Construction, Forestry, Mining and Energy Union v Monadelphous Engineering Associates Pty Ltd

[2012] FWA 2808

Note: An appeal pursuant to s.604 (C2012/3527) was lodged against this decision.

[2012] FWA 2808

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Monadelphous Engineering Associates Pty Ltd
(B2012/66)

COMMISSIONER BOOTH BRISBANE, 3 APRIL 2012

Proposed protected action ballot by employees of Monadelphous Engineering Pty Ltd - Central Queensland.

[1] This decision relates to an application by the Construction Forestry Mining Energy Union (CFMEU) filed on 27 March 2012 for a protected ballot action order under section 437 of the Fair Work Act 2009 (the Act) for employees of Monadelphous Engineering Proprietary Limited (the Employer) who are presently covered by the Monadelphous Engineering Proprietary Limited Central Queensland Operations Agreement 2009-2012.

[2] The Employer objects to the making of the order.

[3] At the hearing on 30 March 2012, Mr Green and Mr O'Brien appeared on behalf of the CFMEU, Mr Brajevic appeared on behalf of the Employer. Mr Broanda of the Australian Workers Union (AWU) sought and was granted leave to appear.

[4] Sections 437 and 433 of the Act set out the statutory requirements for the order sought.

“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 FWA for an order (a protected action ballotorder) 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.

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.”

“443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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.”

[5] A protected action ballot order must be issued by Fair Work Australia (the Tribunal) if the procedural requirements are met and the Tribunal is satisfied that the CFMEU has been, and is, genuinely trying to reach agreement with the employer of the employees to be balloted in relation to a proposed enterprise agreement.

[6] The onus is on the applicant, the CFMEU, to establish on the evidence before the Tribunal that having satisfied the procedural requirements it has been and is genuinely trying to reach agreement.

Background and relevant facts

[7] As noted in the application, on 22 March 2012 two other employee organisations, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 1 and the AWU2 made application for and were granted protection action ballot orders in relation to the same proposed agreement. The original application and draft orders in this matter are in same terms as those granted on 22 March 2012, although some changes were proposed at the hearing of the matter.

[8] The Employer objected to the orders sought on two grounds. First, it submits the CFMEU can only represent one of the three named employees, a crane driver, Mr Tame, because the other two employees do work that is not covered by the CFMEU callings.

[9] Second, the Employer submits that the applicant has not been genuinely trying to reach agreement with the respondent.

Is the CFMEU genuinely trying to reach agreement with the employer?

[10] The CFMEU submits that it has been genuinely trying to reach agreement with the Employer of the employees to be balloted. The CFMEU evidence and submissions are as follows:

• The CFMEU organiser, Mr Loakes telephoned the Respondent about 1 March 2012 as soon as he became aware that the Respondent intended on bargaining for an agreement.

• He deposes to a conversation which I summarise as follows:

Mr Loakes: “I’ve had a call regarding an EBA you’re negotiating with the AMWU and the AWU. We’ve got members employed there so I was wondering why you haven’t invited the CFMEU”

Respondent: “It’s just a workshop agreement”

Mr Loakes: “No, it’s the Central Queensland maintenance operations as well.”

Respondent: “Oh yeah. Well, we haven’t deliberately excluded anyone.”

Mr Loakes: “We’ve got a lot of members there and they’re asking why we’re not included in the discussions.”

Respondent “I’m with some people at the moment so can I ring you back?”

• Mr Loakes called Mr Brajevic on 6 occasions, and on 23 March deposes he said in a telephone message as follows:




“Its Ben Loakes from the CFMEU I’m waiting for you to call me. We need to pencil in some dates to negotiate for the EBA. Would you please call me.”

• Mr Loakes’ original affidavit (sworn 29 March 2012) states that the person he called on 1 March 2012 and for whom he left messages was Mr Gradidge.



• In a further affidavit Mr Loakes now realises that he in fact spoke with, and left messages for, Mr Brajevic.



• Further he deposes “that person did leave a voicemail for me a few weeks ago.”



• The CFMEU’s submissions also dated 29 March 2012 submitted ‘the senior human resources advisor’ told Mr Loakes that he would call him back but has not.



• On 26 March 2012 a letter was sent to the Employer, (addressed to Mr Gradidge) requesting a reply by 5pm that day.



• On 27 March 2012 the CFMEU filed a protected action ballot application.

[11] The submissions for the respondent are:

• Mr Loakes spoke with Mr Brajevic who is the Group Manager Employee Relations based in Perth;



• Mr Gradidge works for a separate division in Brisbane;



• Mr Brajevic did return Mr Loakes phone message on 14 March 2012;



• Mr Brajevic was on annual leave from 19-26 March;



• The letter sent on 26 March to Mr Gradidge was on-sent to Mr Brajevic;



• The nature of the agreement sought by the CFMEU requires consideration and consultation by the management team.

[12] Under s.443(1)(b) the onus is on the applicant to establish that they have been genuinely trying to reach agreement with the employer.

[13] The CFMEU have provided evidence that on 1 March 2012 they contacted the Employer and asked why the Employer was not bargaining with the CFMEU.

[14] Mr Loakes then phoned a number of times including on 12 March and it is now agreed that Mr Brajevic called Mr Loakes on the 14 March 2012.

[15] However, at the time this application was made, in the submissions and the supporting affidavit and the letter sent on 26 March 2012, the CFMEU were of a view that no such phone call had been made and there had been no further contact after that initial phone call.

[16] The CFMEU’s letter to the Employer of 26 March 2012 stated it wanted to begin bargaining and that it required a reply by 5pm that day. No such reply was forthcoming from the Employer and the CFMEU filed its protected action ballot the next day.

