Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Equans Fire Protection Services Pty Limited
[2024] FWC 1241
•10 MAY 2024
| [2024] FWC 1241 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Equans Fire Protection Services Pty Limited
(B2024/527)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 10 MAY 2024 |
Proposed protected action ballot of employees of Equans Fire Protection Services Pty Limited
This decision concerns an application made on 9 May 2024 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to employees of Equans Fire Protection Services Pty Limited (company). The company advised the Commission that it objected to the application on the grounds that the CEPU was not genuinely trying to reach agreement. Section 441 of the Act provides that, as far as practicable, an application of this kind must be determined within two working days after it is made. I heard the application earlier today.
The CEPU’s application and F34B declaration made by Paul Coffee, its industrial officer, indicated that the employees to be balloted are those who will be covered by a proposed enterprise agreement and who are represented by the CEPU. The employees in question are fire sprinkler fitters who are currently covered by the Engie Fire Protection Pty Ltd and CEPU – Plumbing Division (Vic) Fire Protection Agreement Victoria 2020-2023 (2020 Agreement). The nominal expiry date of the 2020 Agreement was 31 October 2023. The proposed ballot agent is the Australian Electoral Commission (AEC). A draft order was attached to the application. The proposed ballot would ask employees whether they support different forms of industrial action for the purposes of supporting claims made in respect of the proposed agreement. The proposed date by which voting in the protected action ballot would close is 30 working days from the date the order is made by the Commission.
The CEPU’s declaration states that the ‘notification time’ for the proposed agreement was 7 March 2024, and that on that date an officer of the CEPU provided the company with a log of claims to commence negotiations for a new agreement. The company’s human resources officer had then replied, confirming that a notice of employee representational rights (NERR) had been issued to employees that day. The declaration stated that since 7 March 2024, the parties had engaged in correspondence to negotiate a new enterprise agreement, and that certain meetings occurred. Mr Coffee said that the union had explained its claims and had considered and responded to proposals put by the company, but that several bargaining issues had not been resolved, including wages.
At the hearing, the company spoke to a written submission that it had lodged in the Commission in which it outlined the basis for its objection that the CEPU had not been genuinely trying to reach agreement. It said that on 7 March 2024, what the company had received from the CEPU was not a log of claims, but an entire proposed agreement that the union expected the company to accept. The union had also provided the company with instructions on how to distribute the document to employees and have them vote on the agreement to approve it.
The company further submitted that there had been no face to face bargaining meetings between the company and the union, and that the only actual meetings had been between the union and employees. Following the last such meeting on 24 April 2024, the company had been waiting to hear from the union to discuss the agreement. Its intention had been for this to occur at an in person meeting. However, it heard nothing from the union and instead received a copy of its application for a protected action ballot order.
The company said that it was aware that the CEPU is a bargaining representative for proposed enterprise agreements with other employers in the fire protection industry in Victoria and that the proposed agreements contain the same terms and conditions as those in the agreement that the union sent to the company on 7 March 2024, and that it considered such conduct to be pattern bargaining that contravened s 412(1) of the Act. The company contended that the CEPU had been unwilling to negotiate on any of the terms contained in the proposed agreement or consider the individual circumstances of the company. It referred to an email sent by Mr Coffee to the company’s human resources manager, Nikki Holden, on 10 April 2024, in which he stated that he had met with the employees that morning and that ‘the boys just want the Industry Standard Agreement – the one you have accepted for the last 4 Agreements.’
The company submitted that in all the circumstances the Commission could not be satisfied that the CEPU had been and was genuinely trying to reach agreement with the company and that the precondition for the issuance of a protected action ballot order in s 443(1)(b) had not been met.
The CEPU submitted that there had been some direct meetings between the union and the company. Mr Coffee’s evidence was that on 17 or 18 March 2024 he spoke with Ms Holden on the telephone about some of the clauses that the company wanted to remove from the draft agreement. He also said that on 20 March 2024, after speaking to employees at a toolbox meeting, he then went upstairs and spoke with the company’s state manager, Suzy Peck, and discussed rates of pay and other conditions. For her part, Ms Holden did not recall the telephone discussion referred to by Mr Coffee. And Ms Peck said that her conversation with Mr Coffee was more of an introductory meeting and that it was not a formal bargaining meeting.
