Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Konecranes and Demag Pty Ltd T/A Konecranes

[2021] FWC 3486

[2021] FWC 3486

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
Konecranes and Demag Pty Ltd T/A Konecranes
(B2021/415)

COMMISSIONER MCKINNON MELBOURNE, 16 JUNE 2021

Proposed protected action ballot order of employees engaged in crane maintenance and/or installation.

[1] On 14 December 2020 the Commission issued a majority support determination under section 237 of the Fair Work Act 2009 (the Act) in relation to Konecranes Pty Ltd. 1 The determination had the effect of requiring Konecranes to bargain for a single enterprise agreement with its employees who are “based in Tasmania with field-based roles which are predominately the physical installation and/or the maintenance of cranes, excluding those employees who predominately have project management, client management, estimation or business management type roles, or who provide logistical support for field-based employees doing the physical work”.

[2] There are ten employees that currently fall within this group. At least some of them are members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[3] The determination triggered a notification time for a proposed agreement 2. On 23 December 2020, Konecranes issued a notice of employee representational rights to the employees, as it was required to do.

[4] On 1 January 2021, Konecranes changed its name to Konecranes and Demag Pty Ltd following a global merger of two businesses.

[5] On 18 February 2021, the Union sent a log of claims to Konecranes in the form of a draft agreement. Since that time, the parties have engaged in bargaining but progress has been slow and frustrations have begun to emerge. The Union now seeks a protected action ballot order so that employees can take protected industrial action in support of the proposed agreement. Konecranes objects to the application (which it says is incomplete) because the Union is not genuinely trying to reach agreement. Konecranes also objects to the form of orders sought. On this last issue, I waived the requirement for the Union to complete question 2.2 of the application form filed with the application under rule 6 of the Fair Work Commission Rules 2013 in the hearing of this application on 16 June 2021.

Must a protected action ballot order be made?

[6] Once there has been a notification time in relation to a proposed enterprise agreement, section 437 of the Act permits a bargaining representative of an employee who will be covered by a proposed agreement to apply for protected action ballot order. Section 443 of the Act then sets two conditions on the making of a protected action ballot order. These are that:

1. an application has been made under section 437, and

2. the Commission is satisfied that each applicant has been, and is, genuinely trying to reach agreement with the employer of the employees to be balloted. 3

[7] The group of employees proposed to be balloted are members of the Union who are employed by Konecranes in the group set out above. This is the same group of employees who will be covered by the proposed agreement. The employees are covered by the Manufacturing and Associated Industries and Occupations Award 2020, which applies to their employment. None are covered by another enterprise agreement or an individual agreement-based transitional instrument.

Is the application made under section 437?

[8] The Union is entitled to apply for protected action ballot orders in relation to Konecranes because employees in the relevant group are not covered by an enterprise agreement and the Union is a bargaining representative for at least some of them. The application is properly made under section 437 of the Act.

Is the Union genuinely trying to reach agreement, and has it been?

[9] Whether an applicant is genuinely trying to reach agreement is a question of fact to be decided having regard to the circumstances of the case, which might include the extent of progress in negotiations, steps to try and reach agreement and the nature or content of claims. 4

[10] Konecranes submits that I cannot be satisfied in this case that the Union has been, or is, genuinely trying to reach agreement. It says the application is premature and that rather than providing any substantive response to issues raised by Konecranes in bargaining, the Union has limited its response to the possibility of protected industrial action.

[11] Mr Hardy, lawyer for Konecranes, is involved in bargaining for the proposed agreement. According to Mr Hardy:

1. On 18 February 2020, the Union provided a draft enterprise agreement which was essentially its log of claims. The draft was a template agreement for the building and construction industry. As Konecranes is in the manufacturing industry, the template was not suited to its business and much of what was sought was either irrelevant, inappropriate or inapplicable. This caused concern for Konecranes about whether the Union was genuinely trying to reach agreement.

2. Konecranes worked through each of the issues in the template agreement and provided a written response to the Union on 7 April 2021. The response was then discussed on 8 April 2021 in a bargaining meeting, but no substantive responses were provided by the Union, either then or since.

3. On 19 May 2021, another bargaining meeting was held. Konecranes went through a ‘red-line’ mark-up of the proposed agreement with changes it had made to make the agreement relevant to its business and the manufacturing industry it operates within. The parties went through the draft clause by clause. Comments were made on behalf of employees to the effect that “given the number of changes being made, perhaps it was time for a protected action ballot order.” Konecranes responded that this would be inappropriate and premature, as the parties had only just started bargaining and still needed to look at rates, classifications and allowances. The parties discussed the need for Konecranes to obtain internal approval to put a position on those matters to the Union.

4. On 28 May 2021, Mr Hardy changed law firms. He contacted the Union on 1 June 2021 to advise that another draft of the proposed agreement was being finalised and that it would include an offer in relation to rates of pay. There was then another conversation with the Union about whether protected action ballot orders should be sought, and whether that was premature. The Union was asked to at least wait until a rates proposal had been provided for it to respond to.

5. The parties were due to meet today (16 June 2021) for a further bargaining. Konecranes sent the Union a rates proposal together with a redrafted enterprise agreement but the bargaining meeting did not proceed because the Union did not see any utility in that until it had considered the proposal and spoken to members about it.

