Construction, Forestry, Maritime, Mining and Energy Union v Avopiling Management (NSW) Pty Ltd
[2022] FWC 855
| [2022] FWC 855 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry, Maritime, Mining and Energy Union
v
Avopiling Management (NSW) Pty Ltd
(B2022/265)
| COMMISSIONER MATHESON | SYDNEY, 13 APRIL 2022 |
Proposed protected action ballot of employees of Avopiling Management (NSW) Pty Ltd.
The Construction, Forestry, Mining and Maritime Union (CFMMEU or Applicant) has made an application under s. 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to employees of Avopiling Management (NSW) Pty Ltd (Respondent) who are members of the Construction, Forestry, Maritime, Mining and Energy Union and who would be covered by the proposed enterprise agreement (Employees).
Both the Applicant and Respondent filed submissions and participated in a hearing on 12 April 2022. Ms Leah Charlson appeared for the CFMMEU at the hearing. Mr Bas Baskaran and Mr Jay Harper appeared at the hearing for the Respondent and Mr Harper also gave evidence for the Respondent.
I have read and considered the material filed by the parties, together with the evidence provided and oral submissions made at the hearing.
Orders sought
The CFMMEU has applied for orders to be made in the following terms
“1. PROTECTED ACTION BALLOT TO BE HELD
The Construction, Forestry, Maritime, Mining and Energy Union is to hold a protected action ballot of employees of Avopiling Management (NSW) Pty Ltd.
2. NAME OF PERSON AUTHORISED TO CONDUCT THE BALLOT
The ballot is to be conducted by Australian Electoral Commission.
3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED
Those employees of Avopiling Management (NSW) Pty Ltd who are members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) who would be subject to the proposed enterprise agreement and for whom the CFMMEU is the bargaining representative, except an employee who is bound by an individual agreement based transitional instrument that has not passed its nominal expiry date on the day this ballot order is made, unless such an employee has made a conditional termination of that instrument.
4. DATE VOTING CLOSES
No later than 30 working days from the date of the order
5. QUESTIONS
In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by CFMMEU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the actions set out below:
1.An unlimited number of stoppages on the performance of work between 30 minutes and up to and including 24 hours? Yes/No
2.An unlimited number of indefinite strikes? Yes/No
3.An unlimited number of indefinite or periodic bans on overtime? Yes/No
4.An unlimited number of indefinite or periodic partial work bans? Yes/No”
Legislation
Section 437 of the Act provides that:
A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
….
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed agreement.
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
Section 176(1)(b) of the Act provides that for enterprise agreements that are not greenfields agreements, an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation – the organisation applied for the authorisation;
unless the employee has appointed another person under s.176(1)(c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under s.178A(2) of the Act.
Section 443 of the Act governs when the Commission must make a protected action ballot order, providing as follows:
“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).
(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.
(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.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(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, 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.”
Issues in dispute
By way of summary, the Respondent opposes the application on the following grounds:
(a) the CFMMEU is not a bargaining representative of the employees who would be covered by the proposed enterprise agreement. At no time has there been any confirmation by an employee who will be covered by the agreement that they nominate the CFMMEU as their bargaining representative. None of the employees who will be covered by the proposed agreement and who received a notice of employee representational rights nominated the CFMMEU as his or her bargaining representative;
(b)the CFMMEU is not a party to the existing enterprise agreement;
(c)the Respondent has been negotiating with employee representatives in good faith and believes it is close to reaching an agreement with its employees;
(d) the Respondent has had further discussions with the CFMMEU since the making of the application and believes that the parties are close to reaching an agreement and that there is no need for protected action.
The Respondent also submits that should the application be approved, that the dates, times and notice periods for the proposed action be specified and employees are advised in the questions that any strike action is unpaid (except in the case of reduced overtime).
The Applicant submits that it is an employee organisation which has members who will be covered by the proposed agreement and who have not appointed another person as their bargaining representative or revoked the status of the CFMMEU as their bargaining representatives in accordance with s.176 of the Act.
The Applicant submits:
· that it may well be correct, as asserted by the Respondent that “…none of the employees, who will be covered under the proposed EBA and had received notice of representational rights, nominated CFMMEU as his/her bargaining representative…” however even if this statement is correct, it does not assist the Respondent;
· in accordance with s.176 of the Act, the CFMMEU remains a bargaining representative for any of its members covered by the proposed agreement unless every one of these members has appointed another person as his or her bargaining representative for the agreement, or has revoked the status of the CFMMEU as his or her bargaining representative for the agreement.
Consideration
Is the CFMMEU a bargaining representative?
On 7 April 2022, for the purposes of enabling the Commission to determine whether the CFMMEU is a bargaining representative for the proposed agreement, the CFMMEU sent the Commission a list of its members employed by the Respondent who will be covered by the proposed agreement. Confidentiality orders requiring that this list shall not be published, made available for inspection or disclosed were made by the Commission on 8 April 2022.
The Respondent provided a list of its employees who will be covered by the proposed agreement together with the instruments of appointment in relation to bargaining representatives appointed by its employees. Confidentiality orders requiring that these documents shall not be published, made available for inspection or disclosed were made by the Commission on 13 April 2022.
I have conducted analysis of the CFMMEU’s list of members, the Respondent’s list of employees covered by the proposed agreement and the instruments of appointment of bargaining representatives. It is apparent to me from the materials before the Commission that not all CFMMEU members have appointed another person as their bargaining representative for the agreement or revoked the status of the CFMMEU as the bargaining representative for the agreement.
As such, I find that the CFMMEU is a bargaining representative of an employee who will be covered by the agreement pursuant to s.176(1)(b) of the Act.
