Coles Supermarkets (Australia) Pty Ltd v Australasian Meat Industry Employees Union
[2015] FWCFB 379
•30 JANUARY 2015
| [2015] FWCFB 379 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
The Australasian Meat Industry Employees Union
(C2014/8432)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 30 JANUARY 2015 |
Appeal against decision [[2014] FWC 8868] of Commissioner Gregory at Melbourne on 17 December 2014 in matter numbers B2014/1576 and B2014/1607 – Permission to appeal is refused.
[1] This decision arises out of an appeal by Coles Supermarkets Australia Pty Ltd (Coles) against a decision by Commissioner Gregory on 17 December 2014. 1 The appeal is directed to his decision to make orders for protected industrial action ballots, consequent upon separate applications by the Victorian and Tasmanian Branches of The Australasian Meat Industry Employees’ Union (AMIEU),2 lodged on 11 November 2014 and 17 November 2014 respectively.
[2] The two orders made by Commissioner Gregory were in relation to:
1. “All employees of Coles Supermarkets Pty Ltd employed in the State of Victoria who are members of the applicant Union, and for whom the applicant Union is the bargaining representative, and who will be covered by the proposed enterprise agreement”; 3 and
2. “All employees of Coles Supermarkets Pty Ltd employed in the State of Tasmania who are members of the applicant Union, and for whom the applicant Union is the bargaining representative, and who will be covered by the proposed enterprise agreement.” 4
[3] Section 443 of the Fair Work Act 2009 (the Act) provides that:
“(1) The 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) the 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.”
[4] No issue arises in the appeal concerning s.443(1)(a) of the Act. 5
[5] The actual principles were not in dispute. 6
[6] There is no issue in the appeal “as to the facts considered” by Commissioner Gregory. 7
[7] The issues in the appeal concern the application of the principles in relation to genuinely trying to reach agreement to the facts of the matter and one question of statutory interpretation.
[8] The appeal grounds of Coles identify the following issues in its appeal:
(a) The correct identification of the “proposed agreement” which was the subject of the application for a protected action ballot order (PABO);
(b) The determination of whether an applicant for a PABO must be genuinely trying to reach agreement not only at the time of the Fair Work Commission’s (the Commission) decision but also as at the date of the application for the PABO; and
(c) Whether in fact the AMIEU was genuinely trying to reach an agreement with Coles in relation to the proposed enterprise agreements the subject of the applications for the two PABOs.
[9] Each appeal ground concerns s.443(1)(b) of the Act and the satisfaction of Commissioner Gregory that the Victorian and Tasmanian Branches of the AMIEU had been, and were, genuinely trying to reach an agreement with the employer of the employees to be balloted.
[10] The circumstances of the bargaining to which the PABOs made by Commissioner Gregory relate are unusual. The AMIEU only represented meat workers engaged by Coles to work in its supermarkets and it participated in the bargaining to the extent of representing meat workers. The negotiations between Coles and the AMIEU in respect of meat workers occurred in the context of broader negotiations initiated by Coles with a view of obtaining agreement to an enterprise agreement to apply to all retail employees (including meat workers) within Coles stores, with the Shop, Distributive & Allied Employee’s Union (SDA) being the primary union bargaining representative in respect of that broad group of employees. The primary issue in the negotiations between Coles and the AMIEU was, at all times, the scope of an agreement to be made. Coles at all times pressed for the making of a single agreement covering all retail employees whilst the AMIEU sought an agreement or agreements applying only to meat workers.
The circumstances in which the decision and bargaining orders were made
[11] It is common ground that satisfaction that an applicant for a PABO has been, and was, “genuinely trying to reach an agreement with the employer” is to be determined in the particular circumstances of a matter. 8 The circumstances of the bargaining in which the PABOs subject to the current appeal were made are as follows.
[12] The enterprise bargaining negotiations in which the AMIEU was involved, which preceded the applications for PABOs, were initiated on 7 April 2014 by Coles with a view to concluding an agreement to replace the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited Retail Agreement 2011 9(the Retail Agreement). The Retail Agreement had a nominal expiry date of 31 May 2014. Coles wrote to the AMIEU and three other unions – the SDA, The Australian Workers’ Union (AWU) and the Transport Workers’ Union (TWU) – indicating that it intended to commence negotiations for a new enterprise agreement covering all supermarket employees nationally.
