Construction, Forestry and Maritime Employees Union v Qube Ports Pty Ltd T/A Qube Ports
[2024] FWC 2303
•28 AUGUST 2024
| [2024] FWC 2303 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry and Maritime Employees Union
v
Qube Ports Pty Ltd T/A Qube Ports
(B2024/1056)
Construction, Forestry and Maritime Employees Union
v
Qube Ports Pty Ltd T/A Qube Ports
(B2024/1058)
| COMMISSIONER CRAWFORD | SYDNEY, 28 AUGUST 2024 |
Proposed protected action ballots of employees of Qube Ports Pty Ltd working at the Port of Adelaide and the Port of Darwin – employer arguing CFMEU not genuinely trying to reach agreements – satisfaction that the CFMEU is genuinely trying to reach agreements – orders made.
Background
The Construction, Forestry and Maritime Employees Union (CFMEU) has made applications under s.437 of the Fair Work Act 2009 (FW Act) for protected action ballot orders in relation to certain employees of Qube Ports Pty Ltd (Qube Ports).
The CFMEU’s first application concerns employees of Qube Ports working at the Port of Adelaide. The first application was filed in the Fair Work Commission (Commission) at 4:41pm AEST on Tuesday, 20 August 2024 and was identified by the Commission as Matter B2024/1056.
The CFMEU’s second application concerns employees of Qube Ports working at the Port of Darwin. The second application was filed in the Commission at 4:46pm AEST on Tuesday, 20 August 2024 and was identified by the Commission as Matter B2024/1058.
The Commission sent correspondence to Qube Ports in relation to both applications prior to 9:30am on Wednesday, 21 August 2024. Qube Ports was directed to confirm whether it opposed the applications by 1:00pm AEST on Wednesday, 21 August 2024.
Qube Ports notified the Commission that it objected to both applications at 12:38pm AEST on Wednesday, 21 August 2024. Qube Ports indicated it intended to argue the CFMEU has not been, and is not, genuinely trying to reach agreement with Qube Ports. Qube Ports indicated it would be necessary for evidence to be filed given the nature of the objections and stated it would confer with the CFMEU about a suitable timetable.
The applications were then allocated to me. I listed the applications for Mention/Directions via video at 9am AEST on Thursday, 22 August 2024.
During the Mention/Directions proceeding I granted permission for Qube Ports to be represented in relation to the applications on the basis I was satisfied that granting permission would enable the applications to be dealt with more efficiently. I also determined that both applications would be joined and heard together in Sydney on 27 August 2024. Directions were issued for the filing of material by Qube Ports on 23 August 2024 and the CFMEU on 26 August 2024.
Section 441 of the FW Act states the Commission must “as far as practicable, determine an application for a protected action ballot order within two working days after the application is made.” The two working day period lapsed at the end of Thursday, 22 August 2024. The parties submitted it was not possible for the applications to be determined within the two working day timeframe because they both wished to file additional evidence and submissions. I agreed that it was not practicable for the applications to be dealt with within two working days. However, I did insist upon significantly shorter filing dates that those initially sought by Qube Ports, given the FW Act clearly intends for this type of application to be dealt with urgently.
Mr Luke Edmonds (National Legal Officer) appeared with Ms Ella Rowe (Legal Officer) for the CFMEU at the hearing on 27 August 2024. Mr Matthew Follett of Senior Counsel and Mr Matthew Minucci of Counsel appeared with permission for Qube Ports, instructed by Ms Anastasia Hatzisarantinos, Solicitor, from Allens.
Material relied upon
CFMEU
The CFMEU filed Form F34 applications with the required content, including draft orders.
The CFMEU relied on an outline of submissions in relation to both applications dated 26 August 2024. Mr Edmonds also made oral submissions at the end of the hearing.
The CFMEU relied on the following evidence in support of its respective applications.
Port of Adelaide evidence
The CFMEU relied upon a Form F34B declaration made by Warren Smith (Divisional Deputy National Secretary) on 20 August 2024. Mr Smith’s declaration referred to an attached witness statement. I marked the Form F34B declaration Exhibit Adelaide A1.