Is there a notification time in relation to the proposed agreement?
The Respondent advised the Commission via email on 5 April 2022 that the notification time for the agreement is 1 June 2021. While this is different to the date identified by the Applicant, being “on or about 21 February 2020”, it is not in dispute and I am satisfied that there has been a notification time in relation to the proposed enterprise agreement.
Matters to be specified in the application
The application made by the CFMMEU specifies:
(a) the group or groups of employees who are to be balloted;
(b) the questions to be put to employees who are to be balloted, including the nature of the proposed industrial action.
Has the CFMMEU been, and is it, genuinely trying to reach an agreement with the employer of the employees who are to be balloted?
In order to make the order I must be satisfied that the CFMMEU has been, and is, genuinely trying to reach an agreement with the Respondent as the employer of the employees who are to be balloted.
In Total Marine Services Pty Ltd v Maritime Union of Australia[1], the Full Bench considered this requirement and said:
“[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.”
In Esso Australia Pty Ltd v AMWU & Ors[2] the Full Bench made the following observations about the paragraphs of the Full Bench decision in Total Marine Services Pty Ltd v Maritime Union of Australia referenced above:
“[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).”
Deputy President Saunders recently considered these authorities in the matter of Australian Rail, Tram and Bus Industry Union v Rail Shuttle Services Pty Ltd T/A Railtrain[3], finding as follows:
“[13] In light of these authorities, I will proceed on the basis that whether an applicant “has been, and is, genuinely trying to reach an agreement” is a question of fact to be decided having regard to all of the facts and circumstances of the particular case.[4] No one factor is necessarily determinative of the question of whether an applicant is, or has been, genuinely trying to reach an agreement.[5] No alternative test or criteria to the words of s 443(1)(b) should be applied[6]…”
The Deputy President also relied on AMWU v HJ Heinz Company Australia Ltd[7] in finding that no specific stage must be reached in the negotiations in order for there to be a finding that an applicant is, and has been, genuinely trying to reach an agreement with the employer.
I have applied these principles in the consideration of the circumstances of the application which is the subject of this decision.
The Applicant has submitted that there have been a number of bargaining meetings and various communications over many months, including exchanges of draft enterprise agreements and provided evidence of this. The Applicant also provided the following chronology:
(a)From about 21 February 2020 to 15 June 2021, there were a number of meetings held involving the CFMMEU and the Respondent seeking to reach agreement on an acceptable draft enterprise agreement, and exchanges in writing in respect of a draft document. No agreement was reached.
(b)On 6 July 2021, the Respondent sent the applicant a draft enterprise agreement.
(c)On 12 August 2021, the CFMMEU emailed the Respondent, seeking to organise a meeting with the Respondent in respect of the proposed enterprise agreement.
(d)During October 2021 and early November 2021, the CFMMEU undertook consultation with the relevant employees about the proposed enterprise agreement.
(e)On 4 November 2021, the CFMMEU sent the Respondent a log of claims.
(f)On 25 November 2021, representatives of the CFMMEU and the Respondent met by Zoom to further discuss the parties’ respective positions on the enterprise agreement. The issues left unresolved at that time were the rates of pay and conditions.
(g)On 29 November 2021, the CFMMEU sent the Respondent an updated draft enterprise agreement.
(h)On 2 December 2021, the Respondent sent the CFMMEU a table containing proposed rates of pay.
(i)On 10 December 2021, the CFMMEU sent the Respondent a response to the respondent’s proposed pay rates.
(j)On 13 December 2021, emails were exchanged between the CFMMEU and the respondent, by which agreement was reached on some but not all of the outstanding claims.
(k)In December 2021 and January 2022, the CFMMEU sought a response from the respondent in relation to the employees’ position on the outstanding issue, which was the timing of the future pay increases.
(l)On 12 January 2021, the respondent sent an email to the applicant stating that its position was unchanged
(m)There have been further discussions between the CFMMEU and the respondent between January 2022 and the present, and the respondent has now agreed to the rate of pay sought by the CFMMEU for the FW3 classification. There remains one outstanding issue between the CFMMEU and the respondent, which is the timing of the future pay increases.
The Respondent did not contest this and Mr Harper’s evidence during the hearing on 12 April 2022 did not dispute that bargaining in good faith had proceeded over the course of several months, however, Mr Harper noted that as at the time of the application, the parties appeared to have reached a stalemate in respect of a narrow issue.
Based on the materials before the Commission and the circumstances of the particular negotiations relevant to this matter, I am satisfied that the CFMMEU has been and is genuinely trying to reach agreement.
Conclusion
I am satisfied that the CFMMEU has made an application under s 437 for a protected action ballot order.
I am also satisfied that the other statutory requirements for a protected action ballot order have been met. It follows that a protected action ballot order must be made pursuant to s 443(1) of the Act.
The order [PR740332] will be issued concurrently with this decision.
COMMISSIONER
Appearances:
Ms L Charlson on behalf of the Applicant.
Mr B Baskaran and Mr J Harper on behalf of the Respondent.
Hearing details:
2022.
Sydney, (By Video using Microsoft Teams).
April 12.
[1] [2009] FWAFB 368.
[2] [2015] FWCFB 210.
[3] [2022] FWC 814.
[4] Esso Australia Pty Ltd v AMWU & Ors [2015] FWCFB 210 at [57] & [69].
[5] Esso Australia Pty Ltd v AMWU & Ors [2015] FWCFB 210 at [55].
[6] Esso Australia Pty Ltd v AMWU & Ors [2015] FWCFB 210 at [35].
[7] [2009]FWC 322 at [20].
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