Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Twentieth Century Plumbing Pty Ltd
[2019] FWC 5942
•27 AUGUST 2019
[2019] FWC 5942
The attached document replaces the document previously issued with the above code on 27 August 2019 to correct typographical errors at paragraphs [2], [25], [31], [32], [40] and [41].
Associate to Deputy President Mansini
28 August 2019.
| [2019] FWC 5942 |
| 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
Twentieth Century Plumbing Pty Ltd
(B2019/692)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 27 AUGUST 2019 |
Proposed protected action ballot of employees of Twentieth Century Plumbing Pty Ltd.
[1] This is an application for a protected action ballot order, pursuant to s.443 of the Fair Work Act 2009 (Cth) (Act).
[2] Twentieth Century Plumbing Pty Ltd (Twentieth Century Plumbing) oppose the application on the basis that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) has not been, and is not, genuinely trying to reach an agreement.
[3] I have determined to grant the application and make the protected action ballot order. These are the reasons.
Statutory framework
[4] Section 437 of the Act enables a bargaining representative to apply for a protected action ballot order. Subject to the restrictions in s.437(2A) and s.438 (which are not presently relevant), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s.443. This section provides:
“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).”
[5] Whether an applicant “has been, and is, genuinely trying to reach an agreement” is a question of fact to be decided by reference to all of the circumstances of the bargaining in question. 1 It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.2 There are two temporal components to s.443; the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement.
[6] The Explanatory Memorandum contemplates that it could be the case that an applicant engaged in pattern bargaining as defined at s.412, in relation to the relevant employer, would not be genuinely trying to reach an agreement within the meaning of s.443. 3
[7] Section 412 provides as follows:
“412 Pattern bargaining
(1) A course of conduct by a person is pattern bargaining if:
(a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and
(b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and
(c) the course of conduct relates to 2 or more employers.
Exception—genuinely trying to reach an agreement
(2) The course of conduct, to the extent that it relates to a particular employer, is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer.
(3) For the purposes of subsection (2), the factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include 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.
(4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies.
Genuinely trying to reach an agreement
(5) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.”
[8] I now turn to the background and evidence relating to the application.
Relevant context
[9] Twentieth Century Plumbing, and the CEPU as bargaining representative of employees to be covered, are bargaining for an enterprise agreement to replace the 20th Century Plumbing Contracting Enterprise Agreement 2009-2012 (Proposed Replacement Agreement). 4 The existing enterprise agreement has a nominal expiry date of 1 March 2012.
[10] In November 2018, the CEPU first tabled a “log of claims” with Twentieth Century Plumbing.
[11] However, it is not disputed that bargaining did not commence until 3 July 2019, which was the “notification time” in accordance with s.173(2) of the Act. 5
[12] On 29 July 2019, the CEPU tabled a revised log of claims.
[13] Also on 29 July 2019, Twentieth Century Plumbing provided the CEPU with a copy of its claims, in the form of a draft Proposed Replacement Agreement.
[14] On 31 July 2019, a bargaining meeting took place at which the CEPU’s log of claims was discussed with Twentieth Century Plumbing.
[15] On 1 August 2019, Twentieth Century Plumbing responded in writing to the CEPU’s log of claims.
[16] On 13 August 2019, the CEPU met with its members employed by Twentieth Century Plumbing.
[17] On 15 August 2019, the CEPU tabled a further revised log of claims with Twentieth Century Plumbing. The CEPU’s evidence is that this revised log of claims included a number of concessions including on wage increases, severance payments and travel allowance. 6 The cover email from Mr Clark stated:
“I have attached a revised log of claims from our members, as you will see they have conceded on a few items to line up with Howrah Plumbing which is more than fair and reasonable given the current climate in the plumbing industry, see you tomorrow.”
[18] On 16 August 2019, another bargaining meeting took place. At this meeting, the CEPU’s further revised claims were discussed.
[19] On 19 August 2019, Twentieth Century Plumbing responded to the CEPU’s outstanding claims to the effect they were unwilling to meet these claims. 7
[20] The CEPU subsequently met with its members employed by Twentieth Century Plumbing who endorsed the application in this matter for a protected action ballot order.