Mr Smith provided a witness statement dated 20 August 2024. Mr Smith’s statement indicates that Qube Ports has 19 separate enterprise agreements at various ports around Australia that were made in around 2021 and have a nominal expiry date of 30 June 2024 (except a Sydney Harbour agreement that nominally expired on 30 June 2020). Each agreement contains a Part A which has historically contained terms which apply at all ports and are negotiated at a national level. Each agreement then contains a Part B, detailing the port-specific terms which, historically, have been negotiated at a local level. Mr Smith states the first bargaining meeting for the proposed Qube Ports Pty Ltd Port of Adelaide Enterprise Agreement 2024 (Proposed Adelaide Agreement) was held on 23 April 2024 and that the CFMEU tabled its log of claims in relation to Part A at that meeting. Qube Ports also presented a log of claims at this meeting.
Mr Smith’s statement had the following documents attached:
-WS1: A copy of the Notice of Employee Representational Rights (NERR) issued by Qube Ports for the Proposed Adelaide Agreement in late March 2024.
-WS2: A copy of a s.240 bargaining dispute notification filed by the CFMEU in the Commission on 25 May 2024. The application was directed at disputes in relation to all 19 bargaining processes. On 31 May 2024, the CFMEU provided Qube Ports with a revised log of claims ahead of a conference in the Commission listed for 3 June 2024.[1]
-WS3: A covering email sent by Mr Smith to Dan Coulton (General Manager – Industrial Relations) on 26 June 2024 with an updated log of claims for Part A.
-WS4: A copy of the updated log of claims for Part A.
-WS5: A copy of Qube Ports’ response to the CFMEU’s updated log of claims for Part A.
-WS6: A copy of the CFMEU’s log of Part B claims for the Proposed Adelaide Agreement which was presented to Qube Ports at a bargaining meeting on 2 August 2024.
-WS7: A copy of the CFMEU’s latest Part A log of claims.
I marked Mr Smith’s statement, and the attachments, as Exhibit Adelaide A2.
The CFMEU also relied on a supplementary statement from Mr Smith dated 25 August 2024. Mr Smith’s supplementary statement points out that competitors to Qube Ports also negotiate enterprise agreements in a similar fashion, with generic national conditions contained in Part A and local level conditions in Part B. Mr Smith identified 12 enterprise agreements negotiated with LINX Cargo Care Pty Ltd as being in the same format. Mr Smith identified that four DP World enterprise agreements have the same format. Mr Smith stated Patrick Stevedores has a single national enterprise agreement which has generic terms in Part A and terminal specific conditions in schedules. Mr Smith states the CFMEU’s normal approach to all these bargaining processes is to try and settle Part A claims first. Mr Smith states Mr Coulton expressly rejected the idea of negotiating one national enterprise agreement as an alternative to the 19 separate port agreements. Mr Smith stated he does not consider the CFMEU’s claims to be excessive when viewed in the context of other conditions in the industry. Mr Smith referred to the COVID-19 pandemic as having an impact on the CFMEU’s approach to the negotiations for the current agreements, and that the smaller number of claims should be viewed in that context.
Mr Smith’s supplementary statement had the following documents attached:
-WS8: A copy of a letter from Qube Ports to the CFMEU dated 12 July 2024 which raised concerns with the CFMEU’s approach to bargaining.
-WS9: A copy of the CFMEU’s response to the letter from Qube Ports (WS8) dated 30 July 2024.
I marked Mr Smith’s supplementary statement, and the attachments, as Exhibit A3 in both matters.
Mr Smith was not required for cross-examination in relation to his evidence.
Port of Darwin evidence
The CFMEU relied upon a Form F34B declaration made by Warren Smith (Divisional Deputy National Secretary) on 20 August 2024. Mr Smith’s declaration referred to an attached witness statement. I marked the Form F34B declaration Exhibit Darwin A1.
Mr Smith provided a witness statement dated 20 August 2024. The statement is in largely the same terms as Mr Smith’s statement in relation to the application for the Port of Adelaide and attaches most of the same documents. The key differences are:
-The first bargaining meeting for the proposed Qube Ports Pty Ltd Port of Darwin Enterprise Agreement 2024 (Proposed Darwin Agreement) occurred on 12 June 2024.
-The CFMEU provided Qube Ports with its Part B log of claims for the Proposed Darwin Agreement on 2 August 2024.
I marked Mr Smith’s statement Exhibit Darwin A2.
Mr Smith’s supplementary statement provides evidence in support of both applications. The supplementary statement is marked Exhibit A3.
Mr Smith was not required for cross-examination in relation to his evidence.
Qube Ports
Qube Ports relied on an outline of submissions in opposition to both applications dated 23 August 2024. Mr Follett SC made oral submissions at the end of the hearing.
