Construction, Forestry, Mining and Energy Union v Westfield Design & Constructions Pty Ltd
[2011] FWA 7411
•27 OCTOBER 2011
[2011] FWA 7411 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
Westfield Design & Constructions Pty Ltd
(B2011/3763)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 27 OCTOBER 2011 |
Summary: Protected Action Ballot Order application - whether “a proposed agreement”- whether genuinely trying to reach agreement - different negotiation processes by Divisional Branches of the CFMEU - uncertainty and ambiguity - obligations owed to an employer in order to be genuinely trying to reach agreement
[1] On 23 October 2011 the Construction, Forestry, Mining and Energy Union (“the CFMEU”) made application under s.437 of the Fair Work Act 2009 (“the Act”) for a protected action ballot to determine whether the proposed industrial action specified in the application had the support of employees of Westfield Design & Constructions Pty Ltd (“the Employer”).
[2] At the hearing of the matter on 24 October 2011 (“the first day’s proceeding”) the CFMEU was represented by persons holding positions of various kinds with the two Queensland Divisional Branches of the CFMEU Construction and General Division; these being the Construction and General Division, Queensland Builders Labourers' Divisional Branch (“the BLFQ”), and the Construction and General Division, Queensland Construction Workers Divisional Branch (“the C&G Divisional Branch”).
[3] All the statutory requirements in relation to the application were determined (and retained in transcript) over the course of the first day’s proceeding, bar the requirements of s.433 of the Act, which read as follows:
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.
[4] The Employer here contended that the CFMEU had not been genuinely trying to reach an agreement with the Employer because representatives of the C&G Divisional Branch and the BLFQ had been conducting themselves in a manner that demonstrated that they were each seeking to make a separate agreement with it.
[5] That is, the representatives of the two Divisional Branches had each met separately with the Employer and sought to enter into terms and conditions that were in various ways dissimilar to one another.
[6] Because the two Divisional Branches had so conducted themselves, the Employer contended that the CFMEU (which was the applicant) could not be found to have been genuinely trying to reach an agreement with it, as there was no proposed agreement that represented a consolidated claim by the two Divisional Branches on behalf of the CFMEU itself.
[7] The position of the two Divisional Branches, very generally at least, was that they were negotiating a common agreement with the Employer, and any contention to the contrary was a construction on the Employer’s part alone.
[8] Evidence was taken in relation to this claim on 25 October 2011, and I set out in the following some of the claims made by the various parties.
[9] Mr Close, a representative for the C&G Divisional Branch who gave his title as Assistant State Secretary of the CFMEU, claimed in meeting with the Employer he was seeking to reach an agreement with the Employer which covered both Queensland Divisional Branches, though he was curious as to why the BLF did not attend those meetings:
So you agree that the BLF weren't at any of those meetings?---I agree that I was confused why they weren't at those meetings because I asked each time where are they, and when we had a meeting, Dean, whether it be on - I'm just looking for the dates here now, whatever dates were that we had those meetings and we arranged for two weeks time or whatever, you know that you or the company were to organise it asking the BLF will be there, mate, and as I said we turn up for a meeting and I say, "Where's Kevin or where's the BLF representative?" At no stage did I never know that we were negotiating as separate unions 1.
[10] Mr Close, however, did recall some comments made by the Employer about the two Divisional Branches being together for purposes of negotiations:
Were you aware or do you recall Mr Zilverschoon or Mr Cameron complaining about the difficulties in the negotiation process with the BLF meeting separately?
---What I do recall, your Honour, is the frustration the same as I had is why they weren't there at the time and like I said, your Honour, being unaware that there was any second round of negotiations happening.
But do you recall Mr Cameron and Mr Zilverschoon expressing frustration?---No, I don't, I'm sorry I don't, I remember them saying we should be together but I don't remember them saying difficulties negotiating with two branches around two documents, no. 2
[11] Mr Close nonetheless maintained that whilst the BLFQ did not attend the meetings at which he attended, he had authority to negotiate on behalf of the BLFQ in order to bring about a single CFMEU agreement:
You say you had authority from the BLF to negotiate on their behalf?---I'm saying that we had a joint model and I was negotiating what I believe was a joint model.
Yes or no, Mr Close, did you have authority to negotiate on behalf of the BLF
---Yes. I don't believe that any meetings that I attended with you Dean that I said that I was representing my division only and that's what my affidavit says 3.
