Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd

[2016] FWC 7780

[2016] FWC 7780

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Wagstaff Piling Pty Ltd
(B2016/1125)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 25 NOVEMBER 2016

Proposed protected action ballot of employees of Wagstaff Piling Pty Ltd; whether there is a notification time in relation to the proposed agreement; whether employer had agreed to bargain; application dismissed.

[1] Wagstaff Piling Pty Ltd (Wagstaff) provides various piling and related services in the building and construction industry. Certain employees of Wagstaff are covered in their employment with Wagstaff by the Wagstaff Piling Pty Ltd and CFMEU Piling Industry Enterprise Agreement 2011-2015 (Agreement), the nominal expiry date of which has passed. Some of these employees are members of the Construction, Forestry, Mining and Energy Union (CFMEU).

[2] By application lodged on 24 October 2016, the CFMEU has applied for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (Act). Wagstaff opposes the making of a PABO on two grounds including that the CFMEU could not, on 24 October 2016, apply for a PABO because there has not been a notification time in relation to the proposed enterprise agreement 1. I agree and I have decided to dismiss the application. As I have concluded that the CFMEU cannot apply for a PABO by reason of s.437(2A) of the Act, it is not necessary for me to decide the other ground of opposition raised by Wagstaff. These are the reasons for my decision.

[3] Section 437 of the 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.

…

(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).

…

[4] As to the meaning of a ‘notification time’, s.173(2) of the Act provides:
“173 Notice of employee representational rights
…

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the
agreement; or

(b) a majority support determination in relation to the agreement comes
into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

[5] The legislative history, purpose and meaning of s.437(2A) was considered by a Full Bench of the Commission in Maritime Union of Australia v Maersk Crewing Australia Pty Ltd 2and is not repeated here. It is sufficient for present purposes to observe that s.437(2A) does not require that there has been a notification time in respect of the enterprise agreement proposed by the PABO applicant.3 Subsection 437(2A) provides that a PABO application cannot be made ‘unless there has been a notification time in relation to the proposed enterprise agreement’. The subsection does not require there to have been a notification time for the particular agreement being proposed by the PABO applicant. It is sufficient that there has been a notification time ‘in relation to’ the agreement proposed by the PABO applicant.4 There may for example, be a notification time for an agreement proposed by the employer so that there has been a notification time in relation to the agreement proposed by the PABO applicant.

[6] As outlined above, s.437(2A) of the Act is accompanied by a legislative note which points to s.173(2) of the Act for the meaning of “notification time”.

[7] Relevantly, s.173(2)(a) provides that the notification time for a proposed enterprise agreement is the time when the employer agrees to bargain, or initiates bargaining, for the agreement.

[8] Wagstaff contends that s.437(2A) is a jurisdictional prerequisite to an application for a PABO, with the effect that a bargaining representative cannot apply for a PABO “unless there has been a notification time in relation to the proposed agreement”.

[9] The relevant chronology of dealings between Wagstaff and the CFMEU concerning a proposed agreement is not seriously in dispute, however, the content of those dealings is in contest. Before turning to that chronology, I will briefly deal with the question raised by Wagstaff as to the authority of Mr Ashley Tonkin-Hill to agree to bargain.

[10] Mr Tonkin-Hill is a director and State Manager of Wagstaff. He gave evidence that he does not have authority on behalf of Wagstaff to agree to bargain or to initiate bargaining. He said that this power is vested with John Wagstaff, Wagstaff’s Managing Director. Mr Tonkin-Hill said that Mr Wagstaff has not directed him to bargain for an enterprise agreement on behalf of Wagstaff nor has Mr Tonkin-Hill delegated authority to Mr Tonkin-Hill to commence bargaining on behalf of Wagstaff 5. Were it necessary for me to have decided the issue, I would have concluded that Mr Tonkin-Hill had at the very least ostensible authority, to commit Wagstaff to bargain for an enterprise agreement. Mr Tonkin-Hill is a director of Wagstaff of more than 8 years standing and has been its State Manager for Victoria, South Australia and Tasmania for 20 years.6

[11] Mr Tonkin-Hill has previously negotiated enterprise agreements with the CFMEU 7 and has signed enterprise agreements on behalf of Wagstaff including the current operative Agreement.8 Mr Tonkin-Hill did not tell the CFMEU at any time during their various dealings chronicled below that he did not have authority to commit Wagstaff to initiate bargaining or to agree to bargain.9

