Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division Tasmanian Divisional Branch v Klimate Solutions Pty Ltd
[2020] FWC 6168
•18 NOVEMBER 2020
| [2020] FWC 6168 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division - Tasmanian Divisional Branch
v
Klimate Solutions Pty Ltd
(B2020/703)
DEPUTY PRESIDENT MASSON | MELBOURNE, 18 NOVEMBER 2020 |
Proposed protected action ballot of employees of Klimate Solutions Pty Ltd.
[1] This is an application by the Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical, Energy and Services Division – Tasmanian Divisional Branch (CEPU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Klimate Solutions Pty Ltd (‘Klimate Solutions’) who are to be covered by the proposed agreement and are represented by the CEPU.
[2] On 9 November 2020, the Commission wrote to Klimate Solutions requesting it to advise the Commission by 4:00pm on Tuesday, 10 November 2020 as to whether there was any objection to the application. Klimate Solutions responded to the Commission on 10 November 2020 advising that it objected to the application on the basis that certain industrial action put forward by the CEPU could not be defined as protected industrial action, and that any protected industrial action would have an adverse impact on the business.
[3] The matter was then listed for hearing before me on 17 November 2020 to hear and determine Klimate Solutions objection to the application filed by the CEPU. Mr Chris Clark, State Organiser for the CEPU (Tasmania) appeared on behalf of the CEPU. Klimate Solutions were represented by Mr J Hay, Operations Manager and Ms K Miguel, Business Manager for Klimate Solutions.
[4] The CEPU set out the in the Form F34 Statutory Declaration prepared by Mr Clark, the bargaining timeline and steps taken by the CEPU in seeking to reach an agreement with Klimate Solutions. The relevant timeline and events were not challenged by Klimate Solutions and may be summarised as follows;
• On 23 August 2019 the CEPU sent a letter to Klimate Solutions seeking to commence bargaining.
• The letter referred to above was not responded to and the CEPU filed a Form F30 Majority Support Determination (MSD) application in the Commission on 22 November 2019.
• The MSD application was withdrawn by the CEPU on 11 February 2020 following Klimate Solutions agreeing to meet with them on 7 February 2020.
• On 18 February 2020 a preliminary bargaining meeting was held at Klimate Solutions office at which a log of claims dated 7 February 2020 was presented by the CEPU to Klimate Solutions. The Company agreed to respond in writing to the log of claims.
• On 10 March 2020 a follow up email was sent by the CEPU seeking a response to their log of claims from Klimate Solutions as no response had been received.
• On 11 March 2020 Mr Hay responded advising that he was “still working through the proposal and looking at what is of interest to our employees and the future of Klimate Solutions”. He stated he would aim to respond the following week.
• On 9 April 2020 Mr Hay emailed the CEPU advising that Klimate Solutions had put bargaining on hold due to the Covid pandemic. The CEPU regarded this as reasonable in the circumstances and did not object to a pause in negotiations.
• On 9 July 2020 the CEPU emailed Mr Hay seeking to restart bargaining. Mr Clark offered some dates of his availability. Mr Hay responded that same day advising that his focus remained on “keeping everyone employed” and requested a few weeks to see when he could “revisit” bargaining.
• On 29 July 2020 the CEPU again asked Mr Hay whether Klimate Solutions were ready for bargaining to resume. No response was received to that request
• On 9 September 2020 the CEPU sent Klimate Solutions a “notice of concern” regarding their failure to bargain in “good faith” as required by s 228 of the Act.
• On 11 September 2020 a formal response was sent by Klimate Solutions to the CEPU in relation to the CEPU’s claims in relation to wages, income protection and travel allowance. The response indicated that Klimate Solutions was unwilling to meet the CEPU claims.
• On 23 September 2020 the CEPU sent a revised proposal to Klimate Solutions in which a number of the claims contained in their 7 February 2020 log of claims were either ‘dropped’ or modified.
• On 5 October 2020 Klimate Solutions responded to the CEPU’s 23 September 2020 correspondence advising they remained unwilling to meet the outstanding claims.
• The CEPU subsequently held discussions with their members and endorsement was obtained to file a PABO application in the Commission, which was subsequently filed on 9 November 2020.
[5] Klimate Solutions outlined the basis of its objections to the PABO in correspondence to the Commission on 10 November 2020. The objections and position of Klimate Solutions may be shortly summarised as follows;
• One form of industrial action proposed by the CEPU at Question 29 involving employees wearing and displaying Union related clothing would not impact on the performance of work. Therefore, such action could not be considered lawful industrial action as it does not constitute a change of actual work practice.
• Klimate Solutions competes in a market with some 60-80 other business that do not have enterprise agreements in place. Consequently, Klimate Solutions would be put at a commercial disadvantage if compelled to agree to improved conditions of employment.
• The industrial action proposed by the CEPU would if taken, significantly impact on Klimate Solutions’ ability to meet its contractual requirements with its customers.