Qube Ports relied on an excerpt from the transcript of a hearing conducted by Deputy President Boyce on 1 August 2024. The transcript relates to evidence given by Mr Smith in support of similar applications made by the CFMEU concerning Qube Ports employees working at ports in Brisbane and Port Kembla. I marked the transcript excerpt Exhibit R1 in both matters.
Qube Ports relied on a witness statement from Daniel Ortiz (General Manager – Industrial Relations) dated 23 August 2024 in relation to both applications. Mr Ortiz confirms Qube Ports has 19 enterprise agreements that apply at various ports around Australia. These include the Qube Ports Pty Ltd Port of Adelaide Enterprise Agreement 2020 (Current Adelaide EA) and the Qube Ports Pty Ltd Port of Darwin Enterprise Agreement 2021 (Current Darwin EA), both of which nominally expired on 30 June 2024. Mr Ortiz confirms all the 19 enterprise agreements have a Part A containing national terms and a Part B containing local terms. Mr Ortiz states Part B terms prevail in the extent of any inconsistency.
In relation to the bargaining process, Mr Ortiz states Qube Ports is conscious to try and avoid a situation where employees take significant periods of industrial action in support of Part A national claims which may or may not be subsequently overridden by Part B local terms. Mr Ortiz states that occurred in relation to the previous round of bargaining at the Port of Fremantle. Qube Ports determined a port-by-port bargaining approach is preferable for these negotiations to ensure all issues and concerns at each port are dealt with.
Mr Ortiz states the first-round bargaining meeting for the Proposed Adelaide Agreement was held on 23 April 2024. The CFMEU presented its log of claims at this meeting which entailed 103 claims for Part A and no claims for Part B. A second-round bargaining meeting for the Proposed Adelaide Agreement was held 2 August 2024. During this meeting the CFMEU tabled its 21 June 2024 log of claims for Part A matters and nine Part B claims for the Proposed Adelaide Agreement. Draft clauses for the Part B claims were not provided.
Mr Ortiz states the first-round bargaining meeting for the Proposed Darwin Agreement was held on 12 June 2024. The log of claims was identical to that presented for the Proposed Adelaide Agreement. A second-round bargaining meeting for the Proposed Darwin Agreement was held 2 August 2024. During this meeting the CFMEU tabled its 21 June 2024 log of claims for Part A matters and 12 Part B claims for the Proposed Darwin Agreement. Draft clauses for the Part B claims were not provided.
Mr Ortiz raises the following concerns with the CFMEU’s approach to bargaining in his statement:
· The volume of Part A claims made by the CFMEU. Mr Ortiz refers to 103 initial claims and 83 outstanding claims. Mr Ortiz states the CFMEU had less than 40 Part A claims in relation to the current agreements. Mr Ortiz states the proposed claims would lead to Qube Ports doubling its labour cost base. Mr Ortiz also states some of the withdrawn claims from the CFMEU were duplicates and others are administrative matters.
· Several CFMEU claims are unrealistic. Mr Ortiz refers to a claim for wage parity, a 7 & 1 roster, consequences for pay errors, and a claim for 3 x 12-hour shifts allocated per week.
· The CFMEU appears to be pursuing a national baseline agreement with its Part A claims and will then deal with the actual terms and conditions for each port via its Part B claims.
· The CFMEU has failed to explain the significance of its Part A claims in relation to the Proposed Adelaide Agreement and the Proposed Darwin Agreement.
· The CFMEU has failed to comply with repeated requests from Qube Ports to explain the justification for each Part A claim at specific ports. The CFMEU has responded at a very high level and referred to the Part A claims being “national claims.”
Mr Ortiz identifies specific concerns that Qube Ports has concerning the CFMEU’s Part A claims for the Proposed Adelaide Agreement and the proposed Darwin Agreement.
In relation to the Proposed Adelaide Agreement, Mr Ortiz highlights the CFMEU’s 7 & 1 roster and moorings Part A claims as being unworkable due to operational issues at the Port of Adelaide.
In relation to the proposed Darwin Agreement, Mr Ortiz provides evidence about operational issues at the Port of Darwin that would arise from the CFMEU’s mooring and 7 & 1 roster claims.
Mr Ortiz also responds to parts of Mr Smith’s statements dated 20 August 2024. Mr Ortiz disagrees with Mr Smith’s description of how the CFMEU’s Part A log of claims has been presented to Qube Ports and explains that Qube Ports did not reject all the CFMEU’s claims, with reference to specific responses provided by Mr Coulton.