[12] No document was produced by Wagstaff to show that only its Managing Director was authorised to initiate bargaining or agree to bargain for an enterprise agreement, nor was the Managing Director called to give evidence as to the limit of Mr Tonkin-Hill’s authority. The absence of such evidence combined with the prior dealings between the CFMEU and Mr Tonkin-Hill as well as Mr Tonkin-Hill’s standing in Wagstaff, would lead inevitably to the conclusion that at the very least, Mr Tonkin-Hill had or has ostensible authority if not actual authority to commit Wagstaff to bargain for an agreement. In truth, the “absence of authority” point raised by Wagstaff is little more than a cute lawyer’s point made on the thinnest of evidentiary foundations. Moreover, the assertion of an absence of authority is inconsistent with Mr Tonkin-Hill’s evidence that he had continually told the CFMEU that the condition precedent to Wagstaff agreeing to bargain was that the subject of bargaining would be a 2014 code compliant agreement, which suggests that he had authority to agree to bargain if the condition precedent were met.  10
[13] The relevant chronology of dealings between Wagstaff and the CFMEU concerning a proposed agreement follows below.

Correspondence of 21 September 2015

[14] On 28 September 2015, Wagstaff received a letter dated 21 September 2015 (21 September 2015 Letter) from John Setka, the Branch Secretary of the CFMEU, addressed to Daniel Hodges who is an Industrial Relations Manager at Master Builders Association of Victoria. Mr Hodges was involved in the bargaining for the Agreement but has had no involvement in any bargaining for a replacement to the Agreement. He is not an employee of Wagstaff, nor is he a bargaining representative of Wagstaff. In short, the letter provided that the CFMEU wished to commence negotiations with Wagstaff. 11 The letter is one which would have been sent to various employers in the industry.12

[15] Enclosed with the 21 September 2015 Letter was a document titled “Schedule 2.1 Notice of Employee Representational Rights” (21 September 2015 Draft NERR). 13

[16] No employee or representative of Wagstaff sent any response to the 21 September 2015 Letter to the CFMEU. 14 Wagstaff did not prepare a NERR, nor did it provide its employees with a NERR following receipt of the 21 September 2015 Draft NERR.15

[17] It is not in dispute that Mr Tonkin-Hill did not have any further contact from the CFMEU about commencing bargaining until December 2015. 16

[18] All that may be said about this dealing is that the CFMEU sought by its 21 September 2015 Letter to initiate bargaining with Wagstaff. However, Wagstaff did not respond, nor did it agree to bargain either expressly, or through any conduct, for example, by issuing a NERR to employees.

Correspondence of 16 December2016

[19] On 18 December 2015, Wagstaff received a letter dated 16 December 2015 from Mr Setka addressed to Mr Hodges (16 December 2015 Letter), the first paragraph of which provides:

“We refer to our previous letter sent on 21 September 2015 regarding the commencement of bargaining for a new enterprise agreement and we thank the majority who have responded” 17

[20] Enclosed with the 16 December 2015 Letter was a document titled “CFMEU Log of Claims”; 18also enclosed was another document titled “Schedule 2.1 Notice of Employee Representational Rights” (16 December 2015 NERR).19

[21] No employee or representative of Wagstaff sent any response to the CFMEU; 20 Wagstaff did not prepare a NERR, nor did it provide its employees with a NERR following receipt of the 16 December 2015 Draft NERR.21

[22] No other communications between Wagstaff and the CFMEU occurred relating to any proposed enterprise agreement between September 2015 and 1 June 2016. 22

[23] All that may be said about the 16 December 2015 Letter is that the CFMEU sought, in a pro forma style letter to follow up on its attempt to initiate bargaining with Wagstaff. However, Wagstaff did not respond, nor did it agree to bargain either expressly, or through any conduct, for example, by issuing a NERR to employees.

[24] It seems to me, at this stage of dealings, Wagstaff has neither initiated bargaining nor has it agreed to bargain for any proposed agreement.

