Construction, Forestry, Maritime, Mining and Energy Union v MSS Security
[2023] FWC 1905
•1 AUGUST 2023
| [2023] FWC 1905 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Maritime, Mining and Energy Union
v
MSS Security
(B2023/761)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 1 AUGUST 2023 |
Proposed protected action ballot of employees of MSS Security
This is an application by the Construction, Forestry, Maritime, Mining and Energy Union trading as the Maritime Union of Australia (MUA) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of MSS Security Pty Ltd (MSS Security).
On 28 July 2023, MSS Security advised the Commission that it objected to the application and filed submissions in support of the objection.
On 28 July 2023, I listed the matter for hearing on 31 July 2023 and directed the parties to file any further materials they wished to rely upon two hours before the commencement of the hearing.
On 29 July 2023, the MUA filed an Outline of Submissions and a Statement of Mr Joel O’Brien, MUA North West Regional Organiser dated 29 July 2023. The Respondent did not file any further material.
Mr O’Brien gave evidence at the hearing on behalf of the MUA. The Respondent did not give evidence but made a number of assertions about factual matters in its written submissions.
Background
The history of bargaining between the parties is largely uncontested. MSS Security is contracted by the Pilbara Port Authority to provide a security presence on the wharves of the Pilbara Port Authority Sites in Western Australia. To deliver these services, MSS Security employs maritime security officers to work specifically at that site, of which, a majority are members of the MUA.[1]
On or about 7 January 2022, Mr O’Brien held discussions with employees of MSS Security about moving the regulation of their wages and conditions from the relevant modern award to an enterprise agreement. Employees were supportive of this idea, so Mr O’Brien raised it with MSS Security who rejected the proposal.[2]
Consequently, the MUA made application to the Commission for a majority support determination. On 9 September 2022, Commissioner Williams made a determination that a majority of employees of MSS Security engaged in security operations at the Pilbara Port Authority want to bargain for a single enterprise agreement.[3] On 21 September 2022, MSS Security issued a Notice of Employee Representational Rights.[4]
On 31 October 2022, Mr O’Brien met with MSS Security representatives to commence negotiations for an enterprise agreement. At this meeting Mr O’Brien tabled the MUA’s log of claims.[5]
On 21 November 2022, the second bargaining meeting took place. The parties discussed the MUA’s log of claims and agreed on the scope of the Agreement however no other claims were agreed to. At this meeting it was agreed that the next bargaining meeting would be held on 12 December 2022.[6] On or around 12 December 2022, MSS Security cancelled this meeting and proposed that the next meeting would be held on 9 January 2023.[7] On 9 January 2023, the third bargaining meeting took place and MSS Security tabled several claims. MSS Security agreed in part to the MUA’s claim pertaining to fitness for work and that it would be in line with their client’s requirements. Other than this, MSS Security did not agree to any of the other MUA claims.[8]
Further bargaining meetings took place on 30 January, 27 February, 5 May, 26 May, 14 June, 3 July, 17 July and 28 July 2023. Bargaining meetings were also scheduled for 13 March and 4 April 2023, but these were cancelled by MSS Security.[9]
On 9 June 2023, MSS Security sent a wage proposal to the MUA.[10] On 30 June 2023, MSS Security sent a draft agreement the MUA to be discussed at the next bargaining meeting.[11]
According to MSS Security’s submissions, on 17 July 2023 the MUA sent MSS Security a draft enterprise agreement which included a counter offer in relation to wages, all of the claims in the MUA’s log of claims and several proposed clauses in relation to consultation, dispute resolution, redundancy and disciplinary matters.
MSS Security claims that Mr O'Brien conceded that the clauses he referred to in the meeting held on 17 July 2023 are "MUA model terms" that it uses with other employers, and therefore alleged the MUA is engaging in pattern bargaining. MSS Security was surprised that the MUA was continuing to press all of the matters in its log of claims because Mr O’Brien had offered in January 2023 to drop a number of claims if MSS Security agreed to the MUA’s wage claim.[12] Mr O’Brien denies that there was any agreement to drop MUA claims and that the MUA is engaging in pattern bargaining.[13]
On 28 July 2023, MSS Security made an improved wages offer to the MUA.[14]
Submissions
The MUA submits that on the basis on the evidence provided by Mr O’Brien, the FWC can be satisfied that the Applicant has properly brought the application pursuant to s.437 of the FW Act, and that the Applicant has been and is genuinely trying to reach agreement.
MSS Security submits that the MUA’s actions in continuing to pursue its original log of claims on 17 July 2023 without any claims being dropped shows that, particularly recently, the MUA is not genuinely trying to reach an agreement with MSS Security. MSS Security also submits that in pursuing “MUA model terms”, the MUA is engaging in pattern bargaining within the meaning of s.412 of the FW Act and that this should be taken into account in the Commission’s consideration of this matter.
MSS Security further submits that negotiations are not at an impasse and progress continues to be made as recently as 28 July 2023 when the parties met and an improved wage proposal was provided by MSS Security. The Respondent further states that in consideration of the negotiations progressing, the parties would benefit from continuing negotiations and clearly all parties have intentions of continuing to do so and reaching agreement.
