is my recommendation that protected industrial action is not taken during the above period, 12 April 2017 to 28 April 2017, nor should any protected industrial action be taken until a reasonable period of time after receipt by Coates Hire of the bargaining representatives’ written response on 28 April 2017.

[13] The parties are at liberty to seek a further conference to attempt to resolve any bargaining dispute between them.

COMMISSIONER

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