• Klimate Solutions acknowledges there have been unintended delays in bargaining, due in part to closure of its construction business, consolidation of the remaining business and the Covid pandemic.
• Klimate Solutions is in receipt of Job Keeper payments for its employees which indicates it has suffered a loss of business of at least 30%. Some employees are on reduced hours and the company is continuing to work hard to retain its staff during the pandemic caused recession and is not in a position to pass on additional costs to clients that might flow from the CEPU claims.
[6] Klimate Solutions also filed various correspondence from several of its staff which indicated support for the Company and which Klimate Solutions says was evidence that the CEPU, in advancing their claims, were not speaking on behalf of employees.
[7] When pressed during the hearing, Klimate Solutions summarised its objection to the PABO as being that the CEPU were not genuinely seeking to reach an agreement because the scale of the CEPU claims were unreasonable, unaffordable, were 65% above award rates and the claims, if conceded, would place the business in jeopardy. The CEPU rejected the argument that it was pursuing an unreasonable bargaining position and pointed to the narrowing of their claims reflected in their 23 September 2020 email to Klimate Solutions.
Statutory requirements for making a ballot order
[8] In relation to when the Commission must make a protected action ballot order the Act relevantly states as follows;
“443 When the FWC must make a protected action ballot order
(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.
(2) The 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).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
Consideration
[9] There is no contest that the CEPU is eligible to bring the application. The evidence and other material before the Commission is also enough to demonstrate to the satisfaction of the Commission that save for the challenge to the requirements of s 443(1)(b) having been satisfied all the other requirements of s.443 of the Act have been met. It is only the s 443(1)(b) requirement that is contested. That is, Klimate Solutions contend that the CEPU are not genuinely seeking to reach an agreement.
[10] It is apparent that the employer holds concerns regarding the potential outcome of bargaining or the impact of protected industrial action on its business. Those concerns may be well founded. Such concerns however are irrelevant to consideration of the present application before me. What I am required to consider is whether the CEPU is “genuinely trying to reach an agreement”. As the authorities make clear, those words are to be given their ordinary meaning 1 and there are no rigid rules outlining what steps must have been taken before an application may be granted. Rather, an assessment by the Commission of the circumstances of each case must be made.2
[11] I am satisfied on the material filed that the CEPU sought to initiate bargaining with Klimate Solutions in the latter half of 2019 and was ultimately forced to pursue an MSD in the Commission in order to obtain Klimate Solutions agreement to bargain, which was secured in February 2020. Subsequent efforts of the CEPU to engage in bargaining with the employer were adversely impacted by various events including Klimate Solutions consolidation of its business and the Covid pandemic. These circumstances help to explain in part the absence of regular meetings of the parties. Another major contributor is in my view the reluctance of the employer to engage in bargaining in circumstances where they were of the unshakeable view that any improvement in the terms of conditions of employment of their staff was unaffordable in the current environment. That concern was central to their objection to the PABO application.
[12] The CEPU presented its initial log of claims to Klimate Solutions in a meeting on 18 February 2020. I am satisfied that its attempts to meet and engage with Klimate Solutions following that initial meeting have been frustrated by events both beyond the employers control (e.g. Covid pandemic restrictions) and within the employers control, that being its resistance to any improvements to wages and conditions in the current economic climate. The belated rejection by Klimate Solutions of the CEPU’s key wages and conditions claims in its letter to the CEPU on 11 September 2020 was met with a moderation and narrowing of claims by the CEPU in its reply to Klimate Solutions on 23 September 2020. Those revised claims were also rejected by the company on 10 October 2020.
[13] That Klimate Solutions may regard the claims advanced by the CEPU as unreasonable in the current environment does not persuade me that the CEPU is not genuinely trying to reach an agreement. The CEPU efforts to reach an agreement are evident on the face of various correspondence with the company, their efforts to meet with the employer, as well as the log of claims initially provided in February 2020 and the revised claims in September 2020. I am satisfied on the material before me that the CEPU have been and were at the time of hearing of the matter genuinely trying to reach an agreement.
[14] As regards Klimate Solutions submission regarding question 29 in the proposed PABO, that submission has no merit in my view. An election by employees to wear and display union clothing is undoubtedly a departure from the normal manner in which work is performed even if there was no adverse impact on productivity.
Conclusion
[15] Having heard from the parties and on the basis of the material before me, including the statutory declaration of Mr Chris Clark of the CEPU setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.
[16] An order has been separately issued in PR724638.
DEPUTY PRESIDENT
Appearances:
C. Clark for the CEPU
J. Hay for the Employer
Hearing details:
2020
Melbourne
17 November
Printed by authority of the Commonwealth Government Printer
<PR724632>
1 Ford Motor Company of Australia Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2009] FWAFB 1240 at [125]
2 Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 at [31]
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