Meeting of 1 June 2016

[25] At some point prior to 1 June 2016 Mr Mark Travers of the CFMEU contacted Mr Tonkin-Hill to organise a meeting which was then scheduled for 1 June 2016. On 1 June 2016, Mr Travers met with Mr Tonkin-Hill together with, Mr Brendan Pitt, also of the CFMEU, at the Wagstaff Port Melbourne office. 23

[26] Mr Pitt informed Mr Wagstaff that the CFMEU wanted to negotiate for an enterprise agreement directly with Wagstaff. 24 Mr Pitt handed Mr Tonkin-Hill a document titled “Schedule 2.1 Notice of Employee Representational Rights” (1 June 2016 Draft NERR) and a document titled “Wagstaff EBA Negotiations”;25 Mr Travers handed Mr Tonkin-Hill a document titled “CFMEU v Wagstaff 2015-2018 Piling Agreement.”26 The last two mentioned documents appear to relate to NSW and are not related to any Victorian negotiations.

[27] Although Mr Travers’ evidence was that he had with him during the meeting a copy of a document titled “[Employer name] and CFMEU (Victoria) Piling Enterprise Agreement 2016-2018” (CFMEU Proposed Agreement) it is not in dispute that Mr Tonkin-Hill did not leave the meeting with a copy of the CFMEU Proposed Agreement. 27 Nor is it in dispute that Mr Tonkin-Hill raised the issue of compliance with the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (2014 Building Code).28

[28] Mr Travers’ evidence is that the parties went through the CFMEU Proposed Agreement. 29 This is in dispute.30 Mr Travers’ evidence is that Mr Tonkin-Hill expressed a view about the 5% wage increases.31 This does not seem to be in dispute.32

[29] Annexed to Mr Tonkin-Hill’s witness statement is a contemporaneous note taken by him during the meeting. 33 The note is consistent with the evidence given by Mr Tonkin-Hill. The note indicates that the CFMEU wished to bargain directly with individual companies. The note also makes clear Mr Tonkin-Hill was handed two documents during the meeting, that Mr Tonkin-Hill expressed his concern about high wages and that that there were discussions about the 2014 Building Code. Mr Travers’ evidence is that he does not take or keep notes34 and that he relies on his memory.35 I am inclined to accept the evidence of Mr Tonkin-Hill which is supported by the contemporaneous note.

[30] The meeting concluded on the basis that Mr Tonkin-Hill would provide Wagstaff’s position after his meeting with the Piling Federation on 7 June 2016. 36

[31] On the evidence, it seems to me that while the CFMEU wanted to bargain with Wagstaff for an agreement, Wagstaff did not, at the 1 June 2016 meeting, agree to bargain. That Mr Tonkin-Hill expressed a view about the wages claim does not of itself indicate an agreement to bargain. The position of Wagstaff had not changed in the time since it had received the correspondence to which earlier reference was made. Wagstaff had not issued a NERR to its employees, nor had it taken any other step from which it might be inferred that it had agreed to bargain.

Correspondence of 31 May 2016

[32] On 6 June 2016, Wagstaff received a letter dated 31 May 2016 from the CFMEU addressed to “The Proper Officer” (31 May 2016 Letter), the first of which paragraph provides: 37

“We refer to our previous letters sent on 21 September 2015 and 16 December 2015 regarding the negotiations for a new enterprise agreement.”

[33] Enclosed with 31 May 2016 Letter was another document titled “Schedule 2.1 Notice of Employee Representational Rights” (31 May 2016 Draft NERR). 38

[34] No employee or representative of Wagstaff sent any response in relation to the 31 May 2016 Letter to the CFMEU. 39Wagstaff did not prepare a NERR, nor did it provide, its employees with a NERR following receipt of the 31 May 2016 Draft NERR.40

[35] The 31 May 2016 Letter is a further attempt by the CFMEU to have Wagstaff agree to bargain. However, there is nothing in the conduct of Wagstaff thus far, that would suggest that it either initiated bargaining or agreed to bargain. Moreover, the 31 May 2016 Letter also contained the following:

“If you have not already distributed the Notice of Representative Rights Notice to your employees in accordance with s.174 of the Fair Work Act 2009 we ask that you do so immediately.

For your convenience, please find enclosed draft notice to be completed and sent to your employees.

Once we have received confirmation that this has been done, we will forward an electronic copy of our proposed draft agreement for your consideration.

