Mr Ejaz Ali v Como Glasshouse No2 Pty Ltd
[2017] FWC 4025
•2 AUGUST 2017
| [2017] FWC 4025 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
National Union of Workers; Mr Ram Krishna Sharma; Mr Umeed Ali Mahrie; Mr Ejaz Ali
v
Como Glasshouse No2 Pty Ltd
(B2017/631)
DEPUTY PRESIDENT COLMAN | MELBOURNE, 2 AUGUST 2017 |
Proposed protected action ballot of employees of Como Glasshouse No2 Pty Ltd.
[1] This decision relates to an application made on 26 July 2017 by the National Union of Workers (NUW), Mr Ram Sharma, Mr Umeed Ali Mahrie and Mr Ejaz Ali for a protected action ballot order (Application).
[2] Shortly after the Application was filed, the company respondent, Como Glasshouse No2 Pty Ltd, advised the Commission that it opposed the Application and wished to be heard. The matter was listed for hearing on Friday 28 July 2017 in Melbourne.
[3] Ms Caterina Cinanni, who is the NUW’s National Campaign Director for the Food Industry, gave evidence in support of the Application, as did each of the individual applicants. They were crossed-examined by the company’s representative. No evidence was led by the company.
[4] The focus of the company’s opposition to the Application was the role of the individual applicants. The company contended that they had not been, and were not, genuinely trying to reach agreement with the company in respect of a proposed enterprise agreement, and that they had not been properly appointed as bargaining representatives. The company did not contest that the NUW had been, and was, genuinely trying to reach agreement.
[5] At the conclusion of the hearing, I directed the parties to file any final submissions by the close of business on Monday 31 July 2017. I indicated to the parties that I would endeavour to determine the matter as soon as possible after that date, mindful of the requirement in s441 of the Fair Work Act 2009 (Act) that, as far as practicable, the application be determined within two working days. The parties filed submissions in accordance with the directions. 1
Statutory framework
[6] Section 437 of the Act enables a bargaining representative, or ‘two or more bargaining representatives (acting jointly)’, to apply for a protected action ballot order.
[7] Subject to the restrictions in s437(2A) and s438 (which are not presently relevant), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s443. Section 443 provides:
“443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).”
[8] Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided by reference to all of the circumstances of the bargaining in question.2 It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.3 There are two temporal components to s443; the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement.
Background and evidence
[9] The company operates a facility at Germantown Road, in Two Wells, South Australia. On 7 July 2016 the NUW made an application in the Commission for a majority support determination. The matter was heard before Commissioner Ryan. On 18 October 2016, the Commission issued a majority support determination that a ‘majority of glasshouse and packhouse employees, excluding supervisory, administrative and salaried employees, engaged at Como Glasshouse No 2 Pty Ltd T/A D’VineRipe …. want to bargain with D’VineRipe for an enterprise agreement.’ 4
[10] Ms Cinanni filed a statutory declaration in support of the Application and gave evidence at the hearing. She said that in February 2017, the NUW and the Company commenced bargaining for a proposed enterprise agreement and that on 24 February 2017, the NUW served on the Company a log of claims.
[11] Her evidence was that since that time, six meetings have taken place to discuss the proposed enterprise agreement, namely on 24 February, 17 March, 21 April, 9 May, 6 June and 19 July 2017 (bargaining meetings). Ms Cinanni attended all but one of these meetings, 5 together with Mr Sharma, Mr Umeed Ali and Mr Ejaz Ali.
[12] Ms Cinanni’s evidence addressed the most recent enterprise bargaining meeting on 19 July 2017. At this meeting, she and the individual bargaining representatives requested a written response from the company and/or a further meeting to discuss outstanding claims within a week. The company responded that it would not be in a position to meet until the week of 7 August 2017. It did not indicate when it would be able to respond in writing. 6
[13] Ms Cinanni said that the issues on which the parties remain apart include casual conversion to permanent employment, remuneration, rostering, paid breaks, representational rights and job security. 7 Her evidence was that the NUW is and has been genuinely trying to reach agreement with the company.8
[14] Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma each filed statutory declarations in support of the Application, 9 and gave evidence at the hearing.
