Construction, Forestry, Maritime, Mining and Energy Union v Huhtamaki Australia Pty Ltd
[2020] FWC 4453
•24 AUGUST 2020
| [2020] FWC 4453 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry, Maritime, Mining and Energy Union
v
Huhtamaki Australia Pty Ltd
(B2020/438)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 24 AUGUST 2020 |
Proposed protected action ballot of employees of Huhtamaki Australia Pty Ltd – whether application made prematurely – whether applicant has been, and is, genuinely trying to reach an agreement.
[1] On 13 August 2020, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an application for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (Act).
[2] I have determined that the statutory criteria are met and therefore the Commission must make an order pursuant to s.443 of the Act. The reasons for this decision follow.
Context
[3] The application concerned a proposed ballot of employees of Huhtamaki Australia Pty Ltd (Huhtamaki). The employees in question are those who would be covered by the proposed enterprise agreement that is intended to replace the Huhtamaki Australia Pty Ltd, Moulded Fibre Division, Preston Plant, Enterprise Agreement, 2017 (the Proposed Agreement) and for whom the CFMMEU is a bargaining representative. 1
[4] Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a PABO within two working days after the application is made. The matter was allocated to my chambers on 19 August 2020 and was listed for mention that day, to discuss the nature of Huhtamaki’s objection and to timetable the matter. Having sought the parties’ views, I listed the matter for hearing at 3.30pm on Friday, 21 August 2020.
[5] Mr Paris Nicholls, National Industrial Officer of the Manufacturing Division of the CFMMEU appeared for the union at the hearing and Ms Denise Campbell-Burns, Pulp & Paper Workers District Secretary of the Manufacturing Division of the CFMMEU provided a witness statement on its behalf. Mr Ian Dixon, Principal Consultant of Australian Industry Group appeared for Huhtamaki and Mr Alexander Morelli, Operations Manager of Huhtamaki provided a witness statement on the company’s behalf. There were no objections to the witness statements and neither witness was required for cross-examination.
Statutory framework
[6] Section 437 of the Act enables a bargaining representative to apply for a PABO. Subject to the restrictions in s.437(2A) and s.438(1) (which are not presently relevant), the Commission must make a PABO in relation to a proposed enterprise agreement in the circumstances set out in s.443. Section 443 relevantly provides:
“443 When the FWC must make a protected action ballot order
(1) [When FWC must make a protected action ballot order]
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) [When FWC must not make a protected action ballot order]
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) [Content of protected action ballot order]
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) [Ballot to be conducted expeditiously]
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.
…”
[7] Whether an applicant “has been, and is, genuinely trying to reach an agreement” within the meaning of s.443(1)(b) is a question of fact to be decided by reference to all of the circumstances of the bargaining in question. 2 It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.3 There are two temporal components to s.443(1)(b): the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement.
[8] In Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia, 4 the Full Bench adopted and referred to the majority in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia.5 The relevant passages are as follows:
“[87] In J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia Lawler VP and Bissett C gave consideration to evidentiary issues relevant to the question of genuinely trying to reach agreement within the meaning of s.443(1)(b). Lawler VP and Bissett C said:
…
[63]In circumstances where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act a finding that the applicant was not “genuinely trying to reach an [enterprise] agreement” within the meaning of s. 443(1)(b) will necessarily involve accepting evidence establishing that the applicant had some other, extraneous purpose in seeking the ballot. Indeed, when there is evidence from an applicant for a protected action ballot order that they have been and are “genuinely trying to reach an [enterprise] agreement” under the FW Act, it is difficult to conceive of circumstances where it could properly be found they were not, unless there is cross-examination or other evidence establishing that the applicant in truth has some other, extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act…
[88] The observations of the majority in J.J. Richards reproduced above should not be taken as meaning any more than in the usual course of events when an applicant leads relevant evidence on the question whether it is generally trying to reach an agreement, prima facie, that will be sufficient to establish that fact…
[89] The majority in J.J. Richards also said:
[58]The expression “genuinely trying” in s.443(1)(b) is, clearly enough, concerned with the genuineness of the “trying”, the efforts, to reach the stated goal, namely an enterprise agreement that meets the requirements of the FW Act. It is directed at the authenticity of the applicant’s efforts to reach that goal. The genuineness or authenticity of an applicant’s efforts to reach that goal will turn on its motivation - the intention, object or purpose.”
Evidence and submissions
[9] The background to the application is set out in the statutory declaration of Ms Campbell-Burns that accompanied the filing of the application and Ms Campbell-Burns’ further witness statement of 21 August 2020.