[12] Unlike Mr Close, Mr McQueen, an Industrial Officer for the C&G Divisional Branch, had knowledge of the BLFQ negotiating in respect of its callings:
Over the course of those meetings what was your understanding of the framework within which you were negotiating; that is, were you negotiating an agreement that consolidated the callings of the two Queensland divisional branches or was it in respect of your CNG branch, divisional branch only?---No, what I was aware of, your Honour, that it was a CFMEU document. I was aware that Mr Crank was meeting with - had had some discussions with Westfield. I wasn't totally around obviously what was discussed in those meetings. I knew Kevin was obviously discussing in relation to them obviously their callings, their rates of pay, whatever obviously the BLF had that was of interest to them in relation to that agreement. I had a conversation with Mr Crank about obviously that he was meeting with the company.
What part of the year was that, in the first half of the year?---No, I think that discussion Kevin and I had on the phone was around April as well and I'm not sure obviously the full extent of obviously Kevin's - what the discussions were but I know Kevin had told me he was meeting in relation to their wages and that that concerned their callings.
You knew that from about April going forward?---I believe it was April, your Honour. 4
[13] Mr Crank, Industrial Relations Manager for the BLFQ claimed that when he was involved in negotiations with the Employer he was negotiating in the context of there being one agreement covering the CFMEU (and being the Queensland divisional branches):
Did each of those meetings comprise a discussion about a proposed agreement?
---Yes, it did, your Honour, it consisted essentially of Westfield particularly as represented by Mr Cameron raising objections to the agreement that I had emailed him, which is before your Honour, and us responding to those objections without consideration of them.
Do you want to give any further evidence in relation to meetings and the content of those meetings, other than that I'll just ask Mr Cameron to cross-examine?
---Also, your Honour, at no stage did I say we were seeking an agreement only for our branch. We were - I was at all times seeking an agreement for the CFMEU. 5
[14] Despite this, Mr Crank met separately from the other Divisional Branch and was not aware of any differences in the claims the two Divisional Branches were making:
Your meetings that you attended with the company you were never alone, I mean in terms of there were only employees of the BLF or delegates of the BLF?---Yes.
Were you aware that the clauses you were requesting, not just the wage rates but the other clauses that you were requesting were different than your other divisional branch?---No, I'm not aware that the other divisional branch was seeking any different wages or conditions for employees of Westfield.
Were you aware that we were having discussions with the CFMEU?---I was. 6
[15] Mr Crank’s written statement upon which he relied included his comment to the Employer (on 4 May 2011) that as a result of a dispute over the inclusion of a sub contractor and labour hire clause (the resolution of which would require a meeting between the State Secretaries of both Divisional Branches and a more senior representative of the Employer):
“I said we’re heading back towards a joint agreement (i.e. an agreement supported by both branches of the CFMEU) and that Irving, Hanna and Ravbar could all meet together.”
[16] This comment presupposes that there had been discrete negotiations (by the two Divisional Branches) to that point in time (May 2011). The comment does not demonstrate that the discrete negotiations, as a matter of fact, ceased at that point or that they were in fact re-directed “back towards a joint agreement”. The actual context of the comment is difficult to discern, in any event.
[17] Mr Crank appeared to contend (by submission by way of his cross examination of Mr Dean Cameron - which is set out below 7 ) that the only written document presented to the Employer was the document he (or the BLFQ) had provided to it, and that the document represented the claims on behalf of the CFMEU proper, and that any other comment (such as that which was promulgated in any iterations with the C&G Divisional Branch) was a Westfield document that had no standing as a CFMEU claim. Consequently, the BLFQ’s claim was that its negotiations represented the CFMEU’s negotiations in totality for purposes of the application before me.
[18] Mr Crank put it this way in his closing submissions:
There is only one agreement being pursued with Westfield in the present EBA negotiations that have been going on throughout this year. That proposed agreement has been put in writing by the CFMEU, by me as the representative of the CFMEU to the company. The evidence is that that is the only written proposal put by any representative of the CFMEU to the company. There is another proposal that has been discussed in negotiations but that is a proposal of the employer, not a proposal of the unions for an enterprise agreement with Westfield. There is only one proposal by the CFMEU and as I say that is the one emailed by me to Mr Cameron that is an exhibit to his evidence.