[13] The Retail Agreement covers meat workers in Queensland and the Northern Territory. Meat workers in other States are covered by separate State specific agreements. The employees in Victoria and Tasmania, the subject of the PABOs, are covered by two separate State based Agreements:
• The Coles Supermarkets Australia Pty Ltd & AMIEU Victorian Meat Agreement 2011, 10 which has a nominal expiry date of 31 August 2014.
• The Coles Supermarkets and AMIEU Tasmania Meat Agreement 2011, 11 which has a nominal expiry date of 30 June 2014.
[14] Meat workers in the remaining States and Territories are covered by:
• The Coles Supermarkets (Australia) Pty Ltd & Bi-Lo Pty Ltd & AMIEU NSW/ACT Agreement 2012, 12 which has a nominal expiry date of 15 March 2015;
• The Coles Supermarkets South Australia Meat Agreement 2012, 13 which has a nominal expiry date of 31 August 2015; and
• The Coles Supermarkets (Australia) Pty. Ltd. and Australasian Meat Industry Employees’ Union Western Australian Agreement 2012, 14 which has a nominal expiry date of 3 April 2015.
[15] At the outset of the negotiations on 22 April 2014, Coles made plain its intention to reach a single enterprise agreement covering all retail employees nationally, including meat workers.
[16] Twenty bargaining meetings have occurred, following the initiation of bargaining by Coles.
[17] At the first meeting, on 22 April 2014, the AMIEU indicated that it sought the “status quo” of the continuation of State based meat agreements. The AMIEU also indicated that it had not expected to be bargaining at that time, was caught unprepared for bargaining and was unable to express a position other than the AMIEU’s preference was for the continuation of State based meat agreements, separate to the agreement in respect of other retail employees of Coles.
[18] In the meeting on 2 June 2014 Mr G Smith, the Federal Secretary of the AMIEU, presented an AMIEU log of claims, titled “Condition Retention Document”. In addressing the log of claims, Mr Smith stated the AMIEU is opposed to the Coles proposal for a single retail agreement and the basis for that opposition – that it would unfairly disadvantage the AMIEU’s members and the ability to negotiate their rights. He indicated that the AMIEU had been defensive of State based agreements for meat workers, but, in the circumstances, it would be prepared to have a single “meat” agreement, covering all meat workers (including those in Queensland and the Northern Territory covered by the Retail Agreement). He indicated that the AMIEU was prepared, as a compromise position, to agree to the creation of a single meat department agreement applying nationally, as each existing agreement reached its expiry date and set out the terms and conditions to apply to meat workers, with differentiation between some terms and conditions between States, with some transitioning to common terms and conditions. He also indicated the AMIEU’s acceptance of some matters in the Coles proposed agreement, as they would apply to meat workers. Mr Smith, explained that the AMIEU did not accept the Coles proposal for a single national agreement for all supermarket employees. Mr Smith also indicated that the terms and conditions claimed were sought by the AMIEU whether in respect of its proposal or the Coles proposal. The terms and conditions were discussed in the meeting. The senior Coles negotiator thanked Mr Smith for the AMIEU proposal and recognised that it represented a significant departure from the past position of the AMIEU.
[19] Further claims in respect of a national meat agreement were made by the AMIEU at the fifth bargaining meeting on 27 June 2014.
[20] The AMIEU’s claims in respect of a national meat agreement were further discussed during bargaining meetings of 18 July, 25 July and 30 July 2014.
[21] On 6 August 2014, the Victorian Branch of the AMIEU applied for a PABO under s.437 of the Act. 15 The application was withdrawn, on transcript, during proceedings on 11 August 2014.
[22] On 1 September 2014, the AMIEU applied for a scope order under s.238 of the Act. 16 The application was discontinued on 20 November 2014.
[23] In its application, the AMIEU sought a scope order which would result in bargaining for two proposed agreements:
• One with a scope reflecting the Coles position, other than those non-salaried employees who work in supermarket meat departments; and
• One with a scope reflecting coverage of non-salaried employees who work in supermarket meat departments.