Mr Ortiz’s statement has the following documents attached:
· Attachment 1: A copy of the NERRs issued for the Proposed Adelaide Agreement and the Proposed Darwin Agreement on 21 March 2024.
· Attachment 2: A copy of an email from Mr Coulton to Mr Smith dated 26 March 2024. The purpose of the email was to try and arrange first-round bargaining meetings at each port. The date proposed for the first Adelaide meeting was 23 April 2024 and the date proposed for the first Darwin meeting was 26 April 2024. A proposed meeting schedule was attached to the email.
· Attachment 3: A copy of a letter from Mr Smith to Mr Coulton dated 4 April 2024. Mr Smith indicates the CFMEU is not available for several of the proposed meetings and states the CFMEU would seek to negotiate Part A terms first. Mr Smith states the CFMEU will attend some of the proposed meetings but remains of the view that Part A claims should be dealt with first. Mr Smith attached a copy of the CFMEU’s Part A log of claims.
· Attachment 4: A copy of the first-round bargaining meeting dates proposed by Qube Ports.
· Attachment 5: This is a copy of a revised log of claims provided by the CFMEU to Qube Ports on 31 May 2024. The revised log withdrew six claims and combined two claims, leaving a total of 95 claims for Part A.
· Attachment 6: A copy of a letter dated 12 June 2024 from Qube Ports to the local CFMEU official at the Port of Adelaide, Mr Duignan. The letter from Qube Ports raised concerns with the CFMEU’s log of claims and sought justification for how each claim was relevant for the Port of Adelaide.
· Attachment 7: A copy of a letter dated 18 June 2024 from Qube Ports to the local CFMEU official at the Port of Darwin, Mr Burford. The letter from Qube Ports raised concerns with the CFMEU’s log of claims and sought justification for how each claim was relevant for the Port of Darwin.
· Attachment 8: A copy of an email purportedly sent by Mr Smith to CFMEU members on 12 June 2024. The email raises concerns with Qube Ports refusing to discuss Part A claims on a national basis as a first step in bargaining.
· Attachment 9: A copy of a letter from Mr Coulton to Mr Smith dated 14 June 2024. Mr Coulton’s letter raises concerns with the CFMEU’s approach to bargaining and particularly the lack of focus on port specific issues. The letter suggests the CFMEU is frustrating bargaining and may be breaching the good faith bargaining requirements.
· Attachment 10: A copy of an amended Part A log of claims from the CFMEU that was provided to Qube Ports on 21 June 2024. Around 24 draft clauses were included.
· Attachment 11: This is a copy of an amended Part A log of claims provided by the CFMEU to Qube Ports on 26 June 2024 after a s.240 bargaining dispute conference. The CFMEU withdrew 10 claims in this amended log, leaving 85 claims outstanding.
· Attachment 12: A copy of an amended response to the CFMEU’s log of claims provided by Qube Ports on 3 July 2024. Qube Ports had previously provided a brief response in a short timeframe on 26 June 2024.
· Attachment 13: A log of Part B claims for the Proposed Adelaide Agreement provided by the CFMEU to Qube Ports on 1 August 2024. Nine claims were included. The covering email indicated the claims sit alongside the previously provided Part A claims.
· Attachment 14: A log of Part B claims for the Proposed Darwin Agreement provided by the CFMEU to Qube Ports on 1 August 2024. Twelve claims were included. The covering email indicated the claims sit alongside the previously provided Part A claims.
· Attachment 15: A copy of an email from Mr Smith to Mr Coulton dated 31 July 2024. The email amended the CFMEU’s overtime claim and withdrew a claim regarding mooring allocations, except for the North West WA operations where it will be dealt with as a Part B claim.
· Attachment 16: A copy of an email from Mr Smith to Mr Coulton dated 19 August 2024. The email contained further information about the CFMEU’s Part A claims as they relate to the Proposed Adelaide Agreement and the Proposed Darwin Agreement.
· Attachments 17 to 19: These are copies of emails sent by the CFMEU to Qube Ports in relation to bargaining for ports in Melbourne, Brisbane and Port Kembla. The email was almost identical to the one provided by the CFMEU for the Proposed Adelaide Agreement and the Proposed Darwin Agreement.
· Attachment 20: A copy of a letter from Qube Ports to the CFMEU dated 12 July 2024. The letter raised the following concerns with the CFMEU’s conduct in bargaining: pursuing Part A claims that it knows Qube Ports cannot agree to, creating a bifurcated bargaining process by pursuing Part A claims which may be later overridden by Part B terms, refusing to provide Qube Ports with further information about the CFMEU’s Part A claims, and not attending bargaining meetings in an acceptable or appropriate manner.