The CEPU contended that it had originally believed that the company was a member of the National Fire Industry Association, the employer body with which it had negotiated the template agreement, but when it learned that this was not the case, it negotiated specifically with the company. It said that genuine negotiations had taken place orally, albeit to a limited extent, and also by correspondence between the parties. Mr Coffee gave evidence that he was not against removing some of the clauses that the company had wanted to delete from the proposed agreement, and neither were the employees, and that when he had said in his email to Ms Holden that the boys just wanted the industry agreement, he was talking in general terms and did not have in mind the clauses that the company sought to remove. Mr Coffee also said that he had told either Ms Holden or Ms Peck that he was not against removing these provisions.
The correspondence that has passed between the CEPU and the company in relation to the negotiation of a new agreement was attached to the company’s written submissions. On 7 March 2024, the CEPU sent the company a proposed agreement, a NERR, an explanation of the agreement identifying ‘key changes’, and a draft letter to employees commencing the access period for the agreement. It set out proposed steps for the company to follow in order to have the agreement approved by employees. This was not a log of claims in the traditional industrial sense, which is typically a list of conditions or outcomes that a party seeks to achieve in bargaining. Nevertheless, as Mr Coffee said, the proposed agreement set out the CEPU’s claims. There is nothing wrong with a bargaining representative commencing bargaining by providing another with a draft agreement. Nor is there anything wrong with that party explaining the steps that would be required to have employees approve the agreement.
It is common for a union to develop a template or baseline document to use as a model for bargaining, either with or without the involvement of an association that represents employers. Some employers accept such models, others do not. It is also common for unions to assist employers, particularly smaller ones, with the process of having employees vote on the agreement and its submission to the Commission for approval under s 185 of the Act. No doubt the explanatory letter provided by the CEPU to the company highlighted the difference between the new template industry agreement and the previous one. But there is nothing wrong with any of this.
After receiving the CEPU’s proposed agreement Ms Holden replied, stating that the company would be seeking to negotiate with the union on some of the clauses in the draft agreement, and requesting the details of the relevant contact person from the CEPU, which the union then provided. On 15 March 2024, Ms Holden sent to Kristen Reid of the CEPU an email stating that the company wanted to make a number of changes to the union’s proposed agreement, including by providing lesser increases to wages and daily travel rates, removing clauses relating to drug and alcohol policy and sham contracting, increasing the notice of termination to be provided by employees, and amending the site agreements clause.
On 20 March 2024, Ms Holden sent Mr Coffee an email in which she thanked him for visiting its site that day to meet with employees regarding the negotiation of the new agreement. Ms Holden stated that her understanding was that employees were agreeable to the company’s proposed amendments to the union document provided an agreement could be reached on wages and that the company now proposed an improved wages offer in the first of the four years of the agreement’s nominal life; previously it had offered 2.5% and now it offered 3%. She stated that the 8% first year increase contained in the union’s document was not sustainable for the company. She asked Mr Coffee to discuss the company’s revised offer with employees and get back to her.
On 8 April 2024, Mr Coffee sent an email to Ms Holden stating that he had spoken to employees and received a clear direction that they wanted the CEPU’s proposed agreement in its entirety, and that they wanted what everyone else was getting. This appears to have been a reaction, at least in part, to the company’s revised wages offer which was not acceptable to employees. Ms Holden replied, stating that the company could not agree to an 8% wage increase in the first year. She asked the union to advise which companies had agreed to an 8% increase. On 10 April 2024, Mr Coffee sent Ms Holden the message referred to in the company’s submission, stating that the workers wanted the industry standard agreement.
On 17 April 2024, Ms Holden replied to Mr Coffee and stated that the company’s position remained unchanged from its earlier correspondence. Later that morning, Mr Coffee sent Ms Holden a message identifying other companies that had agreed to the ‘industry standard.’ Mr Coffee also asked to have another meeting with employees on 24 April 2024. There is no indication from the correspondence that the CEPU was to revert back to the company after this meeting or that there would be an in person meeting between the CEPU and the company.
Consideration
In my opinion, the CEPU has been, and is, genuinely trying to reach an agreement with the company. There have been negotiations between the parties about terms and conditions for a new agreement. Several conditions are not yet agreed including the question of wages. The reference point for negotiations is the union’s template agreement. The employer has proposed changes to this document. The CEPU and employees are not opposed to some of them. I accept Mr Coffee’s evidence about this. The parties remain opposed on a number of matters, including the question of wage increases. All of this is consistent with the parties genuinely trying to reach an agreement with one another.