[24] In AMIEU’s correspondence of 6 and 8 August 2014, to Coles, SDA, AWU, TWU and other bargaining representatives known to the AMIEU, in compliance with s.238(3) of the Act, the AMIEU made it clear that its detailed log of claims was directed to preserving more favourable working conditions of meat workers, relative to retail employees generally within Coles, in respect of both current and future meat department employees. The correspondence indicated that these conditions were at risk in a national retail agreement, given the numerically small proportion of meat department employees of the total retail workforce. The correspondence stated:
“The AMIEU considers that for meat department employees to be able to bargain fairly and efficiently in relation to their conditions, they should be permitted to bargain for an enterprise agreement (or agreements) that cover meat department employees exclusively. This could be negotiations for separate state agreements (as currently exist) or, if Coles preferred, a single enterprise agreement covering all meat departments nationally.”
[25] The AMIEU’s claims were further discussed during bargaining meetings of 9 September, 23 September, 24 September, 13 October, 14 October and 28 October 2014, during which meetings various Coles claims were agreed to by the AMIEU, subject to the agreement of a national meat agreement.
[26] In a further meeting on 5 November 2014, Mr P Conway of the Victorian Branch of the AMIEU reviewed the history of the negotiations indicating that at the first meeting the AMIEU “verbally” advised of its preference to retain State based meat agreements. He stated that the AMIEU had reviewed that position in “good faith” and proposed “a national meat agreement” and that the AMIEU had provisionally agreed to some Coles’ claims on the basis of a national meat agreement. He indicated that the AMIEU needed a “clear response” from Coles as to whether there was any basis on which Coles would agree to a national meat agreement, to which the senior Coles negotiator stated that the position of Coles “had not changed” – it continued to press for a single agreement covering all store employees. Mr Conway advised that on that basis, the AMIEU was reverting to its preferred position of State based agreements in respect of Tasmania, Victoria and Queensland (in respect of the expired agreements) and the other States would seek that outcome in respect to replacement agreements for their current agreements when they expired. The AMIEU representatives in respect of Tasmania and Victoria withdrew from the negotiations, on the basis that they would no longer participate in the negotiation of a national agreement to apply to all retail employees. Mr Conway indicated that the position in respect of the scope application would be considered by the union’s legal people and the AMIEU was in a position to apply for PABOs in respect of members covered by expired agreements.
[27] Neither Mr Smith nor Mr Conway attended the next bargaining meeting on 6 November 2014.
[28] Mr Smith wrote to Coles on 14 November 2014 clarifying the “bargaining position” of the AMIEU. In the correspondence indicated that in the absence of any indication by Coles of any basis upon which it would move from its position of a national agreement covering all store employees in favour of a national meat agreement, the AMIEU:
“[c]ontinue to press our claims for agreements to cover all meat-unit employees either by way of state-based agreements to replace the current ones or our compromise offer of a single national meat agreement. This has been our position all throughout these negotiations.”
[29] The correspondence also indicated that the AMIEU had elected to seek PABOs:
“As we cannot get any sense from you in order to progress our proposal to compromise with a national meat-unit agreement, nor to discuss renewal of our state-based arrangements, . . .”
[30] The correspondence continued:
“We continue to try to reach agreement with Coles and will do it either on a state-based or national meat-unit [basis] . . . We will continue to assert the position that we have from the outset of these negotiations which is that we want to retain our state-based agreements but to date you refuse to answer us or negotiate those arrangements. We will continue to offer our compromise position of a national meat-unit agreement but to date you have refused to answer us or negotiate those arrangements.
We have not presented separate logs of claims for each state yet as we have put a lot of effort into our compromise position of a national meat-unit arrangement. Also there was no need for separate logs on the basis that we were asking for the current existing meat agreements to be maintained i.e. in their current format, but for clarity we will now submit further logs of claims by our NSW, Queensland, Victorian, Tasmanian and SA/WA branches at the next meeting . . .”
[31] The PABO applications were made on 11 November 2014 (Victoria) and 17 November 2014 (Tasmania).
[32] Victorian and Tasmanian logs of claims were provided to Coles at the conclusion of a bargaining meeting on 19 November 2014.
[33] During a further bargaining meeting on 24 November 2014, Mr Smith asked Coles for its position in respect of the AMIEU claim for State based meat agreements. The senior Coles negotiator indicated that Coles would consider the AMIEU log of claims (provided to Coles after a bargaining meeting on 19 November 2014) but had not changed its bargaining position – for a national retail agreement – at that time.