[21] The CEPU’s evidence is that the CEPU and its relevant members have been trying, and “remain ready and willing to try”, to reach agreement with Twentieth Century Plumbing on the terms of the Proposed Replacement Agreement and will consider any proposal put by Twentieth Century Plumbing to resolve their outstanding claims. 8
[22] Twentieth Century Plumbing disputes that the CEPU is genuinely trying to reach an agreement. In support of this contention, Ms Angela Bennett (Executive Officer of the Master Plumbers Association of Tasmania, the employer’s bargaining representative) pointed in her evidence to the following:
a) The CEPU’s logs of claims dated 27 November 2018 and 29 July 2019 refer to an “Industry Agreement”, a document which was requested by Twentieth Century Plumbing but never provided by the CEPU; and
b) The email of 15 August 2019 and statements made at the bargaining meeting of 16 August 2019 demonstrate that the CEPU is no longer seeking an “Industry Agreement” but is now seeking wages and entitlements as recently negotiated by another employer, Howrah Plumbing. 9
[23] It was also submitted by Twentieth Century Plumbing that:
a) It has nothing further to give and cannot compete with the wages and provisions of a much larger company; and
b) In seeking this application for protected action, the CEPU is seeking to frustrate the company’s ability to function and meet service demands which puts at risk commercial contracts currently held by the company. If these contracts are compromised it puts at risk the very employment of those seeking to take industrial action.
[24] The representation of the two employers is common in that Ms Bennett and Mr Clark were also involved in the negotiations for the Howrah Plumbing enterprise agreement.
[25] At the hearing on 26 August 2019, Twentieth Century Plumbing’s evidence was that most of the terms of the Proposed Replacement Agreement have been agreed, and whilst this has involved the CEPU making some concessions, the matters not yet agreed include claims that are common to Howrah Plumbing’s recently concluded enterprise agreement.
[26] Specifically, the CEPU’s claims which Ms Bennett described as “identical” are:
a) Hourly rates;
b) Severance scheme; and
c) Income protection scheme.
[27] Ms Bennett acknowledged that Twentieth Century Plumbing’s draft Proposed Replacement Agreement includes provision for each of these conditions albeit in different terms.
[28] Mr Clark gave evidence that the hourly rates agreed by Howrah Plumbing and its employees are not identical to the claim for Twentieth Century Plumbing’s Proposed Replacement Agreement. This is so because, whilst the base rates on approval (if agreed) would be the same, the claim for Twentieth Century Plumbing is to pay increases during the life of the Proposed Replacement Agreement which is not part of Howrah Plumbing’s enterprise agreement. Accordingly, the claim is for different rates during the life of the Proposed Replacement Agreement.
[29] Mr Clark conceded that the severance scheme and income protection scheme claims are identical to that which Howrah Plumbing agreed but maintained there are a number of other points of difference. Claims unique and tailored to Twentieth Century Plumbing include: Risdon Prison allowance, living away from home allowance, Nyrstar site allowance and office staff wages.
[30] Further, Mr Clark’s evidence was that his members employed by Twentieth Century Plumbing are engaged side by side with employees of other employers and well aware of terms and conditions within the industry. He maintained that the CEPU and its relevant members would consider any proposal that Twentieth Century Plumbing offers to conclude the negotiations for the Proposed Replacement Agreement.
Is the CEPU genuinely trying to reach an agreement?
[31] Twentieth Century Plumbing oppose the application, for reasons which go to whether the CEPU is genuinely trying to reach agreement because it is “pattern bargaining” along with other broad contentions about the behaviours of the CEPU in bargaining which may be inconsistent with the requirement to genuinely try at s.443(1)(b).
[32] Before a protected action ballot order can be issued, the Commission must be satisfied that each applicant has been, and is, genuinely trying to reach agreement with the relevant employer. As foreshadowed above, it could conceivably be the case that an applicant engaged in pattern bargaining is not genuinely trying to reach an agreement.
[33] The CEPU’s hourly rates claim is not, on the evidence, pursued in common terms. 10
[34] I do not accept that the CEPU’s conduct in pursuing the remaining two claims, which seek conditions that the company is also proposing to offer (albeit in different terms), amounts to pattern bargaining.
[35] In any event, even if this could be established, the definition of pattern bargaining makes clear that a person is not engaged in pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with a particular employer. 11 Various considerations are listed by reference to which this question is in turn to be decided, though other matters may also be relevant.12
[36] It is clear on the evidence before me that the CEPU is prepared to take into account the circumstances of the particular employer.