There is constant claim by Westfield in this matter that we wanted two agreements, but when we get down to it through their evidence that is purely an assumption on their part based on what they say is our behaviour and the behaviour that they refer to is simply the fact that there were different CFMEU representatives of different branches attending different meetings. The fact that different representatives of a union attend meetings for negotiations for an enterprise agreement is not unusual and certainly no basis for finding that we are not genuinely trying to reach agreement. No law which says the same person or persons must attend every meeting from a bargaining representative throughout the entire course of negotiations for an enterprise agreement. 8
[19] Mr Dean Cameron, who represented the Employer in negotiations in his capacity as an employee of the Queensland Master Builders Association, contended that he participated in separate negotiations with both Divisional Branches and in both contexts the parties negotiated on the basis of different documents which concerned different terms and conditions:
THE SENIOR DEPUTY PRESIDENT: Mr Cameron, you have attended various meetings with either or both of the divisional branches in relation to a proposed agreement in respect of Westfield?---Yes, your Honour, I have attended different meetings with each divisional branch, I have never attended a meeting with both divisional branches.
How many meetings have you had with each divisional branch?---Approximately three with each, your Honour.
How would you describe each of those meetings in terms of their focus and the extent to which they have been substantively concerned with key matters relating to an agreement?---All six meetings were very much focused on the agreement, certainly our negotiations with the CFMEU Construction Division, Mr Close and Mr McQueen were very productive and we developed a document with many changes to it, concessions by both sides and we had a lock of heads in relation to the sub-contractors clause and my understanding is that agreement only applied to the trades workers, it did not apply to the labourers because I was involved in a second series of negotiations with Mr Crank who had a number of different clauses and entitlements and claims and those negotiations were quite difficult. We were working off two separate documents I should say, your Honour 9.
[20] Mr Zilverschoon, Project Manager for the Employer, gave corroborating evidence as to the two stream negotiation process:
You are telling me you don't have a copy of this alleged proposal from the other branch, you don't recall who sent it to you or when, is that what you're saying?
---No, what I'm saying is I had several meetings, some of which were attended by the BLF without the CFMEU and some of which were attended by the CFMEU without the BLF. It was quite clear by that action from both the CFMEU and the BLF that they were pursuing separate agendas.
The fact that there were separate meetings with representatives of the branches made you assume that we wanted different agreements, is that correct?---I didn't assume anything, it was quite clear from the behaviour of the various representatives that that was the case.
Do you agree that no representative of the CFMEU of either branch of the CFMEU ever said we want separate agreements, that's correct isn't it?---I don't think anybody actually said we want separate agreements, if they are the words you are asking me to recall I don't specifically recall those words, however I do recall that I was subject to meetings by separate people from separate divisions and at no time was there any indication that there was unity between those divisions. 10
[21] Mr Cameron’s evidence was that the Employer was subject to two negotiation processes. One process involved the C&G Divisional Branch. This negotiation process focussed upon the development of a draft agreement by way of iterations between the C&G Divisional Branch and the Employer. The Employer appears to have provided the basic framework for the agreement that was in the process of being developed. Mr Cameron was of the view that the C&G Divisional Branch was open to an agreement that would have application to both the above named Divisional Branches, but that the BLFQ was pursuing an agreement in relation to its own callings through a second negotiation process. Because of this conduct, the first process was narrowed in its application to the C&G Divisional Branch callings. 11
[22] Mr Cameron’s further evidence was that the claims made in the two sets of meetings by the two Divisional Branches were different.
I assume from what the earlier evidence has been that - yes, here it is, that there were key allowance and wage increase differences were there?---Yes, your Honour, I have also sent to the parties a further attachment which articulates some of the monetary differences between the two proposals, the two union claims which were circulated to the industry at large and many of those changes or differences were experienced by Westfield in relation to the Westfield negotiations specifically, incorporated instruments would be an example. The CFMEU were happy to remove the state award and rely on the national award, whereas the Builders Labourers Divisional Branch was not happy to remove the state award and rely solely on the national award. Superannuation, the two different unions had different approaches in relation to the superannuation and it was only through negotiation that - there was many negotiations over that in relation to both the calculations on the amount and also in relation to what fund or funds were permitted to the members for the payments to be made, i.e. Cbus versus Buss(Q). Hours of work and RDOs, the two different divisional branches were promoting different flexibilities and different arrangements, to the extent that there were two different RDO calendars being circulated which became quite ridiculous. Allowances, both divisional branches had their own site allowance which is a major component of the cost structure to these agreements and the allowances were quite different between the two, there was no recognition between the two at all, you couldn’t marry them up at all. The BLF one was much more detailed, it had narrower banding whereas the CFMEU one had broader banding and I think higher rates. Dispute resolution processes or procedures, the CFMEU were happy to go to Fair Work Australia whereas the BLF were adamant about having private arbitration through the QIRC. Consultative provisions, procedures were different. Disciplinary procedures were different and union delegates access and rights were also different, to name a few, your Honour. 12
[23] Though there was some minor qualification of the above claims in relation to superannuation, the differences in these terms and conditions between the so-called CFMEU claim and the BLFQ claim were set out in Annexure 1 to Exhibit MBA 1. The wage claims in the so-called CFMEU claim, for example, were 2.5% for the first year and then 5% for the remaining years. The BLFQ claim, by comparison, was 3% in the first year and then 6% for the remaining years. The documents tendered show differences in the wage increases (at least at the point of their respective evolution).