[15] Each of them stated that he had been appointed as a bargaining representative for certain employees in respect of a proposed enterprise agreement with the company. 10 Each of them stated that he had been, and was, genuinely trying to reach agreement with the company in relation to the proposed agreement.11 They also stated that they sought to ballot employees for whom they were a bargaining representative, to determine what if any industrial action those employees wished to take in support of their claims for the proposed agreement.12
[16] They also gave evidence at the hearing that each of them had appointed themselves as a bargaining representative. 13 The instruments of appointment state that they took effect from 18 February 2017.14
Company’s objections
[17] In its correspondence to the Commission dated 26 July 2017, the company raised three objections to the Application. First, the company contended that the three individual bargaining representatives had not been validly appointed.
[18] Secondly, it contended that the applicants were not, and had not been, genuinely trying to reach agreement pursuant to s443(1)(b) of the Act. At the hearing, the company narrowed this contention such that it applied only to the individual bargaining agents. It accepted that the NUW was, and had been, genuinely trying to reach agreement. 15
[19] Thirdly, the company submitted that the terms of the draft order were not sufficiently clear or included matters that did not constitute industrial action. However, this submission was not pressed at the hearing. The company confirmed that it had no concern in relation to the specificity of the questions proposed by the draft order. 16
[20] In its written submissions, the company elaborated on its contentions that the individual bargaining agents had not been properly appointed, and that they had not been, and were not, genuinely trying to reach agreement with the employer.
Appointment of individual bargaining agents, standing
[21] The company contended that Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma did not have standing to make the Application, as they had not been validly appointed as bargaining representatives under s176 of the Act.
[22] Section 176(1)(c) provides that a person is a bargaining agent of an employee who will be covered by the agreement if the employee ‘appoints, in writing, the person as his or her bargaining representative for the agreement’.
[23] Section 178(1) states that an appointment of a bargaining representative ‘comes into force on the day specified in the instrument of appointment’.
[24] Section 178(2) provides that a copy of the instrument of appointment of a bargaining representative ‘must be given to the employee’s employer’.
[25] The Explanatory Memorandum to the Fair Work Bill provides:
‘721. Subclause 178(2) requires an employee to give a copy of the instrument of appointment of a bargaining representative to his or her employer. This process ensures that the employer knows who the bargaining representatives for the proposed agreement are and is consistent with the duty bargaining representatives have to abide by the good faith bargaining requirements set out in clause 228(1).’
[26] There were several dimensions to the company’s contention that the individual bargaining representatives had not been validly appointed.
Dates of appointment
[27] Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma were appointed as bargaining representatives by various employees on different dates throughout June and July 2017. 17 At the hearing, the applicants tendered the notices of appointment of bargaining representatives. These documents are in tabular form, and include columns for employees’ full names, their signatures, and a date next to the signature. Each page is entitled ‘Notice of Appointment of Bargaining Representative’. It then states, above the table:
‘We, the undersigned …. hereby appoint [the name of Mr Ejaz Ali, Mr Umeed Ali, or Mr Sharma is inserted in bold] as our bargaining representative under section 176 of the Fair Work Act 2009 in relation to the proposed D’Vine Ripe Enterprise Agreement 2016.’
[28] In respect of Mr Sharma, there are twelve such pages, signed by a total of 33 employees, with dates appearing next to their signatures. In the case of Mr Ejaz Ali, there are five pages, bearing the names and signatures of 20 employees, together with dates next to the signatures. In the case of Mr Umeed Ali, there are eleven sheets, with 49 names, signatures and dates.
‘Retrospective’ dates
[29] The company submitted that the notices of appointment of bargaining representatives provided invalid, ‘retrospective’ dates of operation. By ‘retrospective’, the company meant that the notices predated the company’s receipt or awareness of them.