To confirm this step, and request a copy of the draft, please email [email protected] or please call the EBA hotline on [phone] with the following details:

…”

[36] It seems clear from the above extract, that the CFMEU considered the issuing of a NERR as the necessary precondition to bargaining commencing. That is, confirmation by the employer that a NEER had been issued was a necessary precondition for the CFMEU to provide a copy of “our proposed draft agreement for your consideration”. No such step was taken by Wagstaff.

Staff Meeting

[37] On 23 June 2016, Mr Tonkin-Hill arranged to meet with employees at Wagstaff’s Laverton yard. The purpose of the meeting was to advise the crew about plans for an upcoming Rail Project involving multiple 24 hour shut down shifts, and also to update the crews on Wagstaff’s position on the 2014 Building Code pending the Federal Election and how that may impact on any future enterprise agreement. 41

[38] Mr Tonkin-Hill took notes of the meeting. 42 The notes make clear that Mr Tonkin-Hill indicated to employees that Wagstaff would not initiate negotiations with the CFMEU until after the 2016 Federal election because of uncertainty about the 2014 Building Code. It is clear from the notes taken that Mr Tonkin-Hill raised concerns about the 2014 Building Code and the need for Wagstaff to undertake commonwealth government funded construction work.43

[39] That Mr Tonkin-Hill held such a meeting and gave employees information as summarised above is not disputed. That information is consistent with the position that Wagstaff appears, to this stage, to have adopted, namely it had not initiated nor had it agreed to bargain for an agreement.

Communication of 15 July 2016

[40] On 15 July 2016, Mr Tonkin-Hill received a telephone call from Mr Long of the CFMEU. Mr Tonkin-Hill’s evidence is that various work related matters were discussed and that a conversation about the CFMEU’s request to bargain for a new agreement arose. Mr Tonkin-Hill’s evidence is that he advised Mr Long that he would get back to him after his meeting with the Piling Federation. 44 This evidence is uncontested. Mr Tonkin-Hill’s response to Mr Long is consistent with the position apparently adopted by Wagstaff as indicated earlier above.

Meeting of 3 August 2016

[41] At approximately 11.30am on 3 August 2016 Mr Travers attended Wagstaff’s office in Melbourne and met with Mr Tonkin-Hill and Mr David Martel, Wagstaff’s Victorian Construction Manager. 45

[42] It is not in dispute that Mr Tonkin-Hill was provided with a copy of the CFMEU Proposed Agreement which was left in his possession; 46 and that the 2014 Building Code remained an overarching issue.47

[43] The content of this meeting is in dispute. Mr Travers’ evidence is that the parties discussed pay rates and the CW structure 48 and that Mr Tonkin-Hill provided comments in relation to the CFMEU Proposed Agreement.49 Mr Travers’ evidence is also that the parties spoke in depth about the drug and alcohol policy.50 Mr Tonkin-Hill’s evidence is that the terms of the CFMEU Proposed Agreement was not discussed in “detail at all.”51

[44] Mr Travers’ recollection of the 3 August 2016 meeting is best encapsulated in the following evidence recorded in transcript:

“Yes, thank you.  Just coming back - so it was really at the meeting on 3 August when for the first time you gave this particular document to Wagstaff and left it with them?---Yes.

So just following that through:  there wouldn't have been any opportunity for Wagstaff at that point in time - that is, at 3 August - to review or provide any response in relation to that document which it had only been given?---It can be response in that meeting.

I see.  What was that response?---2014 co-compliant agreement.

Mr Travers, I'll come to the code issue but I'm just talking generally about this agreement document?---Yes.

I'll come to the code.  But Wagstaff at that 3 August meeting had not said anything specifically about the document which you gave to it on 3 August?---We spoke about it in that meeting, like I just said.

Well, you may have spoken about it but perhaps I'm not being clear, Mr Travers.  What I'm putting to you though is that Wagstaff at that meeting on 3 August - you may have given it to them and said things about it but Wagstaff was not in a position and did not provide any comments in relation to that document on 3 August?---Yes, they did.

What do you say they said about that agreement?---Well, we spoke about the pay rates and the CW structure.

