Mining and Energy Union v Wilpinjong Coal Pty Ltd

[2024] FWC 3104

[2024] FWC 3104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 437—Protected action

Mining and Energy Union
v

Wilpinjong Coal Pty Ltd

(B2024/1446)

COMMISSIONER SLOAN SYDNEY, 13 NOVEMBER 2024

Proposed protected action ballot of employees of Wilpinjong Coal Pty Ltd

1. Wilpinjong Coal Pty Ltd (“Wilpinjong”) is bargaining with some of its employees for an agreement to be known as the Wilpinjong Coal Mine Enterprise Agreement 2024 (“Proposed Agreement”). The Mining and Energy Union (“MEU”) is a bargaining representative for some of the employees to be covered by the Proposed Agreement.

2. On 7 November 2024, the MEU applied to the Commission for a protected action ballot order, under s 437 of the Fair Work Act 2009 (“Act”).[1]

3. Wilpinjong objected to the application. It contended that the Commission could not be satisfied that the MEU had been, and was, genuinely trying to reach an agreement with Wilpinjong, as required by s 443(1)(b).[2]

4. I conducted a hearing of the matter on 11 November 2024. At the conclusion of the hearing, I informed the parties that I was satisfied that the MEU had been, and was, genuinely trying to reach agreement with Wilpinjong in respect of the Proposed Agreement. I stated that as the requirements of s 443(1) were met, I was required to make a protected action ballot order and that such an order would issue. I told the parties that the reasons for my decision would follow.

5. These are those reasons.

Relevant legal principles

1. The principles to apply when considering the requirements of s 443(1)(b) were not in dispute and are well known. In summary, they are as follows:

a.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. This will frequently involve considering the extent of progress in negotiations and the steps the applicant has taken to try and reach an agreement. The Commission would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking to have included in the agreement, and to have provided a considered response to any demands made by the other side.[3]

b.The question involves a temporal element. This follows from the use of the past tense (“has been”) and present tense (“and is”) in s 443(1)(b). The Commission must be satisfied that the applicant had been trying to reach an agreement prior to the time of determination and is continuing to do so at the time of the determination.[4]

c.The applicant bears the onus of establishing that it has been and is genuinely trying to reach an agreement.[5]

The evidence

1. The MEU relied on statements from Robert Timbs, the President of the South Western District of the MEU, and Mark Jenkins, the Vice President of that District. Wilpinjong did not object to those statements being accepted into evidence. It did not cross-examine either witness.

1. Wilpinjong relied on a statement by Ignatius du Preez, the Human Resources Manager at the Wilpinjong Coal Mine. The MEU raised no objection to the statement. Mr du Preez was cross-examined.

1. The evidence revealed the following:

a.Wilpinjong initiated bargaining in respect of the Proposed Agreement on 1 March 2024, when it issued a notice of employee representational rights.

b.The MEU has members employed by Wilpinjong who will be covered by the Proposed Agreement. It is a bargaining representative for the Proposed Agreement.

c.Nine bargaining meetings occurred between 20 March 2024 and 21 October 2024.

d.The MEU was present at each of the bargaining meetings.

e.Mr Timbs attended four of those meetings. On two occasions he was accompanied by Craig Carberry, the Vice President of the Western Region of the MEU’s South Western District and by Les Schefe, an Organiser. In one meeting he was accompanied only by Mr Schefe and in another only by Mr Carberry. Mr Jenkins also attended four meetings. At two he was with Mr Carberry and at the other two with Mr Schefe. Mr Carberry attended one meeting on his own.

f.During the meetings, the MEU engaged in meaningful discussions with Wilpinjong and the employee bargaining representatives regarding the MEU’s claims and those of Wilpinjong and the other bargaining representatives.

g.Between some of the meetings, the MEU consulted with its members regarding the matters arising in the negotiations.

h.The MEU demonstrated a willingness to offer concessions on its position. This was reflected in particular in a “position paper” which the MEU provided to the other bargaining representatives on 22 October 2024.[6]

1. The bargaining continues. A further bargaining meeting has been scheduled.

The basis of Wilpinjong’s objection

1. Wilpinjong’s contention that the MEU had not been, and was not, genuinely trying to reach an agreement with it rested on two broad contentions. First, that the MEU had sent different representatives to the bargaining meetings. Wilpinjong argued that the conduct of the MEU’s representatives at the meetings suggested a “lack of internal communication” at the MEU. It submitted that the inconsistency in representation “has meant that progress in [the] bargaining meeting[s] has been materially delayed”.

1. Second, Wilpinjong submitted that the MEU had been unable to attend bargaining meetings with an “endorsed mandate” from its members. It contended that this demonstrated that the MEU had not been, and was not, genuinely trying to reach an agreement.

1. I was not persuaded by these submissions for several reasons.

1. In the first place, I did not consider that they were properly borne out by the evidence. On the issue of MEU representation at the bargaining meetings, Mr Carberry was present at six meetings, Mr Schefe at five and Mr Timbs and Mr Jenkins at four each. There was not the variation in attendees that Wilpinjong’s submissions suggested. Even if the change of people “at the table” caused a loss of momentum – which to my mind seemed limited – the MEU’s evidence explained why certain of its representatives had been unable to attend some of the meetings and needed to be replaced.