[30] The company contended that it did not receive the instruments of appointment of the individual bargaining representatives until they were handed to a company representative at the most recent bargaining meeting of 19 July 2017. The company did not lead evidence about this. However, Ms Cinanni’s evidence appears to confirm that this was the date on which the individual instruments of appointment were handed to the employer by the individual bargaining representatives. 18
[31] The company contended that an appointment of an employee as a bargaining representative cannot ‘take place’ on a date before the notice is given to the employer, because it is a mandatory requirement that a copy of the instrument of appointment be given to the employer, pursuant to s178(2)(a). 19 It argued that the notices of appointment were invalid because they did not ‘provide a valid date’.20
No specified date
[32] The company also submitted that the instruments of appointment in the present case do not specify a day on which they come into effect. It said that the instruments could only be said to comply with s178(1) if they are read as intending the appointments to come into force, in respect of each employee listed, on the date that appears next to their signature. The company said that no such intention was evident on the face of the documents. It contended that a notice of appointment should distinguish between the date it is signed and the date it will come into force, or otherwise make clear that the date indicated is the date on which the appointment takes effect. 21
Invalidity because of non-compliance with s178(2)
[33] The company submitted that, in any event, the instruments of appointment in this case were invalid because they were not given to the employer, in satisfaction of the mandatory requirement in s178(2). It says that in the present case, instruments of appointment were provided to the employer on 19 July 2017, one week after the most recent signature, and five months after the first (those being the instruments of self-appointment of Mr Ejaz Ali, Mr Umeed Ali, and Mr Sharma). 22
Mr Umeed Ali’s self-appointment notice
[34] The company also submitted that Mr Umeed Ali’s notice appointing himself as a bargaining agent was backdated. Under cross examination, Mr Ali said that he signed the form when he came back from overseas in late February, and inserted the earlier date of 18 February 2017, 23 which aligned with the dates on which Mr Ejaz Ali and Mr Sharma had signed their notices appointing themselves as bargaining agents.
Consideration
[35] I do not accept the employer’s argument that the dates of appointment are ‘retrospective’. It may be that a failure to provide a copy of the instrument to the employer has implications for the genuineness of the efforts to reach agreement, and I return to this question below.
[36] I also reject the related contentions that the appointment cannot ‘take place’ on a date before it is given to the employer; or that the instrument of appointment is only valid once it has been given to the employer. These submissions read into the statute words that are not there. The Act does require instruments of appointment to be given to the employer. However, it does not say that this is a requirement for their validity. It does not specify any particular consequence. It is not permissible simply to invent one.
[37] Section 178(1) states clearly that the appointment comes into force on the day specified in the instrument of appointment. It does not say that it comes into force on the day it is given to the employer. Again, non-compliance with a mandatory provision is a matter that can bear on discretionary considerations.
[38] I reject the contention that the notices in this case have failed to specify a day on which they come into effect. The self-appointment notices are clear on this point, stating that the appointment ‘takes effect on and from 18 February 2017’.
[39] No such words are used in the case of the other notices of appointment. However, the dates that appear next to the employees’ names and signatures are to be understood in the context of the introductory words that follow the heading on each document: ‘We, the undersigned …, hereby appoint …’ In my opinion, this is sufficient for the dates in question to constitute a ‘day specified in the instrument of appoint’ for the purposes of s178(1).
[40] I consider this conclusion to be consistent with the observations of Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No 2): 24
In my view the legislation referable to the appointment of a bargaining representative in these circumstances should be interpreted liberally. The Act is intended to be accessible to employers large and small, as well as to employees both in their own capacity and through union membership. It is intended to assist relevant parties and facilitate the processes contemplated by the Act, including negotiation of enterprise agreements. The role of bargaining representative is clearly significant, however I consider that, in relation to the circumstances relevant to such appointments, the key factor is that there be attendant certainty upon the creation of the role rather than a requirement of overt formality. So, it must be clear on the face of the relevant document that the position has been created, and a copy of that document must be capable of being given to a bargaining representative of the employee (s 178(2)). Accordingly, for example, I do not consider that reference to “instrument of appointment” in s 178(1) requires that a document purporting to record the appointment of a bargaining representative of an employer be a document of the formality of a deed under seal. Provided the appointment is made in writing, as required by s 176(1)(d), and provided it clearly evidences the creation of the role, the appointment is effective. 25
[41] In my view, the notices of appointment indicate that the undersigned employees have appointed the relevant bargaining representative on the date indicated next to their signature and that this is the date from which they are intended to be effective.