I see.  If I can just come back to the code issue - now, we've traversed that or we've covered that as at the 1 June meeting and really, the position hadn't changed inasmuch as Wagstaff was continuing to defer indicating any view until it had more clarity about the 2014 code?---There was no deferring about the code.  They were waiting for it to get through the senate - - -

Yes?--- - - as a lot of other companies.  But it didn't stop us talking further regarding the EBA in general.

But the position that Wagstaff conveyed to you was that it didn't really want to discuss until it knew what was happening with the code?---We already had discussed, like I just said, regarding the wages and the CW classifications.

Do you disagree with what I'm putting to you, though?---Disagreeing with what part?

Well, let me just ask it again:  Wagstaff, and in particular Mr Tonkin-Hill, had conveyed his position that Wagstaff did not wish to bargain until it had clarity about the 2014 code?---I thought we already were bargaining.

You may have thought that but I'm just asking you as to - --?---Well, we were bargaining.

I see?---The code is obviously a sticking point of the bargaining.

Well, to the extent that there were comments around wages, they were based, were they not, on what the union had indicated in the leaflet and more generally about its 5 per cent position?---Correct.

Given the voluminous nature of the document, you're not suggesting - - -?---What is that - excuse me, I don't know what that word means.

Sorry, given the - I apologise:  given that the document is quite bulky the fact that you gave it to Mr Tonkin-Hill on 3 August - you're not suggesting that he was reasonably in a position to review and discuss it at that very meeting?---I know the document looks bulky but three quarters of the document is rhetoric that is in there all the time.  The issues that were new to the document was the 5 per cent, the CW structure and the drug-and-alcohol policy.  We spoke pretty heavily about the drug-and-alcohol policy is a major change for all EBAs.

But you don't have any records or notes to confirm that, do you?---No.

As you said, you were having many discussions at about that time?---Yes.

So it's quite possible that some of those discussions which you now recall may have been with other companies?---I have discussions with numerous companies but I had the discussions with Ashley at Wagstaff's office what I just spoke about.

Yes, but I'm putting to you it's possible, isn't it, that some of what you now recollect may have been topics that you discussed with other companies?---No.

No.  But nonetheless, the 2014 code continued to be an over-arching issue?---It still is, isn't it?

Yes but it certainly was at 3 August, wasn't it?---Yes.

From your perspective, the company wasn't moving past its view that it had to get certainty about the 2014 code?---Correct.  The code doesn't exist, though.

Yes, from your perspective, the union didn't wish to - I withdraw that.  The union was staunchly opposed to anything involving or connected to the 2014 code?---I don't know how we can negotiate about something that's not there yet.

Yes.  So what you're saying is that you can't negotiate in respect of the 2014 code because it doesn't exist, on your view?---That's right.

Now, because of this over-arching issue you decided to, at that point, arrange a meeting involving Mr Ralph Edwards, the president?---Correct.

You had explained to him that you wanted him to come in and talk about this 2014 code issue?---Correct.

This meeting occurred on 21 September?---Yes.” 52

[45] Even if I accept Mr Travers’ evidence uncritically, it shows no more than the CFMEU wanting Wagstaff to agree to the CFMEU Proposed Agreement. That Mr Tonkin-Hill might have engaged in some general discussion about the CFMEU Proposed Agreement does not mean he and thus Wagstaff had agreed to bargain. On the evidence, Wagstaff’s position remained that it did not wish to engage in bargaining until the position of the 2014 Building Code was clear or until the CFMEU proposed an agreement that complied with the 2014 Building Code.

[46] It seems to me that the position as at 3 August 2016 was that Wagstaff had not expressly agreed to bargain, nor can it be said that it agreed to bargain through its conduct. Wagstaff maintained that it would agree to bargain for an agreement if a 2014 Building Code compliant agreement were available. 53

Meeting of 21 September 2016

[47] On 21 September 2016, Mr Tonkin-Hill and Mr Josh Humphreys, Wagstaff Construction Manager 54 met with Mr Travers and Mr Edwards, President of the CFMEU.55The meeting had been arranged by Mr Travers so that Mr Edwards could speak with Wagstaff about the 2014 Building Code.56

