Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Cooke & Dowsett Pty Ltd
[2023] FWC 2385
•19 SEPTEMBER 2023
| [2023] FWC 2385 |
| 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
v
Cooke & Dowsett Pty Ltd
(B2023/986)
| COMMISSIONER LIM | PERTH, 19 SEPTEMBER 2023 |
Proposed protected action ballot of employees of Cooke & Dowsett Pty Ltd
This is an application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Cooke & Dowsett Pty Ltd (the Employer).
The application was lodged on 15 September 2023. That same day, the Commission was advised that the Employer, in effect, objected to the Application. The substantive basis of the objection was a contention that the CEPU were not genuinely trying to reach agreement.
The matter was allocated to my Chambers and I conducted a hearing to deal with the Employer’s objection on 18 September 2023. At the end of the hearing, I reserved my decision.
Having considered the evidence from the parties, I am satisfied that the CEPU have been, and are, genuinely trying to reach agreement. An order to this effect will be issued.
My reasons for my decision are as follows.
Legislative framework
Section 443 of the Act relevantly provides 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)
.... ....”
The words ‘genuinely trying’ are to be given their ordinary and natural meaning.[1]
It has been the Commission’s approach when determining whether an applicant is genuinely trying to reach agreement to assess all of the circumstances of the particular case.[2]
The Full Bench of the Fair Work Commission in Total Marine noted that an assessment of the relevant circumstances will frequently involve considering the extent of the progress in negotiations and the steps taken in order to try and reach an agreement.
Further, the expression ‘genuinely trying’ has also been taken to be concerned with the genuineness or authenticity of the applicant’s efforts to reach the stated goal: an enterprise agreement that meets the requirements of the Act.[3]
Evidence
The CEPU must demonstrate that it has met (and where relevant, continues to meet) these requirements.
In support of its contention that it has met s 443(1)(b), the CEPU relied upon the statement and oral evidence of Troy Smart, CEPU Branch Organiser.
Mr Smart’s evidence was that:
The current enterprise agreement is the Cooke & Dowsett and CEPU (WA) UNION Collective Agreement 2020-2023 (Current Agreement).
The nominal expiry date of the Current Agreement is 31 July 2023.
The Employer issued a notice of employee representational rights for a replacement agreement on 24 February 2023.
The first meeting was held on or around 9 March 2023. At this meeting the CEPU served its log of claims on the Respondent.
Since then, the parties have had five bargaining meetings.
Throughout the negotiations, CEPU WA Divisional Secretary Brian Bintley has been in regular phone contact with Mr Jeff Hegarty, the WA State Manager for the Employer.
During these phone calls, Mr Bintley has consistently relayed the CEPU’s position on outstanding bargaining claims.
The current outstanding bargaining claims are wages, redundancy and wording in particular clauses.
At the meeting on 8 September 2023, the CEPU informed Mr Hegarty and Mr Scott Dowsett (Director for the Employer) that the union’s position on the outstanding claims remained the same.
On 15 September 2023, before the CEPU lodged this application, Mr Smart called Mr Hegarty to inform him of the application and reaffirm the outstanding bargaining claims.
The CEPU has explained its claims and have seriously considered and responded to proposals the Employer have put. The CEPU also remains willing to meet further with the Employer to continue the negotiation of the outstanding claims.
The Employer did not seek to cross-examine Mr Smart.
The Employer called Mr Hegarty to give evidence. Mr Hegarty’s evidence was that:
The Employer did issue a notice of employee representational rights on 24 February 2023.
The Employer has received the CEPU’s log of claims, albeit on a different day asserted by Mr Smart.
There have been five meetings on or around the days identified by Mr Smart. Representatives of the Employer and CEPU have attended all meetings.
On 20 July 2023, Mr Hegarty send a draft agreement to CEPU representatives.
On 8 August 2023 and 9 August 2023, Mr Hegarty sent further correspondence to the CEPU asking the CEPU to:
oconfirm agreement or any further queries regarding the contents of the proposed replacement agreement;
oto formalise the employee’s position; or
oto advise if there was a need for further negotiations.
Mr Hegarty contended that he did not receive a formal response in writing from the CEPU to the emails on 20 July, 8 August or 9 August. However, there have been discussions on the phone with the CEPU and discussion between Mr Hegarty and the union delegates.
On 7 September 2023, a meeting was convened with all staff and the CEPU. At this meeting, Mr Hegarty provided a presentation on the proposed replacement agreement.
The parties have been bargaining for approximately six months and a majority of the log of claims have been resolved.
Mr Hegarty confirmed that Mr Smart had called him on 15 September 2023 to inform him of the application and that Mr Smart had affirmed the CEPU’s bargaining position.
Under cross-examination, Mr Hegarty conceded that on 7 September 2023 before the presentation, there was a discussion about the agreement where the union affirmed their stance on the outstanding bargaining claims.
Mr Hegarty also conceded during oral evidence that he and Mr Bintley speak regularly, and that they have spoken about the replacement agreement multiple times on the phone where Mr Bintley has discussed what the CEPU would not support in the replacement agreement.
Mr Hegarty also acknowledged that though the CEPU had not sent a formal reply to his emails, Mr Bintley had called him to communicate the CEPU’s position.
In summary, there is no significant dispute about the timeline and facts of the bargaining.
The Employer’s position essentially, is that the CEPU has not provided written replies and that Mr Bintley and Mr Smart in stating the CEPU’s position verbally in relation to bargaining claims is not ‘negotiating’.
Though the Employer may have a preference on how the CEPU should communicate its position, that is not the relevant test.
In this case, the evidence before the Commission supports the conclusion that the CEPU has been and is genuinely trying to reach an agreement with the Employer. The evidence from both parties is that the negotiations are at an advanced stage, with a number of meetings over six months. The majority of the claims have been settled. The CEPU has attended all meetings and has made it clear to the Employer what remains in dispute and what the CEPU’s position is on those claims, even right up to the date of lodging this application.
Accordingly, I find that the CEPU has met the requirements of s 443(1)(b) of the Act.
On the basis of the material before me, I am also satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s 443 of the Act have been met, including those not in contest and not expressly dealt with in this decision.
On that basis, and given that s 443(2) does not apply, I am obliged to issue the Order.
The ballot is to be conducted by the AEC, which is recognised under s 468A of the Act as an eligible protected action ballot agent.
For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 1 November 2023. This also establishes the ballot period for the purpose of s 448A(2) of the Act.
An Order has been separately issued in PR766287.
Pursuant to s 448A of the Act, a compulsory conciliation conference will be convened by my Chambers. An Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement will issue shortly.
COMMISSIONER
Appearances:
Ms Reid for the Applicant
Mr Eberhard for the Respondent
Hearing details:
Monday, 18 September 2023 at 8:00AM via videoconference
[1] Ford Motor Company of Australia v CEPU [2009] FWAFB 1240 at [125] (Kaufman SDP, Ives DP and Lewis C) (Ford Motor).
[2] JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 (Jessup, Tracey and Flick JJ) (JJ Richards); Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 at [31] (Watson VP, Hamberger SDP and Roberts C) (Total Marine); CEPU v Kraft Foods Ltd[2010] FWA 4404 at [29] (Hampton C); Esso Australia Pty Ltd v AMWU, CEPU and AWU[2015] FWCFB 210 (Esso).
[3] J.J. Richards at [89]
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