· Attachment 21: A copy of a letter from the CFMEU to Qube Ports dated 30 July 2024 responding to the concerns raised in Qube Ports’ correspondence dated 12 July 2024. The CFMEU’s letter indicated it was applying the same approach to bargaining in relation to Part A and Part B claims as has occurred historically and rejected the accusation that the CFMEU is failing to provide information about its bargaining claims.
· Attachment 22: A copy of a letter from Qube Ports to the CFMEU dated 6 August 2024. The letter proposed a rollover of the terms of the existing enterprise agreements with pay rises for each port.
· Attachment 23: A graph showing peaks of work at the Port of Adelaide, indicating that most work is done in nine months of the year. Qube Ports argues the graph demonstrates why it could not accommodate the CFMEU’s 7 & 1 roster claim.
· Attachment 24: A copy of an email from Paul Brett to Mr Coulton dated 17 July 2024 which indicates local level issues at the Port of Esperance were not being considered when formulating the CFMEU’s Part A claims.
Mr Ortiz made two minor corrections to paragraph [37] of his witness statement during the hearing. I marked Mr Ortiz’s amended statement, and the attached documents, Exhibit R2 in both matters.
Mr Ortiz was cross-examined on his evidence during the hearing on 27 August 2024.
Mr Ortiz admitted during cross-examination that he understood the CFMEU’s claims well enough to produce cost estimates. Mr Ortiz also accepted the CFMEU is continuing to attend meetings with Qube Ports in relation to the Proposed Adelaide Agreement and the Proposed Darwin Agreement.
Statutory provisions
Section 443 of the FW Act states the Commission must make a protected action ballot if the prescribed requirements are satisfied. Section 443 of the FW Act states:
“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).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
Consideration – valid application
I am satisfied that the CFMEU has made valid applications under s.437 of the FW Act. Qube Ports did not contest this point.
The CFMEU has provided draft orders that are consistent with the requirements specified in s.443(3) of the FW Act.
Qube Ports opposes the CFMEU’s applications on the basis that the CFMEU has not been, and is not, genuinely trying to reach an agreement with Qube Ports in relation to the Proposed Adelaide Agreement and the Proposed Darwin Agreement.
Authorities – genuinely trying to reach agreement
The Full Bench in Esso[2] 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).
Qube Ports referred to the judgment of Flick J in JJ Richards[3]. His Honour identified the following as minimum indicative steps that are required to establish that an applicant is genuinely trying to reach agreement:
“An applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and
the employer has foreshadowed – even in the most general of terms – its attitude as to the proposed agreement.
More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied.”[4]
Qube Ports also referred to parts of the Full Bench decision in Total Marine Services[5] where the Full Bench determined the MUA had not established it was genuinely trying to reach agreement because “the steps it had taken were preparatory to developing an agreement but in our view insufficient to satisfy the test its application needed to meet.”[6] In that case, the MUA had “parked” certain industry matters and had not provided a wage claim.
Qube Ports’ grounds of opposition
Qube Ports advances the following five arguments in support of its contention that the CFMEU has not been, and is not, genuinely trying to reach agreement in relation to the Proposed Adelaide Agreement and the Proposed Darwin Agreement.
1. The applications are premature.
Qube Ports refers to the history of bargaining provided by Mr Ortiz and submits there have only been two meetings for each proposed agreement. Qube Ports refers to the CFMEU’s 85 Part A claims and an additional total of 21 key Part B claims for the Proposed Adelaide Agreement and the Proposed Darwin Agreement. Qube Ports identifies that a minimal number of draft clauses have been provided by the CFMEU and that further Part B claims may be advanced for both agreements.
Qube Ports submits that the ability of subsequently negotiated local port Part B terms to override the national Part A terms means Qube Ports cannot meaningfully consider the CFMEU’s claims.
Qube Ports refers to the Full Bench decision in Total Marine Services and submits the CFMEU cannot currently articulate its claims to the requisite level so as to establish that it has been, and is, genuinely trying to reach agreement.
2. The CFMEU’s true motivation is to seek an intractable bargaining declaration as opposed to reaching agreements with Qube Ports.
Qube Ports submits it is open for the Commission to infer from the CFMEU’s conduct in bargaining that the CFMEU is pursuing a strategy directed towards achieving an intractable bargaining declaration and subsequent determination.