[48] It is not in dispute that this was the only meeting that Mr Edwards attended 57 and that Wagstaff had not by this or at any stage issued a NERR.58 It is also not in dispute that the 2014 Building Code remained an issue59 and that Wagstaff’s position was that it wished to have more clarity about the 2014 Building Code60 and that the CFMEU’s position was that the 2014 Building Code was of no relevance because it did not apply.61

[49] It is not in dispute that the parties spoke briefly about the agreement that Keller Foundations had negotiated with the CFMEU and whether that agreement was 2013 code complaint. 62

[50] Mr Edwards took brief notes of the meeting, which were tendered during the proceeding. The note merely records those who were present at the meeting and lists three headings that Mr Edwards’ says were discussed at the meeting. 63 The note makes reference to Keller but it does not record any comments or responses from Wagstaff. Mr Edward’s evidence is that the note was not an exhaustive one64 and in essence other issues were discussed but not documented. Mr Edwards’ evidence is that the parties discussed the CFMEU Proposed Agreement and the appendix to the CFMEU Proposed Agreement.65 His evidence is that Mr Tonkin-Hill indicated that he had no issues with the wages increase and that there was no issue with the money.66 This account is disputed.67

[51] Wagstaff maintains that as at 21 September 2016 it did not provide any specific responses to the CFMEU which is further illustrated by Mr Edwards’ diary note, which Wagstaff says, fails to indicate any response from Wagstaff but indicates Keller Foundations’ response. 68 Ultimately, I prefer the evidence of Mr Tonkin-Hill. The brief and generalised nature of the note taken by Mr Edwards seems to me, to be consistent with Mr Tonkin Hill’s evidence. In particular, any concession made about wages by Mr Tonkin-Hill, is in my view of such moment as to warrant recording in a note made of the meeting. The absence of such a record is therefore telling.

[52] In essence, the position of Wagstaff since the 3 August 2016 meeting had not advanced or changed. A generalised discussion had occurred, but there was no express indication that Wagstaff would bargain for the CFMEU Proposed Agreement and there was an indication that it would bargain if a 2014 Building Code compliant agreement was on offer from the CFMEU. 69 Mr Tonkin-Hill was cross-examined about this issue as follows:

“Thank you, sir.  Now it's the case, sir, that throughout your discussions with Mr Travers and Mr Edwards you never once told them that Wagstaff was not bargaining.  You didn't use those - - -?---I didn't use those words, no.

Thank you.  And you never told them that it was a condition precedent of Wagstaff bargaining about something happening?---The condition precedent that I told them was that the agreement that we would have to negotiate on would be a 2014 code compliant agreement.

I put it to you, sir, that you did not at any point - - -?---And I've continually said that throughout all the discussions.

You did not at any point say that to them?---Yes, I did.

And that you have not reported the matter in your 21 September note, have you, sir?---Which note is that?

A note that's been tendered earlier by Mr Rauf?---It's not on that note, no.

No, and there's no note of you saying that to Mr Travers at the 3 August meeting, is there?---No.

And it's the case, sir, isn't it, that it's possible that you're mistaken about your evidence that you articulated that to Mr Travers and Mr Edwards, that you made no note about it at all?---No.

It was a matter of importance though, wasn't it, sir?---It was very important to us.

But you didn't make a note of it?---Well, there are notes of it, I'll just have to fine them.

I asked you when we commenced this discussion, sir, whether you had put into evidence the totality of your notes, and you said yes.  Is your answer to that wrong?---In my notes of the 1st of the 6th I've – they don't want the – "They want the 2013 code, not the 2014 code".

Yes, and where is the note there that it's a condition precedent in the bargaining to the union providing you what you consider to be a 2014 code compliant agreement?---That condition's not there.” 70

[53] Although Mr Tonkin-Hill did not make a note of Wagstaff’s “condition precedent”, I accept that this position was communicated to the CFMEU. It is consistent with Wagstaff’s refusal to issue a NERR, it is consistent with the communication to its workforce and most telling it is consistent with the evidence of Mr Travers about the position of Wagstaff communicated to him by Mr Tonkin-Hill on 3 August 2016. 71
Communication of 4 October 2016

[54] At approximately 11.00am on 4 October 2016, Mr Tonkin-Hill received a telephone call from Mr Travers. 72 It is not in dispute that during the conversation Mr Travers indicated that the matter would be referred to the CFMEU’s legal department if the CFMEU Proposed Agreement was not signed by Wagstaff.73

[55] The parties did not have any further discussions about the CFMEU Proposed Agreement or any other agreement.