[42] Finally, in relation to the argument concerning Mr Umeed Ali’s ‘backdated’ instrument of self-appointment, it is difficult to see how as a matter of fact Mr Umeed Ali could have been regarded as a bargaining representative for himself at a time when he had not signed the instrument.
[43] It may also be that, because Mr Ummed Ali’s instrument of self-appointment did not exist on the day the appointment was specified to commence, the appointment never commenced. In that event, he would not be a bargaining representative for himself, although he could still be a properly appointed bargaining representative for the other employees, pursuant to their appointment notices. On the other hand, the earlier date indicated by Mr Umeed Ali in the instrument is still a day ‘specified in the instrument of appointment’. I incline to the view that the backdated instrument came into force on the day indicated; but that the instrument of appointment could be of little if any practical relevance in relation to the period before the date Mr Umeed Ali signed it.
[44] I note that in my view, an apparently innocent mistake of this kind, which caused no detriment to the employer, does not affect the genuineness of Mr Umeed Ali’s efforts to reach agreement with the employer.
Free from union control or influence
[45] The company contended that the appointment of the three individual bargaining representatives did not meet the requirements of Regulation 2.06, which provides:
A bargaining agent must be:
(a) free from control by the employee’s employer or another bargaining representative; and
(b) free from improper influence from the employee’s employer or another bargaining representative.
[46] The company submitted that Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma were not free from the control or improper influence of the NUW.
[47] Much cross-examination was directed at the role played by the NUW in relation to the appointment of the individual bargaining agents. The company contended in its submissions that the union led no evidence from the individual bargaining representatives as to whether their appointments complied with the Regulation. It is not clear to me that it was necessary for the applicants to lead such evidence. In any event, whilst evidence may not have been led, it was adduced. I asked each of the individual bargaining agents, at the conclusion of their evidence, whether they felt subjected to pressure or influence from any party in relation to their role as bargaining agents. They each said no.
[48] It is clear from the Application and the evidence that the NUW has worked closely with the three individual applicants. It is difficult to imagine that the three individual applicants could have put themselves forward as bargaining agents without such assistance. They speak English with difficulty and gave evidence through Hazaragi and Nepalese interpreters. The union assisted them to become bargaining agents for themselves and for other employees. So much is evident from the following exchange:
PN231
Did you indicate that they would need to get other people to sign the document?---We indicated that in terms of the bargaining process that we suggested that they should probably formalise it and that they should decide among themselves who those representatives should be. That was only a suggestion we gave. So we gave them options around the nomination and appointment of bargaining representatives. The decisions are their own to make.
[49] In my view, the evidence establishes that the union was providing significant assistance to the three individual bargaining representatives. No doubt it was doing so, at least to some extent, to strengthen its own industrial position and that of its members. Evidently there is a disagreement between the company and the union about the coverage of the union’s rules and whether it can enrol certain employees as members. For the union, having bargaining representatives negotiating on behalf of such potentially ‘beyond scope’ employees, in a way that is aligned with the union’s bargaining objectives, could ultimately make protected industrial action in support of an enterprise agreement more effective. It is possible that potentially some one hundred additional employees might be eligible to participate in protected industrial action as a result of the appointment of bargaining representatives.
[50] In my view, the scheme of the Act allows for such cooperation between bargaining representatives. If employees see it in their interests to appoint individual bargaining representatives, who coordinate their bargaining with that of a union (or other bargaining representatives), they can do so – subject to the other requirements of the Act. If a union provides assistance to employees and their bargaining representatives in such a context, this does not of itself speak of ‘control’ or of ‘improper influence’. I note that the proscription in the Regulation of ‘improper influence’ would tend to countenance some (proper) influence.