In support of this submission, Qube Ports refers to the CFMEU seeking an unrealistic national outcome via its Part A claims which present a pathway to ensuring agreements cannot be reached. Qube Ports refers to the quantity of claims, the cumulative cost impact of the claims, and the lack of details provided by the CFMEU, to argue that the CFMEU is seeking an intractable bargaining declaration and is not genuinely trying to reach agreements.
3. The CFMEU’s log of claims is so unrealistic that the Commission cannot be satisfied it is genuinely trying to reach agreements with Qube Ports.
Qube Ports submits that the large number of CFMEU claims, and the substantial cost impact of many of the claims, make the claims unrealistic. As a result, the Commission cannot be satisfied that the CFMEU is genuinely trying to reach agreements.
4. The CFMEU’s approach to bargaining precludes a finding that it has been, and is, genuinely trying to reach agreements with Qube Ports.
Qube Ports relied on the history of bargaining provided by Mr Ortiz to argue the CFMEU’s approach is inconsistent with the notion that it is genuinely trying to reach agreements. Qube Ports refers to the CFMEU pursuing national claims that:
· make no attempt to deal with circumstances at the specific ports;
· lack explanation for the claims with reference to specific ports;
· enable Part B claims to subsequently override the Part A claims;
· fail to provide draft clauses; and
· fail to advance agreements capable of being accepted, in support of its argument.
5. Statutory construction point.
Qube Ports argued in closing submissions that the CFMEU cannot establish it is genuinely trying to reach an agreement because a non-greenfields agreement can only be “made” by the relevant employees via a positive vote. There is no direct evidence about the views of employees towards the CFMEU’s claims.
Consideration – genuinely trying to reach agreement
It is clear on the evidence that:
i.Qube Ports commenced bargaining for the Proposed Adelaide Agreement and the Proposed Darwin Agreement on 21 March 2024.[7]
ii.The CFMEU provided its first log of claims for Part A of the Proposed Adelaide Agreement and the Proposed Darwin Agreement (among other agreements) on 4 April 2024.[8]
iii.The CFMEU met with Qube Ports in relation to the Proposed Adelaide Agreement on 23 April 2024 and presented its Part A log of claims.[9]
iv.The CFMEU sought assistance from the Commission via a s.240 bargaining dispute on 25 May 2024 in relation to the Proposed Adelaide Agreement and the Proposed Darwin Agreement (among others).[10]
v.The CFMEU provided Qube Ports with a revised version of its Part A log of claims for the Proposed Adelaide Agreement and the Proposed Darwin Agreement (among others) on 31 May 2024.[11]
vi.The CFMEU met with Qube Ports in relation to the Proposed Darwin Agreement on 12 June 2024 and presented its Part A log of claims.[12]
vii.The CFMEU provided Qube Ports with a further amended log of Part A claims for the Proposed Adelaide Agreement and the Proposed Darwin Agreement (among others) on 21 June 2024. The CFMEU also provided around 24 draft clauses.[13]
viii.The CFMEU provided Qube Ports with a further amended log of Part A claims for the Proposed Adelaide Agreement and the Proposed Darwin Agreement (among others) on 26 June 2024.[14]
ix.The CFMEU provided Qube Ports with a draft log of claims for Part B of the Proposed Adelaide Agreement and the Proposed Darwin Agreement on 1 August 2024.[15]
x.The CFMEU met with Qube Ports on 2 August 2024 to discuss its Part A log of claims for the Proposed Adelaide Agreement (among others) and its log of key Part B claims for the Proposed Adelaide Agreement.[16]
xi.The CFMEU met with Qube Ports on 2 August 2024 to discuss its Part A log of claims for the Proposed Darwin Agreement (among others) and its log of key Part B claims for the Proposed Darwin Agreement.[17]
xii.Mr Ortiz has a sufficient understanding of the CFMEU’s log of claims for the Proposed Adelaide Agreement and the Proposed Darwin Agreement to undertake calculations to determine the cost of the claims.[18]
xiii.Mr Ortiz accepted in cross-examination that the CFMEU remains ready and willing to have meetings to discuss the Proposed Adelaide Agreement and the Proposed Darwin Agreement.