[10] On 25 February 2020, Huhtamaki agreed to bargain for the Proposed Agreement.
[11] Ms Campbell-Burns is a bargaining representative for CFMMEU members who would be covered by the Proposed Agreement and has participated in all negotiation meetings to date. Mr Morelli is part of the company’s negotiation team.
[12] On 13 May 2020, a bargaining meeting was held between Huhtamaki and the CFMMEU. Also on 13 May 2020, the CFMMEU served a log of claims on Huhtamaki (marked as “draft”). Ms Campbell-Burns gave evidence that the log of claims was developed by surveying members at Huhtamaki and then having the list of claims endorsed by those members on 29 April, 30 April and 1 May 2020. The CFMMEU’s log of claims was comprised of 14 terms or matters that it sought to be included in the Proposed Agreement. It contained some typographical errors and an action arising from this meeting was for the CFMMEU to provide a “clean” version of its log to the company, which it did on 18 May 2020.
[13] Further bargaining meetings were held between Huhtamaki and the CFMMEU on 25 May, 16 June and 15 July 2020.
[14] On 20 and 23 July 2020, Ms Campbell-Burns met with CFMMEU members across all five shifts and day work, to provide an update on the negotiations, explain proposals made and seek endorsement to proceed with a PABO application. Ms Campbell-Burns’ evidence was that “the membership endorsed this action unanimously” and that she instructed this PABO application to be filed so that members “may press their outstanding claims and reach agreement with Huhtamaki on the terms of the Proposed EBA”. 6
[15] At approximately 11.30am on 13 August 2020, the CFMMEU caused this application for a PABO to be filed with the Commission. At the time of filing, Ms Campbell-Burns declared that the parties had been unable to reach agreement on a number of matters, including the following issues:
• The amount of any wage increases;
• The terms and conditions of redundancy;
• Hours of work; and
• The New Year shut down period.
[16] At 3.00pm on 13 August 2020, a further bargaining meeting was held between Huhtamaki and the CFMMEU. In her further witness statement, Ms Campbell-Burns said that during this bargaining meeting the company responded to the CFMMEU’s proposal with a counteroffer. She said the company also noted that it had not read the CFMMEU’s draft clauses (provided in the previous bargaining meeting) and would respond to those at the next meeting. At the conclusion of this meeting, a further bargaining meeting was scheduled for 25 August 2020.
[17] In her further witness statement in support of this PABO application Ms Campbell-Burns said that, during the course of the bargaining meetings, the CFMMEU has provided proposed clause wording for Huhtamaki’s consideration and feedback and changed its bargaining position (including reductions in its claims for wage increases and redundancy payments). And, after filing this PABO application on 13 August 2020:
• On 15 August 2020, Ms Campbell-Burns had notified the company of her intention to meet with members on 19 and 21 August 2020 to present the company’s offer and discuss their feedback;
• On 19 August 2020, Ms Campbell-Burns had met with members across three shifts and day work; and
• At the time of filing her further witness statement on 21 August 2020, Ms Campbell-Burns had two additional meetings with members scheduled for 21 August 2020.
[18] Ms Campbell-Burns’ evidence was that “broad agreement” had been reached on seven of the CFMMEU’s fourteen claims and five of the company’s eight claims, and the remainder of the respective claims “remain in negotiation”. 7
[19] Huhtamaki objects to this application for a PABO on the basis that it was made prematurely and the CFMMEU has not met the requirement at s.443(1)(b) of the Act. Specifically, it contends that at the time of making this PABO application: the CFMMEU knew the company was going to make an offer at a bargaining meeting; had not disclosed the company’s offer to its members for consideration; had not responded in detail to the company’s offer; and the nature of its conduct “denied opportunity for a meeting of the minds” between the company and its employees to genuinely try to reach an agreement. 8
[20] In support of Huhtamaki’s objection, Mr Morelli gave evidence that he received email notification of this PABO application at 2.17pm on 13 August 2020. Mr Morelli said that the CFMMEU was previously aware (based on discussions in previous bargaining meetings) that the company intended to make an offer in the bargaining meeting commencing at 3.00pm that day. He said this meeting took place, at the CFMMEU’s request, on 13 August not 11 or 12 August 2020 as the company had proposed. According to Mr Morelli, of the four matters Ms Campbell-Burns described as not agreed in her 13 August 2020 statutory declaration, the company’s offer made that same day had resolved two items and included proposals to address the remaining two items. He also said the company had requested clarification of certain claims on 25 May 2020, and the CFMMEU had provided some but not full clarification in the bargaining meetings held in June and July 2020.