[17] While the onus remains with the CFMEU to establish it was genuinely trying to reach agreement with the Employer, can the CFMEU rely on the Employer’s behaviour to establish it is genuinely trying to reach agreement?

[18] The CFMEU referred to two authorities dealing with ‘genuinely trying to reach agreement’.

[19] In Total Marine Services Pty Ltd v Maritime Union of Australia 3 (TMS), the Full Bench said:

“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.

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.”

[20] The CFMEU also referred in its oral submissions to the Full Bench decision in JJ Richards Sons Pty Ltd v Transport Workers Union of Australia 4. The decision in JJ Richards, although entirely agreeing and endorsing the observations,5 did question the appropriateness of the test stated in TMS (to “clearly articulated the major items it is seeking for inclusion in the agreement and provide a considered response to the demands made by the other side”). The Full Bench concluded that this was at odds with the reality of a typical case, noting that failure to particularise a claim could sometimes support such a decision.

[21] Although the CFMEU refers in its submissions to the behaviour of the Employer, in particular its lack of response, it does not argue that the Employer refused to bargain. The CFMEU submits that essentially it did everything it could. Its submission asserts:

• (CFMEU) waited for an appropriate amount of time for communication that the employer said would be forthcoming, but was not;



• tried, on numerous occasions over some four weeks, to communicate with the employer to no avail;



• expressed a desire to bargain, and the urgency of its concerns regarding the employer’s conduct;



• despite the failures on the employer’s part, clearly articulated the major items it is seeking for inclusion in an agreement, by provision of a written draft.

[22] The difficulty with these submissions is that the CFMEU made its representations based on wrong information. The Employer did communicate, albeit in a tardy fashion. The letter of 26 March 2012 was sent to the wrong person one day and this application made the next.

[23] In Transport Workers’ Union of Australia v Bristow Helicopters Australian 6 Cloghan C observed:

“…the onus is upon the applicant to demonstrate to the Tribunal that it has been and is genuinely trying to reach agreement with the employer then, “the first thing [the applicant]... needs to do... is to secure the participation of the employer”[citing JJ Richards at paragraph 64] does not necessarily imply that this is the only step required. Bargaining should not be seen as a “lock-step” approach. The TWU, by adopting this “lock-step” approach, leaves to the action or inaction of the employer as determinative of the test in s.443 of the FW Act and excludes consideration of the applicant’s conduct.”

[24] I agree, the CFMEU cannot rely on the inaction of the Employer as a basis for establishing that the unionis genuinely trying to reach agreement. That is not the test.

[25] In answering the question of whether the CFMEU has met the onus, this Tribunal must look to whether the CFMEU has demonstrated by its actions (the telephone calls and messages and a letter) that they are genuinely trying to reach agreement with the Employer.

[26] The facts in JJ Richards are instructive of what the Full Bench thought discharged the onus in that case. The Transport Workers’ Union of Australia (TWU) commenced bargaining in February with a letter to the manager. In early March the employer wrote back stating that it declined to enter into bargaining with the TWU. A second letter dated 30 April was sent by the TWU but never received by the employer. The TWU engaged in some lobbying of the local city council (which procured garbage collection services from the employer) resulting in a resolution in September that the company should negotiate with the union. In November of that year, an application was made for a protected action ballot. The Full Bench found that these steps could properly demonstrate the TWU was genuinely trying to reach agreement (despite the employer’s refusal).

Are then the facts of this matter sufficient to satisfy the onus?

[27] The CFMEU submitted:

• On 1 March 2012, Mr Loakes made the original phone call advising that the CFMEU wanted to bargain.



• Further telephone messages were left on the 12 and 14 March 2012.



• The Employer called Mr Loakes on 14 March but Mr Loakes was not aware of this phone call.



• Two further follow-up phone calls were made by the applicant on the 21 and 23 March 2012.



• Mr Green wrote on behalf of the CFMEU to Mr Gradidge, demanding a response on the same day.



• This application was filed the next day.

[28] There is nothing more. Over a period of less than a month there was one telephone conversation, one phone call missed by Mr Loakes, unanswered telephone messages and a misdirected letter. In my view these are steps preparatory to bargaining, but not bargaining.

[29] When the CFMEU made this application, from their point of view, they thought that there had been no communication from the Employer. I have no doubt the CFMEU was genuinely wanting to begin to bargain but the evidence establishes no more than a beginning.

[30] Accordingly this application is premature in terms of the Act’s requirements. It is of course open to the CFMEU to file a further application in future if the circumstances are appropriate.

Entitlement to represent

[31] The Employer (and the AWU as intervener) also raised the issue whether the CFMEU is entitled to represent the industrial interests of all the employees referred to in its application.

[32] Considerable time was spent on this matter and some clarity around the issue was provided in submissions and at the hearing. In particular, the Employer acknowledged, and the AWU conceded, that the CFMEU is entitled to represent its member who works as a crane driver.

[33] In view of my decision on the premature nature of the application, it is unnecessary to further address this issue.

Order

[34] The application is dismissed.

COMMISSIONER

Appearances:

Mr Travis O’Brien for the Construction, Forestry, Mining and Energy Union.

Mr Derek Broanda for The Australian Workers’ Union

Mr Dean Brajevic for the Employer.

Hearing details:

2012.
Brisbane:
30 March.

 1   AMWU v Monadelphous Engineering Pty Ltd (B2012/611)

 2   AWU v Mondadelphous Engineering Pty Ltd (B2012/617)

 3   [2009] FWAFB 368 at PN 31 and 32

 4   [2010] FWAFB 9963

 5   at PN 83 per Lawler VP and Bissett C

 6   [2011] FWA 3094 at PN 32

Printed by authority of the Commonwealth Government Printer

<Price code C, PR521955>