Bargaining for the Proposed Adelaide Agreement and the Proposed Darwin Agreement (among others) commenced more than five months ago. The CFMEU has identified its Part A and Part B claims in relation to both proposed agreements and has attended meetings to discuss its Part A and Part B claims. The CFMEU has made amendments to its log of claims as bargaining has progressed. The CFMEU has sought assistance from the Commission given it and Qube Ports have differing views about how bargaining should progress in relation to the Proposed Adelaide Agreement, the Proposed Darwin Agreements, and the other 17 proposed agreements being negotiated. The CFMEU is seeking to maintain the approach to bargaining that was followed in relation to the current agreements, whereby Part A claims are negotiated nationally first and then Part B claims negotiated at a local level for each port. Qube Ports want to negotiate all terms at the local port level and rejected the CFMEU’s suggestion of a consolidated national agreement. Despite opposition to this approach advanced by Qube Ports the CFMEU has agreed to discuss its Part B claims before its Part A claims have been settled. The CFMEU is not refusing to attend further bargaining meetings despite the disagreement about the format of bargaining. Qube Ports has demonstrated an understanding of the CFMEU’s claims that has allowed it to prepare cost estimates and to reject many claims.
I reject Qube Ports’ first argument that the applications have been made prematurely. Bargaining has been occurring for over five months, the CFMEU has articulated its claims, the CFMEU is attending bargaining meetings, and the CFMEU has sought assistance from the Commission. Little progress has been made. I do not consider the applications can be described as premature in these circumstances.
I reject Qube Ports’ second argument that I should draw an inference that the CFMEU’s true motivation is to seek an intractable bargaining declaration and not to reach agreements with Qube Ports. As I raised during the hearing, I consider the CFMEU’s actions in making these applications are inconsistent with the argument mounted by Qube Ports. The CFMEU’s eagerness to seek the views of its members regarding protected industrial action is consistent with the CFMEU wanting to potentially use industrial action as leverage to reach agreements with Qube Ports. There is also no evidence before me which suggests the CFMEU considers it would likely secure a better outcome for its members via a workplace determination made by the Commission than it may be capable of achieving via ongoing bargaining and the potential taking of industrial action. I am not satisfied on the evidence that the CFMEU has an ulterior motive for the applications.
In relation to Qube Ports’ third argument, I do not have sufficient evidence before me to conclude that the CFMEU’s claims are so unrealistic that it cannot be found to be genuinely trying to reach agreements with Qube Ports. Even if the CFMEU’s claims will dramatically increase employment costs as claimed by Mr Ortiz, I do not have evidence before me to demonstrate the impact of those increased costs on the financial position of Qube Ports. I also do not have evidence before me about other comparable conditions in the industry, which may be relevant when assessing if the claims are realistic. I also have significant doubts that it is appropriate to assess the merits of the claims being pursued by an applicant when deciding whether to make a protected action ballot order. I was not taken to any authorities which suggest this is a matter that should be considered when assessing whether the applicant is genuinely trying to reach agreement. I also consider this type of assessment has the potential to nullify the statutory mandate to determine applications for protected action ballot orders within two working days as far as is practicable. It will be very difficult for the two working days’ time limit to be met if the Commission is required assess how realistic the applicant’s claims are based on the types of evidence referred to above. Qube Ports raised a union seeking salary rates of one million dollars per year as an example of where a claim is so extreme that the Commission could not be satisfied the applicant is genuinely trying to reach agreement. That type of extreme example does not arise for consideration based on the evidence in this case
Qube Ports’ fourth argument relies on the interaction between the CFMEU’s Part A claims, which the CFMEU seeks to negotiate nationally first, and the Part B claims, that the CFMEU seeks to negotiate later at a local level. Mr Smith’s uncontested evidence establishes it is common in the industry for agreements to be negotiated in the manner proposed by the CFMEU and that is precisely what occurred with the 19 current agreements with Qube Ports.[19] Qube Ports’ argument appears to be to the effect that the CFMEU will only be genuinely trying to reach agreement if it agrees to adopt Qube Ports’ proposal of local level negotiations for Part A and Part B at each port. In any event, the CFMEU has articulated its Part A and Part B claims for the Proposed Adelaide Agreement and the Proposed Darwin Agreement. The uncontested evidence from Mr Smith demonstrates Qube Ports has been able to understand the CFMEU’s Part B claims and respond to them, despite the Part A claims not being settled.[20] I reject the argument from Qube Ports that the manner of negotiations precludes a finding that the CFMEU has been, and is, genuinely trying to reach agreements with Qube Ports. To the contrary, I find that the CFMEU is genuinely trying to reach agreements, despite the dispute about how bargaining should be conducted.