[12] Mr Clark, from the Union, generally agrees with the timeline of bargaining set out by Mr Hardy and is also involved in bargaining. He rejects any suggestion that the Union is not genuinely trying to reach agreement with Konecranes. According to Mr Clark:

1. The Union initiated bargaining through the majority support determination process after requests to bargain were ignored by Konecranes.

2. The Union provided a template agreement to Konecranes on 18 February 2020. The content of the draft was, and is, relevant to its members at Konecranes. The only document Mr Clark has received from Konecranes is the one provided on 7 April 2021. He has not yet seen the document provided by Konecranes today.

3. There have been numerous meetings with the company and claims made by the Union have almost all been rejected. The meeting on 19 May 2021 was productive and there was discussion about clauses that might be changed or excluded from the proposed agreement.

4. The Union disagrees that it has not provided substantive response to issues raised by Konecranes. The relevant underlying award is not a ‘die in a ditch’ issue for the Union and this has been indicated to Konecranes. From his perspective, this matter is agreed.

5. The Union did raise the prospect of a protected action ballot order application in the bargaining meeting on 19 May 2021. It also asked for more information from Konecranes, including its proposal for wage rates and a ‘mock-up agreement’ so that it could put these to members. The requested information was not provided in the timeframe indicated and was not provided until today.

6. The process has been dragging out for too long and the delay is caused by Konecranes. When the Union requests information at bargaining meetings, it doesn’t turn up. It is six months since bargaining began, but the information Konecranes said it would provide after the first bargaining meeting has only now been provided.

[13] It is clear from the submissions that bargaining in this matter still has some way to go. Little progress has been made since the notification time on 14 December 2021. The parties have different views about what has been sought and provided during bargaining, and about what has been agreed. The disputes are not necessary to resolve for present purposes. The delay in bargaining, and the lack of progress, are each regrettable and both parties share responsibility for this.

[14] The Union’s initial proposal of a template agreement, developed for a different industry, has caused delay by requiring Konecranes to effectively redraft the document to suit its business. The Union held off on providing a substantive response to the detailed draft provided by Konecranes on 7 April 2021 while waiting for an offer on wages and allowances. The Union could have put more effort into developing its log of claims for Konecranes and it could have responded to many of the matters about which Konecranes has put a position so that progress could at least be made on those.

[15] For its part, Konecranes has taken longer than would seem necessary to finalise and share its proposals with the Union, including on the important issues of wages and allowances. While I accept that it has had a number of competing priorities, it could have given greater priority to bargaining and obtained the necessary internal approvals earlier than it did.

[16] The fact that parties could do more, or bargain better, does not mean they are not genuinely trying to reach agreement. All it means is that bargaining may take longer, and/or that agreement may be more difficult to achieve.

[17] The Union has put its log of claims to Konecranes and has attended and participated in bargaining meetings at times agreed between the parties. It has asked Konecranes for its position and has waited for additional information to come. It has agreed to requests made by Konecranes for additional time to provide relevant information or proposals. It is, and has been, genuinely trying to reach agreement with Konecranes on an enterprise agreement that will cover the relevant group of employees.

[18] Konecranes is also genuinely trying to reach agreement with the Union. It has attended and participated appropriately in bargaining meetings. It has invested substantial time and effort in preparing its response to the Union’s initial claim. It remains actively involved in the bargaining process.

Conclusion

[19] As:

1. the application has been made under section 437, and

2. I am satisfied that the Union has been, and is, genuinely trying to reach agreement with Konecranes in relation to the employees to be balloted, and

3. There is no other reason why a protected action ballot order cannot be made in this case,

I must make a protected action ballot order.

Form of orders

[20] The Union seeks that voting in the protected action ballot close 21 days after my decision. Due to the COVID-19 pandemic, the AEC has requested a period of 30 working days to conduct ballots of this kind. The order will provide for a 30-day period for the conduct of the ballot.

[21] Konecranes takes issue with a number of the Union’s proposed ballot questions, for reasons including that some raise work, health and safety issues, or may give rise to breaches of the good faith bargaining requirements, or lack specificity. There are separately questions about whether the form of words is appropriate and whether some of the question overlap.

[22] A short period of time will be allowed for the parties to make submissions about the form of orders to be made. An order will then be issued giving effect to this decision.

Directions

[23] The parties are to provide any submissions in relation to the proposed ballot questions by 12.00pm on 17 June 2021.

[24] The parties are to provide any submissions in reply in relation to the proposed ballot questions by 4.00pm on 17 June 2021.

COMMISSIONER

Appearances:

C Clark for the Applicant.
S Hardy of K&L Gates for the Respondent.

Hearing details:

2021.
Melbourne (video hearing):
June 16.

Printed by authority of the Commonwealth Government Printer

<PR730797>

 1   PR725411.

 2 See section 173(2)(b) of the Fair Work Act 2009 (Cth).

 3   Fair Work Act 2009 (Cth), s. 443.

 4  See, for example, Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; (2009) 189 IR 407 at [32]-[33]; Esso Australia Pty Ltd 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 (CEPU); The Australian Workers' Union (AWU)[2015] FWCFB 210 at [34]-[35].