[24] According to Mr Cameron, the CFMEU rates that were included in the draft document as tendered had arisen out of the iterations between the Employer and the C&G Divisional Branch. The C&G Divisional Branch did not cross examine on this point, though the evidence went directly to its negotiations with the Employer for a proposed agreement.
[25] It appears to me from the evidence that there are three different constructions of the negotiations that took place. Firstly, Mr Close contends that he was negotiating a CFMEU-wide agreement, was concerned about the non-appearance of the BLFQ for that reason, but had authority to negotiate on its behalf nonetheless.
[26] Mr Crank contends that the BLFQ was negotiating for the CFMEU-wide agreement and had put forward the only CFMEU claims in the form of a proposed agreement.
[27] Mr McQueen contends that each Divisional Branch was negotiating in respect of its own callings and that the separate negotiations should be taken as elements of the one negotiation stream, or parallel streams that were intended to merge together at an undisclosed point in time.
[28] There was wide evidence led in the course of the proceedings.
[29] Mr Cameron tendered two annexures to his Exhibit MBA1. The first annexure concerned documentation arising from negotiations with the BLFQ. That documentation included a draft agreement that included the following provisions:
- A title page that referred to the CFMEU;
- A clause titled Parties Bound and Covered, which referred only to the BLFQ;
- Reference to the Building and Construction Industry Award - State 2003;
- Classifications that included the carpentry trade (CW3); and
- A signature bloc that provided for the signature of the BLFQ only (apart from the employer).
[30] The documentation tendered also referred to feedback provided to the BLFQ. Amongst a range of other relevant concerns, this feedback sought clarification as to whether the proposed agreement the BLFQ had provided was intended to extend its coverage more widely than the callings of the BLFQ.
[31] The second annexure included a draft agreement that arose from discussions with the C&G Divisional Branch. That draft agreement included provisions such as:
- A title page that referred to the C&G Divisional Branch only;
- A Parties Bound and Covered clause that referred only to the C&G Divisional Branch only;
- Reference to the Building and Construction On-Site Award 2010 only;
- A Limited signature bloc referring to the C&G Branch only.
[32] The two documents referred to above included different wage increases in their final out years (as earlier alluded to).
[33] I note these are only two draft agreements and as such are open to change and amendment and do not represent a concluded set of terms and conditions. While issue was taken by the BLFQ about the ownership, as it were, of the draft agreement that was subject to discussion between the C&G Divisional Branch and the Employer, that issue does not arise in respect of the draft agreement that was the subject of discussions between the BLFQ and the Employer. In that latter case, the draft agreement had been provided by the BLFQ.
CONSIDERATION
[34] The evidence in this matter does not all go in one direction, but it is sufficient in my view to enable me to conclude that the Employer faced a situation in which there was, at the very least, a confused and confusing approach to the negotiation process. The circumstances were such that the Employer reasonably came to the view that it was necessary to negotiate different agreements with each of the two different Queensland Divisional Branches of the Construction and General Division of the CFMEU.
[35] I have reached this conclusion because I do not think it is possible to reconcile the evidence of Mr Close, Mr McQueen and Mr Crank as to the purposes of the negotiations in which they were involved with the Employer. Mr Close - the Assistant State Secretary of the C&G Divisional Branch - knew nothing about the BLFQ’s discussions with the Employer; Mr McQueen - an Industrial Officer within the same C&G Divisional Branch - knew the BLFQ was negotiating in relation to its callings; while Mr Crank contended that the BLFQ’s proposed agreement, and the terms and conditions therein, represented the only CFMEU position and he was negotiating the actual CFMEU agreement.
[36] I cannot resolve Mr Close’s evidence with Mr McQueen’s, nor can I reconcile reasonably the position of either of those persons with Mr Crank’s position.
[37] Mr Close - on the evidence - appears to have been negotiating within a single process with the Employer for purposes of a consolidated agreement covering both Divisional Branches (and within which he was authorised allegedly to negotiate on behalf of the BLFQ). Mr McQueen saw the process he was in as being only one facet of a bifurcated set of negotiations, in which the two Divisional Branches separately negotiated in respect of their discrete callings (but for the purposes of an eventual consolidated agreement).