I reject Qube Ports’ fifth argument to the effect that direct evidence from employees is required to prove the CFMEU is genuinely trying to reach agreements because an agreement can only be “made” via a positive vote from the employees. The CFMEU is the default bargaining representative for its members and has standing to make this application. I am required to be satisfied that the CFMEU is genuinely trying to reach agreement with Qube Ports. I am not required to consider whether employees are intending to approve a hypothetical agreement in the future. I consider the fact that a non-greenfields agreement cannot be directly “made” by the CFMEU to be irrelevant to my consideration of these applications. I do not consider direct evidence from any employees is required to establish the CFMEU has been, and is, genuinely trying to reach agreements with Qube Ports.
Having considered the authorities identified above and the evidence of Mr Smith and Mr Ortiz, I am comfortably satisfied that the CFMEU has been, and is, genuinely trying to reach agreements with Qube Ports in relation to the Proposed Adelaide Agreement and the Proposed Darwin Agreement. I consider the various steps the CFMEU has taken in the bargaining process as identified above clearly demonstrate that it is genuinely trying to reach agreements with Qube Ports.
My decision in this case is generally consistent with recent decisions from Deputy President Slevin[21] and Deputy President Boyce[22] involving the same industrial parties. Qube Ports accepted the circumstances considered by Deputy President Boyce were generally the same as those before me. Qube Ports argued there were some differences with the application considered by Deputy President Slevin. I have reviewed both decisions and see no reason to arrive at a different conclusion in this case.
Conclusion
I am satisfied that the CFMEU has been, and is, genuinely trying to reach agreements with Qube Ports in relation to the Proposed Adelaide Agreement and the Proposed Darwin Agreement.
I am satisfied that there is a notification time in relation to the proposed agreements and that all other requirements in s.443(1) of the Act have been met.
Based on my findings above, I am required by s.443(1) to make protected action ballot orders in relation to both applications.
The ballots are to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the FW Act[23] and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) and s.448A(2) of the FW Act, I have determined the date by which voting closes for the ballots will be 14 days from the date of the Orders, which is 11 September 2024. This was the date proposed by the CFMEU.
Orders have been separately issued in PR778719 and PR778720.
The matters will be assigned to a Member of the Commission to conduct the s.448A conference and this Member will issue the Orders 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:
Mr Edmonds and Ms Rowe for the CFMEU.
Mr Follett, of Senior Counsel, and Mr Minucci of Counsel, instructed by Ms Hatzisarantinos from Allens on behalf of Qube Ports Pty Ltd.
Hearing details:
2024.
Sydney.
27 August.
[1] Mr Smith’s statements at [12] – Exhibit Adelaide A2 and Exhibit Darwin A2.
[2] Esso Australia Pty Ltd v AMWU, CEPU and AWU [2015] FWCFB 210 (Esso).
[3] JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297.
[4] Ibid at [58].
[5] Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368; (2009) 189 IR 407.
[6] Ibid at [36].
[7] Mr Ortiz’s statement at [14] – Exhibit R2 in both matters.
[8] Mr Ortiz’s statement at [16] – Exhibit R2 in both matters.
[9] Mr Ortiz’s statement at [19] and [20] – Exhibit R2 in both matters.
[10] Mr Smith’s statements at [11] – Exhibit Adelaide A2 and Exhibit Darwin A2.
[11] Mr Ortiz’s statement at [23] – Exhibit R2 in both matters.
[12] Mr Ortiz’s statement at [21] and [22] – Exhibit R2 in both matters.
[13] Mr Ortiz’s statement at [28] – Exhibit R2 in both matters.
[14] Mr Ortiz’s statement at [29] – Exhibit R2 in both matters.
[15] Mr Ortiz’s statement at [33] – Exhibit R2 in both matters.
[16] Mr Ortiz’s statement at [34] and [35] – Exhibit R2 in both matters.
[17] Mr Ortiz’s statement at [37] and [38] – Exhibit R2 in both matters.
[18] Mr Ortiz’s statement at [52](a) – Exhibit R2 in both matters and Mr Ortiz’s evidence in cross-examination.
[19] Mr Smith’s statements at [4] – Exhibit Adelaide A2 and Exhibit Darwin A2, Mr Smith’s supplementary statement at [5] to [10] – Exhibit A3 in both matters.
[20] Attachment WS6 to Mr Smith’s statements – Exhibit Adelaide A2 and Exhibit Darwin A2.
[21] CFMEU v Qube Ports Pty Ltd [2024] FWC 1938.
[22] Applications by CFMEU [2024] FWC 2049.
[23] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
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