[34] At a further bargaining meeting on 1 December 2014, Coles advised the AMIEU that the claim for State based agreements was rejected.
[35] The scope of any new agreement to apply to the Victorian and Tasmanian meat workers was the central issue and an area of disagreement between the AMIEU and Coles throughout the negotiations. Coles at all times pressed for the making of a single agreement covering all retail employees. At no time during the negotiations did it deviate from its intention to reach a single enterprise agreement covering all retail employees nationally, including meat workers and at no stage did it indicate a preparedness to enter into an agreement of some other scope, including the making of State based agreements in respect of those meat workers covered by expired agreements or a national agreement in respect of only which were the two positions as to scope put by the AMIEU. In respect of the employees it represented, the AMIEU at all times sought an agreement which only applied to meat-unit employees, either through the continuation of existing State based meat agreements, with agreements in respect of meat workers in Victoria and Tasmania to replace expired agreements (its primary position) or, as a compromise position, a national meat agreement which would apply to Victorian and Tasmanian employees (and Queensland and Northern Territory meat workers to whom the existing Coles retail agreement applied) and then, progressively, meat unit employees in other States as their current agreements reached their nominal expiry dates. This position was reflected in the negotiations and associated AMIEU correspondence in relation to the bargaining. Coles and the AMIEU were in disagreement at all times in the negotiations about the scope of an agreement which would apply to the Victorian and Tasmanian meat workers and discussions as to terms and conditions were at all times conditional on agreement in relation to scope of any agreement reached in respect to those workers.
The decision of Commissioner Gregory
[36] In his decision, Commissioner Gregory:
• Set out at length the evidence and submissions of the parties. 17 It is not suggested that he misunderstood or misstated the factual circumstances before him in doing so.
• Identified and applied relevant authorities in relation to s.443(1)(b) of the Act 18 – Maritime Union of Australia, The v Swire Pacific Ship Management (Australia) Pty Ltd19(Swire), Total Marine Services Pty Ltd v Maritime Union of Australia20 and JJ Richards & Sons Pty Ltd and Another v Fair Work Australia and Another21(JJ Richards). The Commissioner had particular regard to the section of Swire dealing with authorities on genuinely trying to reach agreement at paragraphs 57–63 of that decision and the observations of Flick J in JJ Richards, at paragraphs 58–59.
• Applied the statutory test in s.443(1)(b) of the Act, informed by the authorities he cited, to the circumstances of the AMIEU bargaining in the enterprise bargaining negotiations, expressing his satisfaction, notwithstanding changed positions over the course of the bargaining, that the AMIEU had been and was genuinely trying to reach an agreement for State based agreements to apply to its Victorian and Tasmanian members.
Consideration
[37] We address each of the three appeal issues in the appeal raised by Coles.
The correct identification of the “proposed agreement” which was the subject of the application for a PABO
[38] Coles submitted that the Commissioner erred in that he did not clearly identify the “proposed agreement” in relation to which the AMIEU was required to have been and to be genuinely trying to reach agreement in relation to and erroneously conflated the State based agreements and the national meat agreement which the AMIEU had proposed during the bargaining.
[39] We are not persuaded that the Commissioner erred in his decision in the manner suggested by Coles. In considering the question in s.443(1)(b) of the Act of which Commissioner Gregory needed to be satisfied in order to make the orders, the Commissioner carefully considered the course of the negotiations between Coles and the AMIEU and the positions advanced by the AMIEU in them. He correctly found that the AMIEU’s preferred position throughout was for the maintenance of existing State based meat agreements, although it developed and explored with Coles a compromise position of a single meat agreement, in order to achieve separate agreements in respect of meat workers. From the point of view of the AMIEU, the national meat agreement proposal, like its preferred position of State based agreements, would, if accepted by Coles, avoid meat workers being subsumed into a national retail agreement as sought by Coles. In respect of the compromise position, the AMIEU sought a response from Coles as to what would be required to have Coles agree to that compromise position. On 5 November 2014, in the absence of any indication that the AMIEU’s compromise position might be acceptable to Coles, the AMIEU reverted to its preferred position of seeking State based meat agreements.