1. As to the alleged inability of the MEU to obtain a mandate from its members, Mr Timbs gave evidence that early in the negotiations he had requested that Wilpinjong provide complete details of the changes that the company sought to make to the terms of the existing enterprise agreement. He said that he had explained to the company that he would need that information to go back to the MEU’s members. Mr Timbs stated that this information was not provided until 10 June 2024. On that day, Mr du Preez sent him an Excel spreadsheet which set out in detail Wilpinjong’s response to the MEU’s claims and the changes sought by the company.[7] Wilpinjong did not challenge this evidence.

1. In his statement, Mr du Preez appeared to criticise the MEU for attending a bargaining meeting on 12 June 2024 without a response to Wilpinjong’s position or a mandate from its members. This is hardly fair criticism where the MEU had only been provided with the company’s position two days earlier. This is especially the case where the MEU had apparently made it clear to Wilpinjong that it could not obtain the necessary mandate without knowing the company’s position.

1. Importantly, Mr Timbs stated that after the meeting on 12 June 2024, Mr Carberry and Mr Schefe conducted shift meetings with the MEU’s members. He said that they “got a mandate and full log of claims with remuneration included”. Again, Wilpinjong did not challenge this evidence.

1. MEU submitted, and I accepted, that there is nothing unusual about a union requesting time to consult with its members during bargaining. There was no evidence that Wilpinjong raised any objections or concerns at the time the MEU made such a request. There was similarly no evidence that the MEU’s request was for any purpose other than to seek to reach agreement.

1. The second, and arguably more significant, reason for which I did not accept Wilpinjong’s contention is that its case did not rise much higher than expressing a grievance as to delays in the bargaining process and the lack of progress made in reaching an agreement.

1. For the reasons I have already given, I was not satisfied that there was any undue delay in the MEU seeking a mandate from its members. I was also not persuaded that any changes in MEU representation caused material delays. Further, the MEU demonstrated that it was not responsible for all of the delays between bargaining meetings. On several occasions Wilpinjong had requested that meetings be postponed.

1. But even were I to have found that the MEU had been responsible for the delays claimed by Wilpinjong, it would not have been enough. Wilpinjong largely accepted at the hearing that the concerns that it had raised went more to the efficiency of the bargaining process. In effect, it sought that an inference be drawn – put simply, that if the MEU was genuinely trying to reach an agreement, it would not go about bargaining in such an inefficient manner.

1. As I have stated, I did not consider that the factual premise on which to draw such an inference was made out. In any event, it is not one which I would lightly draw. Any criticism that Wilpinjong might level at the MEU’s management of the bargaining process does not rise to the point of calling into question the genuineness of its attempts to reach agreement.

1. Finally, Mr Timbs stated that the MEU “remains available to meet the Respondent to progress bargaining for the proposed enterprise agreement”. Wilpinjong did not challenge that evidence.

1. In fact, Mr du Preez gave evidence that might be regarded as consistent with Mr Timbs’s statement. He stated that after a bargaining meeting on 21 October 2024, “there was agreement between the parties that at the next bargaining meeting, each party would present their final positions with a view that the agreement would then go to a vote”. This was inconsistent with Wilpinjong’s assertion that the MEU was not genuinely trying to reach agreement.

Conclusions

1. Overall, I was satisfied that the MEU had met its onus to demonstrate that prior to the hearing it had been, and as at the date of the hearing it was, genuinely trying to reach an agreement with the Wilpinjong in respect of the Proposed Agreement. I found that the objections raised by Wilpinjong did not amount to more than frustration at the lack of progress to reach agreement. But a failure to reach agreement is not necessarily to be equated with an unwillingness to do so.

1. This finding led me to conclude that the requirements of s 443(1) had been met. Consequently, I was required by that provision to make a protected action ballot order, as sought by the MEU.

1. I communicated this conclusion to the parties at the end of the hearing. Having regard to that conclusion, Wilpinjong had no objection to a protected action ballot order being made in the terms sought by the MEU.

1. The MEU’s proposed order provided for the ballot to be conducted by the Australian Electoral Commission. It further provided that the date by which voting in the ballot is to close is 23 December 2024. I was satisfied that this date would enable the ballot to be conducted as expeditiously as possible, as required by s 443(3A). I determined that it was appropriate to make a protected action ballot order in the terms sought by the MEU, and I did so in <PR781115>.

1. This matter will be the subject of a compulsory conciliation conference before me pursuant to s 448A. Directions and a Notice of Listing for that purpose will be issued separately.

COMMISSIONER

[1] All references in this decision to legislative provisions are to provisions of the Act

[2] It was not in dispute that an application had been made under s 437, satisfying the requirements of s 443(1)(a)

[3] See Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407; [2009] FWAFB 368 at [31]-[32], approved in Esso Australia Pty Ltd v AMWU & Ors[2015] FWCFB 210 at [35] and [57]

[4] Coles Supermarkets (Australia) Pty Ltd v Australasian Meat Industry Employees Union[2015] FWCFB 379 at [45]

[5] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Kraft Foods Limited[2010] FWA 4404 at [34]

[6] This was attachment MJ1 to Mr Jenkins’s statement. It is not necessary to go into the detail of that document.

[7] This spreadsheet was attachment BT3 to Mr Timbs’s statement

Printed by authority of the Commonwealth Government Printer

<PR781114>