[21] At the time of the hearing at 3.30pm on Friday 21 August 2020, a further bargaining meeting was scheduled for Tuesday 25 August 2020.
Genuinely trying to reach agreement
[22] Before a PABO can be issued, the Commission must be satisfied that the CFMMEU has been, and is, genuinely trying to reach agreement with Huhtamaki. I have considered the company’s objection to the application. In my view, for the reasons below, the matters raised by Huhtamaki do not impinge upon the upon the genuineness of the CFMMEU’s efforts to reach agreement with Huhtamaki.
[23] It was not factually contentious, and I accept, that there have been five bargaining meetings since the parties agreed to bargain on 25 February 2020 (on 13 May, 25 May, 16 June, 15 July and 13 August 2020).
[24] It is clear from Ms Campbell-Burns’ evidence, and that of Mr Morelli, that progress has been made in bargaining. The CFMMEU has served a log of claims, provided responses and proposed draft clauses for inclusion in the Proposed Agreement. Concessions and counter proposals have been made. Ms Campbell-Burns’ evidence about broad agreement on a number of claims being reached was not disputed. I accept that the parties have reached broad or in-principle agreement in respect of some claims (proposed by the CFMMEU and by the company) and are respectively providing responses in respect of others.
[25] That this PABO application was filed on the morning of an anticipated offer from the company may be subject of some legitimate criticism. However, the evidence is that this PABO application was directed at advancing the CFMMEU members’ claims. That evidence was not sought to be challenged by cross examination and there is no evidence that the applicant in truth has some other, extraneous intention or is seeking something other than an enterprise agreement under the Act. Indeed, I find the evidence demonstrates the contrary.
[26] At the time of filing, the CFMMEU did not yet have the company’s 13 August 2020 offer to put to its members for consideration. The evidence establishes that the CFMMEU has subsequently engaged with its members about the offer. After the company’s offer was delivered on the afternoon of 13 August 2020 it was agreed that the next bargaining meeting would take place on 25 August 2020. It is apparent that those further discussions are an opportunity to discuss the company’s offer, including the response on behalf of employees represented by the CFMMEU, and may well advance an agreement being reached.
[27] To the extent that Huhtamaki contends that this application is premature, it is not necessary to show that negotiations for the Proposed Agreement or an item of the Proposed Agreement have been exhausted before a PABO is made or that such action is a matter of last resort. 9 The central question is whether the CFMMEU has demonstrated that it has been, and is, genuinely trying to reach agreement with the employer of the employees whom it proposes to ballot.
Conclusion
[28] Section 443(1) states that the Commission ‘must’ make a protected action ballot order in relation to a proposed enterprise agreement if an application has been made under s.437 and the Commission is satisfied that the applicant “has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted”.
[29] Having regard to all of the circumstances of the bargaining, I am satisfied that the CFMMEU, the applicant, has been, and is, genuinely trying to reach agreement with Huhtamaki.
[30] I am satisfied that an application has been made pursuant to s.437 of the Act and that the restrictions on the making of an application under section 437(2A) and 438(1) are not applicable in the circumstances of this application. The other statutory criteria for the granting of a PABO in the application have been met.
[31] Pursuant to s.443(1) of the Act, a protected action ballot order is issued in PR722057.
[32] For completeness, it is noted that the views of the parties were sought and there was no opposition to the extension of the date by which voting in the Australian Electoral Commission conducted ballot is to close (to a date that is no later than 30 working days) given the circumstances presented by the COVID-19 pandemic.
DEPUTY PRESIDENT
Appearances:
Mr P. Nicholls for the Applicant
Mr I. Dixon of the Australian Industry Group for the Respondent
Hearing details:
2020
Melbourne (by video)
21 August.
Printed by authority of the Commonwealth Government Printer
<PR722066>
1 Email from Applicant to the Commission dated 13 August 2020.
2 Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union at [2015] FWCFB 210 at [57].
3 Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 at [32]; (2009) 189 IR 407 at [32]; National Union of Workers (NUW), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Sakata Rice Snacks Australia Pty Ltd[2016] FWC 6262 at [25].
4 [2014] FWCFB 1317.
5 [2010] FWAFB 9963.
6 Further Witness Statement of Denise Campbell-Burns dated 21 August 2020 at paragraph 12.
7 Further Witness Statement of Denise Campbell-Burns dated 21 August 2020 at paragraph 18.
8 Outline of Submissions filed on behalf of Huhtamaki, dated 20 August 2020 at paragraphs 23-24.
9 CEPU and AMWU v Kraft Foods Ltd (2010) 197 IR 12 at [40].
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