[56] Wagstaff’s submissions addressed the proposition that there has not been a “notification time” for the proposed agreement covering Wagstaff. In summary, Wagstaff says:

a) The CFMEU, as part of a broader campaign direct at the industry, sent correspondence to companies, including Wagstaff, along with template documents in an attempt to commence bargaining with them; 74

b) It consistently did not respond to the CFMEU’s correspondences in line with its intention to not commence bargaining with the CFMEU until it had clarity about the approach to other piling companies and also the status of the 2014 Building Code. Until 1 June 2016, there had been no direct follow up by the CFMEU; 75

c) In its discussions which occurred in June and July 2016, Wagstaff indicated that it would respond to the CFMEU’s request to commence bargaining once it had attended a Piling Federation meeting; 76

d) In the two meetings which occurred in August and September 2016, it is apparent that the CFMEU was not satisfied with waiting for Wagstaff to advise of its position and instead demanded that Wagstaff sign up to a pattern enterprise agreement which had been provided to Wagstaff in August 2016. Wagstaff resisted these demands and confirmed that it would consider its position. The position of Wagstaff had not changed by October 2016; 77

e) To the extent that Wagstaff had discussions with the CFMEU about bargaining, these were in the nature of enquiries and raising broader issues such as the 2014 Building Code. They were not discussions conveying an agreement to commence bargaining. Wagstaff has consistently sought to defer the commencement of any bargaining; 78

f) Wagstaff has not taken any steps to provide a NERR to relevant employees; 79

g) Wagstaff has not conducted any meetings with employees to discuss a proposed enterprise agreement or bargaining (other than a discussion which occurred on 23 June 2016 about forthcoming shutdowns and that Wagstaff did not wish to bargain until at least after the election); 80

h) Wagstaff has not reviewed or provided any response to the CFMEU in relation to the documents that the CFMEU had provided to Wagstaff; 81

i) There is no specific point in time which can be identified as the notification time 82; and

j) Even the CFMEU’s position is varied as to any precise notification time. 83

[57] The CFMEU says that Wagstaff has agreed to bargain for the purposes of s.173(2)(a) of the Act and that such agreement can be inferred from the conduct of Mr Tonkin-Hill. The CFMEU says that an agreement to bargain had been reached during the course of, or at the conclusion of the 3 August 2016 meeting or at the latest, during the course of or at the conclusion of the 21 September 2016 meeting. 84

[58] There is an obligation in s.173(1) that falls upon an employer who will be covered by a proposed enterprise agreement to take all reasonable steps to give a NERR to all employees who will be covered by the agreement and who are employed by the employer at the notification time. Such a notice must be given by the employer as soon as practicable, and no later than 14 days after the notification time for the proposed agreement. As earlier noted the expression “notification time” means relevantly, the time when the employer agrees to bargain, or initiates bargaining, for the agreement. Viewed in its entirety, the meaning ascribed to the expression “notification time” in s.173(2) of the Act indicates a single event which happens at a particular time. 85 It seems to me therefore, that the reference to “notification time” in s. 437(2A) is likewise a reference to a single event that has happened at a particular time, which time is a time prior to the time at which the application for a protected action ballot order has been made.

[59] It is accepted that for the purposes of assessing whether an employer has relevantly agreed to bargain, such an agreement to bargain may be inferred from the conduct of the employer. The case of the CFMEU hinges entirely upon my being satisfied that the conduct of Wagstaff in the lead up to and that the meetings of 3 August 2016 and 21 September 2016 is indicative or consistent with an agreement to bargain; and that the act of agreeing to bargain occurred either on 3 August 2016 or alternatively on 21 September 2016. 86

[60] Based on my analysis of evidence of the relevant dealings between the CFMEU and Wagstaff above, I am not satisfied that Wagstaff has, relevantly, agreed to bargain for a proposed agreement at any time. It seems to me that Wagstaff has at all times maintained a position that it would agree to bargain if a proposed agreement which was compliant with the 2014 Building Code was available for its consideration. The CFMEU does not propose such an agreement. Whilst it might be said that this is merely a dispute about the content of the agreement, it is in my view much more than that. Wagstaff does not wish to engage with the CFMEU at all about the CFMEU Proposed Agreement, it has not agreed and does not agree to bargain for that agreement. Neither party has identified any other proposed agreement for which Wagstaff has agreed to bargain. All that Wagstaff has done is indicate that it will agree to bargain if the CFMEU proposed an agreement that is 2014 Building Code complaint. The CFMEU does not propose such an agreement.