Finally, MSS Security requested that the Commission exclude questions 11, 12 and 13 from the ballot questions, in the event the application is granted, as the industrial action covered by these questions would expose risk of unauthorised access or failure to perform tasks that are subject of Maritime Transport and Offshore Facilities Security Act 2003 (Cth) or the Regulations and consequently, expose the Pilbara Port Authority to breaches and regulatory action.
Consideration
Section 437 of the FW Act provides,
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) 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.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a cooperative workplace agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(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; and
(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
Section 440 of the FW Act provides,
440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to:
(a) the employer of the employees who are to be balloted; and
(b) the person or entity that the application specifies as being the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
There is no dispute between the parties and so I find based on the Declaration in support of an application for a protected ballot order by Joel O’Brien dated 24 July 2023 that the requirements of section 437 have been met and that the Applicant has complied with s. 440.
Section 443 of the FW Act 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).
(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.
The matter which is in dispute between the parties is whether the the FWC can be satisfied, as required by s.443(1)(b), that the MUA has been, and is, genuinely trying to reach an agreement with MSS Security.
In Total Marine Services Pty Ltd v Maritime Union of Australia,[15] 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.
….
In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Ors,[16] the Full Bench reviewed the authorities in relation to s.443(1)(b) and made the following observations:
[57] 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. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad) (citations omitted)
The uncontested evidence of Mr O’Brien on behalf of the MUA is that he has attended eleven bargaining meetings with MSS Security over a nine-month period. The MUA and MSS Security each presented logs of claim early in bargaining. The parties have agreed on the scope of the proposed enterprise agreement and exchanged wage offers. Despite being given the opportunity to do so, MSS Security has not filed any evidence in the proceedings and has not otherwise alleged that Mr O’Brien on behalf of the MUA has done anything other than participate meaningfully in the negotiations, explain and provide information about the MUA’s claims and genuinely consider MSS Security’s claims.
There are two bases upon which MSS Security alleges that the MUA has not been, and is not, genuinely trying to reach an agreement with MSS Security. Firstly, the MUA is continuing to press all of the matters in its log of claims after offering to drop a number of claims if MSS Security agreed to the MUA’s wage claim. Secondly, the MUA is engaging in pattern bargaining in seeking MUA model clauses. I reject both of these contentions.
The contentions are premised on allegations that are not supported by any evidence provided by MSS Security and are denied by Mr O’Brien, who I find to be an honest and credible witness. In addition, even if Mr O’Brien had made an offer to drop some claims if MSS Security agreed to the MUA’s wage claim, the offer is alleged to have been made in January 2023, five months before the first wage offer was made by MSS Security. Further, according to MSS Security’s version of events, this first offer and the most recent wage offer made on 28 July 2023 do not meet the MUA’s wage claim so the expectation by MSS Security that MUA would drop claims is without any reasonable foundation.
In any event, the events at the meeting on 17 July 2023 which caused MSS Security concern appear to have been overtaken by a more positive meeting between the parties on 28 July 2023. MSS Security’s submissions about this most recent meeting are that negotiations are not at an impasse, progress continues to be made, that the parties would benefit from continuing negotiations and that all parties have intentions of continuing to do so and reaching agreement. These submissions indicate that the MSS Security accepts that MUA was genuinely trying to reach agreement at the meeting with MSS Security.
In relation to the request by MSS Security that I exclude certain ballot questions, this is not a matter which appears to be open for me to determine with respect to the application before me and does not appear to be a relevant consideration under s.443. In those circumstances, I do not propose to make any changes to the ballot questions.
On the basis of the material before me, including Mr O’Brien’s evidence which sets out the steps taken by the MUA in bargaining with MSS Security, I am satisfied that that the MUA has been, and is, genuinely trying to reach agreement with MSS Security, that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s.468A of the Act[17] and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of fourteen (14) calendar days from the date of the Order (15 August 2023) has been approved by the Commission.
An order has been separately issued in PR764813.
A further listing will be sent out from my Chambers scheduling a s.448A conference. I will issue the Order requiring attendance at the conference and directions to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
[1] Statement of Joel O’Brien dated 29 July 2023, 5
[2] Ibid, 6.
[3] Construction, Forestry, Maritime, Mining and Energy Union – The Maritime Union of Australia Division [2022] FWC 2326
[4] Form F34B – Declaration in support of an application for a protected ballot order by Joel O’Brien, 1.6
[5] Ibid, 2.1, 2
[6] Ibid, 2.1, 3
[7] Ibid, 2.1, 4
[8] Ibid, 2.1, 5.
[9] Ibid, 2.1, 6-10, 12, 14-15; Application for Protected Action Ballot – Respondent's Objections, 4.
[10] Ibid, 2.1, 11; Application for Protected Action Ballot – Respondent's Objections, 2.
[11] Ibid, 2.1, 13; Application for Protected Action Ballot – Respondent's Objections, 2.
[12] Application for Protected Action Ballot – Respondent's Objections, 1-3.
[13] Statement of Joel O’Brien dated 29 July 2023, 9a-b.
[14] Ibid, 4.
[15] [2009] FWAFB 368; (2009) 189 IR 407
[16] [2015] FWCFB 210
[17] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400
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