[40] Discussions also occurred between Coles and the AMIEU in relation to the terms and conditions which would apply to meat workers, subject to agreement as to scope.
[41] Coles contended that Commissioner Gregory erred in conflating the bargaining in respect of the AMIEU proposal for a national meat agreement and its proposal for continued State based Agreements in respect of meat workers in Victoria and Tasmania. We are satisfied that Commissioner Gregory addressed himself appropriately to the bargaining between the AMIEU and Coles, in which the AMIEU sought to negotiate an agreement which would apply to the Victorian and Tasmanian meat workers. In the course of the bargaining the AMIEU put two propositions as to the scope of such an agreement and addressed the terms and conditions it sought on behalf of it members. Contrary to the Coles submission, we think that the Coles position seeks to artificially distinguish between a national meat agreement and replacement State based agreements to determine the terms and conditions of the Victorian and Tasmanian meat workers, rather than to assess the circumstances of the bargaining as a whole, in which the AMIEU directed itself to an agreement to apply to the Victorian and Tasmanian meat workers.
[42] Rather than conflate the two forms of separate meat employee agreements pressed by the AMIEU during the negotiations, the Commissioner distinguished the scope of the agreements proposed by the AMIEU in negotiations, seeing the AMIEU approach as part of the “normal cut and thrust” of agreement negotiation. The central issue in the negotiations between Coles and the AMIEU went to the scope of any agreement applying to meat workers with each of the AMIEU’s positions being founded on achieving agreement coverage of meat workers, separate from other retail employees, with a view to protecting the terms and conditions of meat workers and an ongoing capacity of its members at Coles to bargain agreements in their own right.
[43] In reaching his satisfaction that the AMIEU had tried and was trying to reach agreement Commissioner Gregory appreciated and identified as the relevant agreement in relation to which the PABOs were sought as those involving State based agreements. 22 In the context of a global and discretionary judgement based on the full circumstances of the negotiations disclosed by the evidence before him, Commissioner Gregory was entitled to find that the Victorian and Tasmanian Branches of the AMIEU had been and were “genuinely trying to reach an agreement” to apply to its members in those States.
The determination of whether an applicant for a PABO must be genuinely trying to reach agreement not only at the time of the Commission’s decision but also as at the date of the application for the PABO
[44] Coles submitted that in reaching satisfaction as to s.443(1)(b) of the Act, it is necessary for the PABO applicant to have been genuinely trying to reach an agreement at the time of the application (“has been”) and at the time of the hearing (“is”) and the Commissioner erred in finding that the AMIEU had been trying to reach agreement in respect of the State based agreements at the time the s.437 applications were made.
[45] The requirements in s.443(1)(b) of the Act that “the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement” involves two distinct temporal considerations. The use of the present tense “is genuinely trying to reach an agreement” requires satisfaction that, at the time of the determination, the applicant is trying to reach an agreement. The use of the past tense “has been genuinely trying to reach an agreement” requires satisfaction that the applicant had been trying to reach an agreement prior to the time of determination – applying the approach set out in Swire and JJ Richards in the course of the negotiations.
[46] Whilst the Commissioner’s conclusion at paragraph 46, was expressed in terms of genuinely trying to reach agreement, it is clear from the evidence, and his consideration of that evidence that the Commissioner addressed himself to the bargaining between the AMIEU and Coles from the commencement of negotiations in April 2014 through to the time of hearing in December 2014 and that he was satisfied that the AMIEU had been genuinely trying to reach agreement over the course of the negotiations and was trying to reach agreement at the time of the hearing. We are satisfied that his satisfaction encompassed both temporal dimensions within s.443(1)(b) of the Act.
[47] In the appeal, Coles argued that for the AMIEU to satisfy the test in s.443(1)(b) of the Act, it is necessary to be genuinely trying to reach agreement as at the time of the application for a PABO and at the time of hearing. This contention seeks to import into s.443(1)(b) a requirement that the AMIEU had been genuinely trying to reach an agreement element of the two temporal requirements in s.443(1)(b) which was referable to the time of the making of an application for a PABO. Coles submitted it was necessary to do so in order to give the two temporal elements – “has been” and “is” purpose and effect. In advancing this proposition, Coles relied on decisions in National Union of Workers v SKF Australia Pty Ltd 23 (SKF) and National Union of Workers v Phillip Leong Stores Pty Ltd24(Phillip Leong Stores).