[61] In the circumstances, I do not consider that there has been a notification time in relation to the proposed agreement with the consequence that the CFMEU cannot make an application for a protected action ballot order. The application must be dismissed.

Conclusion

[62] For the reasons given, I do not consider that there has been a notification time in relation to the proposed enterprise agreement, the subject of the application, for a protected action ballot order. Consequently, I order that the application made by the CFMEU for protected action ballot order be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr P Boncardo for the CFMEU.

Mr B Rauf of Counsel for Wagstaff.

Hearing details:

2016, Sydney:

11 November.

 1 Respondent’s Outline of Submissions dated 10 November 2016 at [2].

 2   [2016] FWCFB 1894.

 3 Ibid at [24].

 4   Ibid.

 5 Exhibit 4 at [10].

 6   Transcript PN626 - PN630.

 7   Transcript PN631.

 8   Transcript PN632 - PN633.

 9   Transcript PN634.

 10   Transcript PN767 – PN768.

 11 Exhibit 4 at [13].

 12   Transcript PN391-PN392.

 13 Exhibit 4 at [15].

 14 Ibid at [16].

 15 Ibid at [17].

 16 Ibid at [18].

 17 Ibid at [19].

 18 Ibid at [20].

 19 Ibid at [21].

 20 Ibid at [23].

 21 Ibid at [24].

 22 Ibid at [25].

 23 Ibid at [26].

 24 Ibid at [28].

 25   Ibid at [29], PN414.

 26   Transcript PN413.

 27   Transcript PN318.

 28   Exhibit 4 at [32], PN424, PN653.

 29   Transcript PN432 – PN433.

 30   Transcript PN666.

 31   Transcript PN435.

 32  Transcript PN657.

 33   Exhibit 4 at Attachment 5.

 34   PN372.

 35   PN373.

 36 Exhibit 4 at [32].

 37 Ibid at [35].

 38 Ibid at [36].

 39 Ibid at [37].

 40 Ibid at [38].

 41 Ibid at [39].

 42   Exhibit 4 at Attachment 7.

 43   Ibid.

 44 Exhibit 4 at [40].

 45 Ibid at [44].

 46   Transcript PN455, PN469.

 47   Transcript PN490 - PN491.

 48   Transcript PN475.

 49   Transcript PN474.

 50   Transcript PN485.

 51 Transcript PN687, Exhibit 4 at [49].

 52   Transcript PN462 – PN497.

 53   Transcript PN680 – PN682, PN470 – PN471.

 54   Transcript PN695 - PN697.

 55 Exhibit 4 at [50].

 56   Transcript PN491 – PN496.

 57   Transcript PN153.

 58   Transcript PN249.

 59   Exhibit 1 at [8], PN196.

 60   Transcript PN199.

 61 PN198, Exhibit 1 at [13].

 62   Transcript PN720 - PN721.

 63   Transcript PN57.

 64   Transcript PN222.

 65 Transcript PN101, Exhibit 1 at [14].

 66 Exhibit 1 at [11].

 67   Transcript PN711.

 68   Transcript PN235 – PN245.

 69   Transcript PN766.

 70   Transcript PN766 – PN776.

 71   Transcript PN470- PN471.

 72 Exhibit 4 at [54].

 73   Transcript PN764.

 74   Respondent’s Outline of Submissions dated 10 November 2016 at [13a].

 75   Ibid at [13b].

 76   Ibid at [13c].

 77   Ibid at [13d].

 78   Ibid at [13e].

 79   Ibid at [14b].

 80   Ibid at [14c].

 81   Ibid at [14d].

 82 Ibid at [15].

 83 Ibid at [16].

 84   Transcript PN822 – PN823.

 85   See also Transport Workers' Union of Australia v Hunter Operations Pty Ltd[2014] FWC 7469 at [52].

 86   Transcript PN822 – PN823.

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