Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Stowe Australia Pty Ltd
[2024] FWC 767
•25 MARCH 2024
| [2024] FWC 767 |
| 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
Stowe Australia Pty Ltd
(B2024/246)
| COMMISSIONER CRAWFORD | SYDNEY, 25 MARCH 2024 |
Proposed protected action ballot of employees of Stowe Australia Pty Ltd – genuinely trying to reach agreement argument and safety concerns – order made
Background
This is an application by the 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 in relation to certain employees of Stowe Australia Pty Ltd (Stowe Australia). The application was filed on 22 March 2024.
Later in the day on 22 March 2024, the Commission was advised that Stowe Australia opposes the Application on the basis that the CEPU has not been genuinely trying to reach agreement. Stowe Australia also raised concerns that some of the types of industrial action proposed in the ballot may create safety issues for employees, clients, and the public.
Given Stowe Australia’s opposition, I listed the application for hearing at 2:00pm on 25 March 2024 via video.
Alister Kentish (Legal Officer) represented the CEPU at the hearing on 25 March 2024. Stowe Australia was represented by Scott Wark (Hunter & Central Coast Branch Manager), Scott Gandy (General Manager NSW, WA & ACT), and Lisa Carey (Solicitor – NECA Legal).
Material relied upon
CEPU
In addition to its Form F34 application and an accompanying draft order, the CEPU relied on a Form F34B declaration made by Ashley Bamford (Organiser) on 21 March 2024. Mr Banford’s declaration states:
a.Stowe Australia initially issued a notice of employee representational rights (NERR) on 8 August 2023. A second NERR was issued on 8 February 2024.
b.The Stowe Australia Pty Ltd – Newcastle & Central Coast Enterprise Agreement 2019 nominally expired on 25 November 2023.
c.The CEPU provided Stowe Australia with a log of claims on 27 August 2023.
d.There have been seven bargaining meetings from 27 August 2023 to 18 March 2024.
e.There are a significant number of claims that remain in dispute between the CEPU and Stowe Australia. These include core provisions such as wage increases, duration, and scope.
f.Stowe Australia has requested that employees vote on a proposed agreement on 27 and 28 March 2024.
Mr Bamford corrected the dates relating to an upcoming ballot of employees in his declaration from 27 and 28 March 2024, to 28 and 29 March 2024, under an affirmation. Mr Bamford also provided some additional evidence about availability issues that have arisen in relation to arranging bargaining meetings in late February and early March 2024. I marked Mr Bamford’s amended declaration Exhibit A1. Mr Bamford was not cross-examined on his evidence.
Mr Kentish also provided oral submissions during the hearing.
Stowe Australia
Stowe Australia relied on an email from Mr Wark to the Commission dated 22 March 2024. Mr Mark’s email raises concerns regarding whether the CEPU has been genuinely trying to reach agreement and identifies safety issues that may arise from the proposed industrial action. I marked Mr Wark’s email Exhibit R1.
Stowe Australia also relied on an email from Mr Wark to Mr Bamford dated 16 March 2024. Mr Wark’s email contained the following three attachments: a proposed agreement, a response to the CEPU’s log of claims, and an update to employees about the bargaining process. I marked Mr Wark’s email, and its attachments, Exhibit R2.
Mr Wark was not cross-examined on his evidence.
Mr Wark and Ms Carey also provided oral submissions during the hearing.
Consideration
The Full Bench in Esso Australia Pty Ltd v AMWU, CEPU and AWU [2015] FWCFB 210 provided the following summary of the key authorities in terms of assessing whether an applicant is genuinely trying to reach agreement (endnotes omitted):
[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were ‘put to one side’; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified. In the course of its decision the Full Bench expressed the following views about s.443(1)(b),:
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).
I am satisfied based on the uncontested evidence of Mr Bamford that the CEPU has been, and is, genuinely trying to reach agreement with Stowe Australia. It is clear the CEPU has articulated its claims and is attending bargaining meetings to discuss these claims, and those made by Stowe Australia. The parties appear significantly apart in terms of several important claims such as wage increases, duration, and scope. I am satisfied the CEPU has made this application to further its genuine attempts to reach agreement with Stowe Australia.
Stowe Australia particularly referred to the CEPU’s refusal to move in relation to its claim for the new agreement to nominally expire in around two years, to demonstrate the CEPU is not genuinely trying to reach agreement. Although I accept the evidence suggests Stowe Australia has been prepared to move from its initial claim for a four-year nominal term to a three-year nominal term, the CEPU refusing to move on this one claim could not in itself justify a conclusion that the CEPU is not genuinely trying to reach agreement. If Stowe Australia is concerned that the CEPU is not genuinely considering any proposals during bargaining, including in relation to the duration of the new agreement, Stowe Australia has the option of utilising the good faith bargaining regime. Stowe Australia can also request that employees vote on its proposed agreement, and that is precisely what Stowe Australia is doing on 28 and 29 March 2024.
In relation to Stowe Australia’s concerns that some of the proposed industrial action may create safety issues, I do not consider this application is the appropriate time for those concerns to be agitated. As Deputy President Hampton identified in UWU v Lineage Aus TRS Pty Limited,[1] there is no “general discretion afforded to the Commission to refuse a ballot question … on safety grounds.”[2]
The questions proposed by the CEPU “must describe the industrial action in such a way that employees are capable of responding to them.”[3] I am satisfied that this test has been met in relation to the questions proposed by the CEPU. Stowe Australia has not argued that any of the questions are ambiguous.
I am satisfied that there is a notification time in relation to the proposed agreement and that all of the other requirements in s.443(1) of the Act have been met.
The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act[4] and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) and s.448A(2) of the Act, I have determined the date by which voting closes for the ballot will be 10 working days from the date of this Order. This was the date proposed by the CEPU.
An order has been separately issued in PR772712.
This matter will be assigned to a Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
COMMISSIONER
Appearances:
A Kentish for the CEPU.
S Wark, S Grandy, and L Carey from NECA Legal on behalf of Stowe Australia.
Hearing details:
25 March.
Via Video.
2024.
[1] [2024] FWC 657.
[2] Ibid at [6].
[3] John Holland Pty Ltd v AMWU [2010] FWAFB 526, 194 IR 137.
[4] Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting[2023] FWC 1531.
Printed by authority of the Commonwealth Government Printer
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