[48] We are not persuaded that the words of s.443(1)(b) of the Act restrict the “has been” component of s.443(1)(b) to the time of making an application.
[49] The temporal elements in s.443(1)(b) require that an applicant is trying to reach agreement at the time of determination (reflecting the evidence at the time of hearing) and that the applicant had been trying to reach an agreement before that time, determined by the application of the approach set out in Swire and JJ Richards. That gives purpose to the two temporal requirements within s.443(1)(b) of the Act.
[50] There is nothing in the words of s.443 of the Act which impose the restriction suggested by Coles. There is no warrant to read the qualification in relation to “has been” as suggested by Coles into s.443(1)(b). The absence of qualification of the type suggested by Coles is significant, not only by reference to the plain words of s.443(1)(b) of the Act, but in the context of other sections of Part 2–4 of the Act – Enterprise agreements – which impose prerequisites for making an application for other bargaining orders – ss.229(4) (bargaining orders) and 238(3) (scope orders).
[51] We also note that whilst in most circumstances, given s.441(1) of the Act, there would be little practical difference between the date of the making of an application and the making of a decision by the Commission, in circumstances such as those which arise in the current matter, where several weeks passed between the making of the applications and the final hearing of the matters, the imposition of an artificial restriction of the time at which an applicant has been genuinely trying to reach an agreement, would undermine the substance of the requirement within s.443(1)(b). The reading into s.443(1)(b) of the Act of a temporal qualification to “had been genuinely trying to reach agreement” which is not reflected in the words of s.443(1)(b) would limit the right of a bargaining representative to a PABO if it had been, and is, genuinely trying to reach agreement and, if supported by a majority of employees and subject to meeting the notice and other requirements of the Act, to take protected industrial action. Such an interpretation would have the effect of requiring the Commission to ignore evidence in relation to bargaining between the time of the making of an application and the hearing of a matter relevant to satisfaction that an applicant has been, and is, genuinely trying to reach agreement on the basis set out in Swire and JJ Richards in circumstances where there was a significant period of time between the making of an application and the hearing of it during which bargaining continued.
[52] Finally, we are not persuaded that the decisions in SKF and Phillip Leong Stores support the proposition advanced by Coles. Whilst, in each case, reference was made to “has been” at the time an application for an order was made, in SKF Commissioner Lewin was addressing himself to the fact of two temporal elements of s.443(1)(b) and his reasons provide no indication of why the “has been” element is referable to the date of application. The observation of Commissioner Bull in Phillip Leong Stores is said to be a principle gleaned from the Act, the relevant case law and the Explanatory Memorandum. We are unable to discern such a principle within the Act, the relevant case law and the Explanatory Memorandum.
[53] In any case, Commissioner Gregory was entitled to be satisfied as to the s.443(1)(b) matters on the basis of the history of the negotiations between Coles and the AMIEU prior to the making of the PABO applications. The later documentation by the AMIEU of specific Victorian and Tasmanian logs of claims and the discussion of those logs and the rejection of State based meat agreements rejected by Coles in the negotiations which continued after the making of the PABO applications is consistent with and reinforces the finding that the AMIEU had been and was genuinely trying to reach State based meat agreements in respect of its Victorian and Tasmanian members.
Whether in fact the AMIEU was genuinely trying to reach an agreement with Coles in relation to the proposed enterprise agreements the subject of the applications for the two PABOs
[54] Coles submitted that the Commissioner erred in being satisfied that the AMIEU had been trying to reach agreement, as at the date of the PABO applications (11 and 17 November 2014 respectively) in respect of the Victorian and Tasmanian State based agreements because:
• until 5 November 2014, the AMIEU had been negotiating a national meat agreement;
• the AMIEU was actively pursuing a scope order for an agreement of the scope of a national meat agreement;
• the AMIEU made it clear on 5 November 2014 that the reason for it reverting to the pursuit of State based agreements was to enable its Victorian and Tasmanian members to take protected industrial action;
• the AMIEU had not served a log of claims in respect of State based meat agreements until 19 November 2014; and
• no response was elicited by the AMIEU from Coles in respect of State based meat agreements.