[37] The evidence relating to the detail of the bargaining to date and the manner in which it is taking place between the CEPU and Twentieth Century Plumbing is set out above. In particular, there is an evolving union log of claims and company proposed draft agreement, bargaining meetings have taken place, some items have been agreed to and some concessions have been made.
[38] At the hearing, Twentieth Century Plumbing confirmed there is no issue as to whether the CEPU is meeting the good faith bargaining requirements.
[39] On my evaluation of the evidence in the present matter, and having regard to the considerations above, I do not identify a basis to conclude that the CEPU is engaged in pattern bargaining.
[40] I take note of s.412(5), which provides that the meaning of “genuinely trying to reach an agreement” as used elsewhere in the Act (such as in s.443), is not affected by s.412.
[41] In considering whether the CEPU has been and is genuinely trying to reach an agreement within the meaning of s.443, Mr Clark gaveevidence that the CEPU’s objective in bargaining with Twentieth Century Plumbing is to reach agreement. I accept this evidence. I note also that Ms Bennett acknowledged in her evidence that a number of concessions have been made by the CEPU in bargaining and that the parties are close to reaching agreement on the terms of the Proposed Replacement Agreement.
[42] Again, the evidence relating to the circumstances and the details of the negotiations that have occurred between the CEPU and Twentieth Century Plumbing is set out above. That history reveals, starkly, that the bargaining process has progressed to the point at which neither party is prepared to concede their respective bargaining positions on the outstanding issues.
[43] Twentieth Century Plumbing also complains about the CEPU’s conduct in applying for a protected action ballot order because it apprehends that industrial action (if approved by ballot and taken) by its employees may result in lost commercial opportunities, in turn adversely impacting on the viability of the business and jobs. However, the bringing of this application of itself does not mean that the CEPU is not genuinely trying to reach an agreement. To the contrary, taking steps to organise protected industrial action is a tool gifted by the statute for the CEPU to utilise in an effort to incentivise agreement.
[44] In my view the evidence supports a conclusion that the CEPU has been, and is, trying to reach an agreement with the employer of the employees whom it is proposed to ballot.
[45] As noted earlier, I have considered the company’s objections to the application. In my view the matters raised do not compromise the genuineness of the CEPU’s efforts to reach agreement with Twentieth Century Plumbing.
Conclusion
[46] Having regard to all of the circumstances of the bargaining in the present matter, I am satisfied that the CEPU, the applicant for the protected action ballot order, has been and is genuinely trying to reach agreement with Twentieth Century Plumbing.
[47] I am also satisfied that the restrictions on the making of an application under section 437(2A) and 438(1) are not applicable in the circumstances of the application, and that the other statutory criteria for the granting of a protected action ballot order in each application have been met.
[48] On the basis of the application materials, including the statutory declaration of Mr Chris Clark, and the views of Twentieth Century Plumbing, 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.
[49] An order has been separately issued in [PR711718].
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR711717>
1 Esso Australia Pty Ltd v AMWU; CEPU; AWU [2015] FWCFB 210 at 57;(2015) 257 IR 5 at 69.
2 Total Marine Services Pty Ltd v Maritime Union of Australia [2009]FWAFB 368; Application by NUW [2016] FWC 6262 at 25.
3 Explanatory Memorandum, Fair Work Bill 2008 (Cth) (Explanatory Memorandum) at 1772.
4 Statutory Declaration of Chris Clark dated 21 August 2019.
5 And as required, in this context, by s.437(2A) of the Act.
6 Statutory Declaration of Chris Clark dated 21 August 2019 and evidence of Chris Clark at the Hearing on 26 August 2019.
7 Statutory Declaration of Chris Clark dated 21 August 2019.
8 Ibid.
9 Witness Statement of Angela Bennett dated 26 August 2019 and evidence of Angela Bennett at the Hearing on 26 August 2019.
10 In accordance with the principles articulated by a Full Bench of this Commission in Trinity Garden Aged Care v Australian Nursing Federation (2006) 155 IR 124 at [21]-[22] and [28]-[31].
11 s.412(2) of the Act.
12 The factors at s.412 being a non-exhaustive list, see Explanatory Memorandum at 1661.
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