[38] It is inexplicable that Mr Close and Mr McQueen could have different views from within the one Divisional Branch as to the purpose of the negotiation process and how the BLFQ was situated in respect of that process. The only explanation is that they approached the negotiating process in a confused state of mind and\or that the approaches to negotiating with the one Employer had not been agreed or planned between the two Divisional Branches.
[39] Mr Crank of the BLFQ said he was negotiating on behalf of the CFMEU itself (the BLFQ and the C&G Divisional Branch in effect). This is a position that is incompatible with the positions put by Mr Close and Mr McQueen. Why would Mr Close be negotiating a CFMEU agreement and be authorised (allegedly) to do so on behalf of the BLFQ if the BLFQ itself was representing the CFMEU for purposes of reaching a CFMEU agreement by way of a separate stream of negotiations with the Employer?
[40] Mr McQueen’s evidence is wholly incompatible with that of Mr Crank (and vice a versa). Mr McQueen was of the view the BLFQ was negotiating in respect of its own callings alone, and this would at some point marry up with the process in which the C&G Divisional Branch was participating, not replace or supplant it (as Mr Crank’s evidence suggested).
[41] The wider evidence - which I have set out above - also lends some support to the conclusion the two Divisional Branches had adopted a negotiating posture which confused their intentions, claims and identities. The BLFQ’s proposed agreement suggested (at least) it eventually sought to be covered by the agreement in its own right, which led to the Employer attempting to clarify its status. 13
[42] These matters are compounded by the fact that the two Divisional Branches at no time acted demonstrably in unison. They never sought a consolidated set of arrangements that removed the ambiguity and confusion (about their objectives, the application of the agreement, and the terms and conditions sought) that had arisen as a result of their respective approaches to the negotiating process with the one employer.
[43] Section 443(1)(b) of the Act requires that a protected action ballot must be made in relation to a proposed enterprise agreement, where the application has been made under s.437 of the Act and when 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.
[44] I am of the view, firstly, that an order cannot be made “in relation to a proposed enterprise agreement” (as s.437 of the Act requires) as the Applicant has not satisfied me that such “a” proposed enterprise agreement was the subject or focus of the negotiations that took place separately between the Employer and the two Divisional Branches.
[45] Rather, the evidence before me demonstrates that the conduct of the Divisional Branches was not in relation to “a proposed enterprise agreement” at all, and the application before me cannot be said to be in relation such an agreement as a consequence. The various representatives of the Divisional Branches appear to have held different views when negotiating with the Employer about the nature of the negotiations in which they were involved, how the negotiations by one Divisional Branch related to the other, and what the object of those negotiations might have been. It is no surprise that the Employer queried the BLFQ as to its status and intentions in relation to the proposed agreement it had presented to the Employer.
[46] Further, where the conduct and approaches of the two Queensland Divisional Branches has been such as to inject ambiguity and uncertainty (at multiple levels) into the negotiation process, I am not satisfied that it could be concluded that the applicant (which is the CFMEU itself) “has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted” (in relation to the apparent proposed agreement).
[47] It appears to me that in order to be genuinely trying to reach agreement the negotiating officials, representing the same bargaining representative in this instance, owe (amongst other things) an obligation to the Employer to provide a reasonable degree of certainty as to their identity, relationship and purpose, and some measure of clarity, at least, in respect of their claims in and throughout the negotiating process. The evidence adduced in this matter demonstrates that this obligation was not fulfilled, and as a consequence, the Employer was left to navigate as it could a confusing course of competing representations and claims.
[48] For the reasons I have set out above in the context of the body of evidence before me, I therefore dismiss the application under s.437 of the Act as made by the CFMEU for reason that the application is not compliant with the requirement of s.443 of the Act.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms A. Heffernan, Mr J. McQueen and Mr K. Crank for the Applicant.
Mr D. Cameron for the Respondent.
Hearing details:
2011.
24 and 25 October.
Brisbane.
1 Transcript of proceedings, 25 October 2011, PN 38.
2 Ibid at PNS 103-105 and 100-101.
3 Ibid at PNS 73-75.
4 Ibid at PNS 122-124.
5 Ibid at PNS 167-168.
6 Ibid at PNS 189-191.
7 Ibid at PNS 283-294.
8 Ibid at PNS 376-377.
9 Ibid at PNS 207-209.
10 Ibid at PNS 327-329.
11 Ibid at PNS 283-294.
12 Ibid at PN 211 and Annexure one to Exhibit MBA-1.
13 Annexure 1 to Exhibit MBA-1.
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