[55] The specific matters raised by Coles in relation to this appeal ground do not detract from a positive finding in favour of the AMIEU under s.443(1)(b) of the Act. Whilst the AMIEU had not proposed a national meat agreement until 5 November 2014, it did so as a compromise position in the bargaining, against its continuing preference for State based meat agreements and both positions were advanced with a view of securing an agreement separate from the retail agreement in order to protect the conditions and future bargaining capacity of the meat workers. Whilst the AMIEU made an application for a scope order on 1 September 2014, which was not discontinued until 20 November 2014, it made it clear in bargaining that it no longer persisted with its compromise position and had reverted to its preferred position of State based agreements on 5 November 2014. In AMIEU correspondence of 6 and 8 August 2014, to other bargaining representatives, in compliance with s.238(3) of the Act, the AMIEU made it clear that it sought a bargaining outcome which through either separate State based agreements or, if Coles preferred, a single enterprise agreement covering all meat departments nationally. The reversion by the AMIEU on 5 November 2014 to seeking State based meat agreements was said to have the consequence of allowing an application for PABOs, rather than being for the purpose of enabling its Victorian and Tasmanian members to take protected industrial action. 25
[56] The fact that the AMIEU had not served a specific log of claims in respect of State based meat agreements until 19 November 2014 and it was not responded to by Coles until 1 December 2014 is of no moment, absent the interpretation of s.443(1)(b) of the Act advanced by Coles and rejected by us in relation to the second appeal ground, above. In any case, the evidence as to the bargaining prior to the making of the PABO applications in which the scope issue was central in the Coles and AMIEU bargaining, the AMIEU’s preferred position was clear from the outset, notwithstanding its preparedness to negotiate on a compromise position, and the AMIEU’s positions being founded on achieving agreement coverage of meat workers, separate from other retail employees, with a view to protecting the terms and conditions of meat workers and an ongoing capacity of its members at Coles to bargain agreements in their own right.
[57] We are not persuaded that Commissioner Gregory erred in being satisfied that the AMIEU had been trying to reach agreement. As noted above, Commissioner Gregory appreciated and identified as the relevant agreements in relation to which the PABOs were sought were those involving State based agreements 26 and based on the full circumstances of the negotiations disclosed by the evidence before him, Commissioner Gregory was entitled to find that the Victorian and Tasmanian Branches of the AMIEU had been and were “genuinely trying to reach an agreement” to apply to its members in those States.
Conclusion
[58] We are not satisfied that permission to appeal should be granted. We are satisfied that Commissioner Gregory understood and applied the correct approach to s.443(1)(b) of the Act, correctly understood the factual circumstances of the bargaining in which he was required to satisfy himself and made no error in applying the requirements of s.443(1)(b) in those factual circumstances. We are not persuaded that the decision of Commissioner Gregory reflects error. We are not persuaded that there is any other basis upon which permission to appeal should be granted.
[59] Permission to appeal is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
M Felman of Counsel for the Applicant.
C Buckley for the Respondent.
Hearing details:
2015.
Melbourne and Brisbane (video hearing):
January 12.
1 [2014]FWC 8868.
2 In matter numbers B2014/1576 and B2014/1607.
3 PR559303, clause 3. The order was varied to extend the period for the ballot in PR559518.
4 PR559304, clause 3.
5 Transcript, at para 19.
6 Transcript, at para 21.
7 Transcript, at para 23.
8 JJ Richards & Sons Pty Ltd and Another v Fair Work Australia and Another (2012) 201 FCR 297, at para 58 and J.J. Richards & Sons Pty Ltd and Another v Transport Workers Union of Australia [2011] FWAFB 3377, at paras 40–41.
9 AE888094.
10 AE890738.
11 AE888707.
12 AE894927.
13 AE403502.
14 AE894202.
15 In matter number B2014/1221.
16 In matter number B2014/1053.
17 [2014] FWC 8868, at paras 8–32.
18 [2014] FWC 8868, at paras 33–35.
19 [2014] FWCFB 2587.
20 [2009] FWAFB 368.
21 (2012) 201 FCR 297.
22 [2014] FWC 8868, at paras 42–46.
23 [2010] FWA 6557, at para 23.
24 [2014] FWC 6459, at para 97.
25 Witness Statement of L Murphy, Appeal Book at page 171.
26 [2014] FWC 8868, at paras 42–46.
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