Construction, Forestry, Maritime, Mining and Energy Union v Patrick Stevedores Holdings Pty Ltd T/A Patrick Terminals

[2020] FWC 3751

[2020] FWC 3751

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Patrick Stevedores Holdings Pty Ltd T/A Patrick Terminals
(B2020/367)

DEPUTY PRESIDENT BINET PERTH, 20 JULY 2020

Proposed protected action ballot of employees of Patrick Stevedores Holdings Pty Ltd T/A Patrick Terminals.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cwth) (FW Act).

[2] The Application was supported by a statutory declaration from Mr William Tracey the Divisional Deputy National Secretary of the Maritime Union of Australia Division of the CFMMEU (Mr Tracey).

[3] The Application seeks an order for a ballot to be conducted of employees of Patrick Stevedores Holdings Pty Ltd T/A Patrick Terminals (Patrick) employed in support of its operations in Brisbane, Sydney, Melbourne and Fremantle who would be covered by the proposed agreement who are represented by the CFMMEU or who are bargaining representatives for themselves but are members of the CFMMEU (Proposed Agreement).

[4] The Application was the subject of a conference on 20 July 2020 following email advice from Patrick that the Application was opposed (Conference).

[5] Patricks sought permission to be represented by a lawyer at the Conference. The granting of leave to Patricks was not opposed by the CFMMEU.

[6] Having considered the submissions of the CFMMEU and Patricks, leave was granted to Patricks to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[7] In accordance with directions issued to the parties on 16 July 2020 the parties filed outlines of submission, copies of the authorities on which they relied and substantial documentary and written evidence in advance of the Conference.

Background

[8] Patrick Employees are covered by the Patrick Terminals Enterprise Agreement 2016 (Current Agreement), which reached its nominal expiry date on 30 June 2020. The Current Agreement has a two part structure: Part A applies to all four container terminals, while Part B contains terminal-specific schedules which prevail over Part A to the extent of any inconsistency.

[9] Bargaining for a new enterprise agreement began on 19 February 2020 (Proposed Agreement).

[10] On that day the CFMMEU provided Patricks with a log of claims (Original Log of Claims).

[11] Subsequently, Patricks and the CFMMEU held discussions to ascertain whether, as alternative to ‘traditional’ bargaining, they might seek to ‘rollover’ the Current Agreement, with pay increases and changes to address pressing issues for Patrick and the employees and the CFMMEU at each Terminal.

[12] Patrick met with employee representatives at each terminal to ascertain what those issues might be. Patrick say that it became clear that no rollover would occur and therefore withdrew from the rollover discussions.

[13] The parties held another bargaining meeting on 7 July 2020. At this meeting, a range of claims included in the Original Log of Claims were withdrawn by the CFMMEU.

[14] Patrick sought undertakings that those claims would not be made again in bargaining and no industrial action would be taken in support of them. In the course of the Conference the CFMMEU gave various undertakings in relation to the re-agitation of claims.

[15] Further negotiations are scheduled for 22 and 23 July 2020.

Consideration

[16] The FWC is obliged to issue a protected ballot order in the following circumstances:

“443 When the FWC must make a protected action ballot order

a. 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.

b. 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).

c. 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.

d. 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.

e. 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.

[17] Section 437 relevantly provides as follows:

“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 multi-enterprise 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.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) If 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.”

[18] It is not in dispute that the CFMMEU has standing to make the Application in its capacity as a bargaining representative. The notification time in relation to the Proposed Agreement is 31 January 2020. The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement.

[19] The Application specifies the group of employees who are to be balloted.

[20] The CFMMEU have proposed that the Australian Electoral Commission conduct the ballot. In the course of the Conference the parties agreed that the date by which the ballot should close would be 6 weeks from the date that any order is granted to accommodate delays arising from the COVID-19 epidemic.

[21] The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[22] The Application was accompanied by the documents and other information prescribed by the Fair Work Regulations 2009 (Cth).

[23] I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act.

[24] The FWC may only make the order sought if 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.

[25] The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is”, imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.

[26] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union  1 (Esso Case) the Full Bench stated:

“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”  2 (references omitted)

[27] In Total Marine Services Pty Ltd v Maritime Union of Australia  3 a Full Bench of Fair Work Australia relevantly stated:

“[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...”

[28] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.

[29] The CFMMEU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date.

[30] In all of the circumstances I am satisfied that the CFMMEU has been, and is, genuinely trying to reach an agreement with Patricks.

[31] Pursuant to section 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) requires three working days’ notice, or any longer period specified in the order.

[32] Patricks submits that if an order is to be made that the FWC should exercise its discretion to increase the subsection 414(2)(a) notice period of three working days.

[33] Section 443(5) of the FW Act provides that:

“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.”

[34] This requires consideration of  4:

a. whether the circumstances are ‘exceptional’;

b. whether the ‘exceptional circumstances’ justify a requirement of notice longer than the statutory default; and

c. what the period of notice should be up to a maximum of seven days.

[35] The determination of whether the circumstances of a particular case are ‘exceptional’ involves an evaluative judgement of those circumstances. Circumstances may be “exceptional” if they are out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, rare, or unexpected. For this purpose “circumstances” may include a combination of factors which together produce a situation which is out of the ordinary course, unusual, special or uncommon, notwithstanding that none of them taken in isolation would be “exceptional”. 5

[36] Determining whether the “exceptional circumstances” justify a requirement of notice longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power.

[37] Having concluded that particular circumstances are exceptional and that they justify a requirement of a notice period longer than the statutory default a Member must decide whether to exercise their discretion to grant an additional period of notice and determine how long that period should be.  6

[38] Patricks provided evidence in support of its assertion that exceptional circumstances currently exist which justify a requirement for a longer notice period. I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period. In light of the evidence before me I have determined to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to five working days is appropriate in all the circumstances.

[39] Having been satisfied that the requirements of subsections 443(1)(a) and (b) of the FW Act have been complied with, the CFMMEU application is granted and a protected action ballot order shall be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721057>

 1   [2015] FWCFB 210.

 2   Ibid at [57]

 3   [2009] FWAFB 368

 4   National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 at [23]-[25]

 5 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848 at [10]; accepted as a correct statement of the law in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99 at [7]-[8].

 6   National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 at [25]