The company contended that the CEPU was not genuinely trying to reach agreement because it refused to consider the circumstances of the company and would not negotiate on any of the terms of its proposed agreement, but the material before the Commission does not bear this out. Mr Coffee advised the company that he was not against changing the document and he discussed the company’s proposed changes and wage offer with the employees. The feedback he received was that they wanted the conditions in the union document, including the much higher first year wage increase. The parties have not yet reached agreement because they differ on several conditions to be included in the new agreement, including wages. But the union and employees remain open to removing some of the clauses that the company does not want. This is ordinary bargaining. The fact that negotiations have proceeded by reference to a union document that is presented as an industry standard does not mean that the union is not genuinely trying to reach an agreement.
The company contended that the CEPU was engaged in pattern bargaining, that this was a contravention of s 412 of the Act, and that the Commission could therefore not be satisfied that the union was genuinely seeking to reach agreement with it. I reject this contention. First, it should be noted that s 412 does not prohibit pattern bargaining; rather, it defines pattern bargaining for the purpose of s 409(4), which states that, in order for industrial action to constitute ‘employee claim action’ and attract the immunity in s 415, a bargaining representative must not be engaged in pattern bargaining in relation to the agreement. Pattern bargaining is defined in s 412(1) as a course of conduct where a person is a bargaining representative for two or more agreements, the conduct involves seeking common terms to be included in those agreements, and the conduct relates to two or more employers.
Secondly, s 412(2) sets out a broad exception. It states that a course of conduct in relation to a particular employer is not pattern bargaining if the relevant bargaining representative is genuinely trying to reach agreement with that employer. Section 412(3) then states that for the purposes of s 412(2), three ‘factors’ are relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, which are 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.’
In the present case, I consider that the CEPU is bargaining in a manner consistent with (a) above. It has shown willingness to take into account the circumstances of the employer and its wish to remove particular clauses from the proposed agreement. It has behaved consistently with (b), because it has sought the direction of the employees in determining how to respond to the employer’s claims. I also consider that the CEPU has been meeting the good faith bargaining requirements.
The company submitted that the union’s application was premature because bargaining only commenced eight weeks ago and there had been no formal meetings between the parties. I reject this contention. The Act contemplates that negotiations must have commenced and been in train for at least some period of time: this is clear from the fact that it uses both the present and the past tense (‘has been, and is, genuinely trying to reach an agreement’), but it does not set any minimum time period. In this case, there have been negotiations by email, and to a lesser extent orally. These have involved exchanges of proposals and some movement in those proposals. This is more than sufficient. It is plain that both the CEPU and the company want an agreement, and that they have been, and are, trying to reach one.
The company said that the union should withdraw its application and return to the bargaining table. But the application for a protected action ballot order does not signify a departure from the bargaining table. Negotiations will continue. The union has simply taken the first step that will allow its members to take protected industrial action in support of their bargaining claims if they consider it necessary to do so.
On the basis of the material before me, I am satisfied that there is a notification time in relation to the proposed agreement (see s 437(2A)), that a valid application has been made under s 437, and that the CEPU has been, and is, genuinely trying to reach an agreement with the company, which is the employer of the employees who are to be balloted (see s 443(1)). I note that the restriction in s 438 as to when applications may be made is not applicable. I am satisfied that within 24 hours after making the application the CEPU gave a copy of the application to the company and the proposed ballot agent (see s 440). As I am satisfied of these matters, I am required by s 443 to make a protected action ballot order in relation to the proposed agreement.
The ballot will be conducted by the AEC. For the purposes of s 443(3)(c), I determine that the date by which voting will close is 24 June 2024, which is 30 working days from the date of the order I will make. This also establishes the ballot period for the purpose of s 448A(2) of the Act. The protected action ballot order is issued separately in PR774927.
A further order will be issued shortly under s 448A requiring the attendance of all bargaining representatives at a conciliation conference, together with directions to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
Appearances:
K. Reid for the CEPU
N. Holden for Equans Fire Protection Services Pty Limited
Hearing details:
2024
Melbourne – by Microsoft Teams
10 May
Printed by authority of the Commonwealth Government Printer
<PR774925>
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