[51] In its concluding submissions, the company contends that the union was exercising improper influence by placing the individual representatives at additional legal risk; it was suggested that union influence existed, and was improper, given the individual representatives’ lack of knowledge of industrial relations law and their limited English. A reference was made to the Mr Ejaz Ali’s evidence of his understanding that, by having other employees appoint him as a bargaining representative, the document would act as ‘a petition so we could take the petition to a judge and they would allow us to demand our rights.’ 26 I rather tend to consider this statement as an indication that the witness believed that the process he was involved in was furthering his and others’ industrial interests. In my view, he understood that he was a representative of other employees, and that he was involved in negotiations for a new agreement with the company.
[52] To require bargaining representatives that they have a high level of understanding of the bargaining framework could effectively preclude participation of many employees as bargaining representatives, including the individual applicants in this matter. Such an approach would not be compatible with the objects of the Act or the object of Division 8 of Part 3-3 (which concern protected action ballots). In the latter respect, s436 states that the object of the division is to establish a ‘fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed agreement’ (emphasis added).
[53] Further, the legislation plainly contemplates that an application for a protected action ballot order can be made by two or more bargaining representatives ‘acting jointly’. This would seem to assume the potential for collaboration between bargaining representatives. Indeed, where there are multiple applicants making a single application, it is necessary to establish that they are acting jointly. Multiple applicants acting otherwise would not satisfy the requirements of s437.
[54] In this regard, I note that the statutory declarations of Mr Umeed Ali and Mr Ejaz Ali both indicate an alignment of the interests of the employees for whom they are bargaining representatives and the claims being pursued by the NUW. 27
[55] The company referred in its submissions to the decision in Application by Construction, Forestry, Mining and Energy Union, 28 and contended that the Full Bench of the Commission upheld a finding at first instance that the appointment of bargaining representatives was contrary to Regulation 2.06. I do not read the decision of the Full Bench this way. Rather, the Full Bench noted that there was ‘nothing about the appointment of the new bargaining agents that was contrary to the Act, but it was open to the Deputy President to find that this action disrupted the bargaining, altered its direction and was ongoing.’29 The Full Bench went on to note that the Deputy President considered that this weighed against a finding that the CFMEU, which had been involved in the appointment of the bargaining agents, was genuinely trying to reach agreement. I note that in the present case, the company does not contend that the NUW is not genuinely trying to reach agreement.
[56] There was some discussion at the hearing as to the role of the Commission, in the context of an application under s443, in considering whether a bargaining representative has been validly appointed. The decision of Deputy President Clancy in CFMEU v AGL Loy Yang Pty Ltd was again invoked:
[79] There is an absence of guidance as to how the legislature intended s.178(3) of the Act and regulation 2.06 to operate in circumstances where either the act of appointing a bargaining representative or a bargaining representative’s ongoing appointment is subject to challenge on the basis of a lack of the requisite independence. However, it seems to me that AGL Loy Yang seeks a form of declaratory relief in relation to the validity of the appointment of the six bargaining representatives which I am not empowered to grant. I consider that if maintained, a dispute regarding the status of the six bargaining representatives is a matter that requires resolution by a Court of competent jurisdiction.
[57] Given the legislative stricture that applications must be heard as far as practicable within 2 working days, and that the object of the Division is to establish a ‘fair, simple and democratic process’ (s436), it is unlikely that the legislature intended the Commission to conduct an exhaustive forensic analysis of the appointment process.
[58] On the other hand, an application under s437 can only be made by a bargaining representative. If it appeared to the Commission in a particular case that the applicant was not a bargaining representative, there might be no proper application before it. However, in my opinion, that is not the case in the present matter.
[59] I reject the company’s contentions that the instruments of appointment of bargaining representatives were not valid, that Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma were not free from union control or improper influence, and that they did not have standing to jointly make the Application with the NUW.
Not genuinely trying to reach agreement
[60] The company contended that the individual bargaining representatives are not, and have not been, genuinely trying to reach agreement with the company.
[61] Section 443(1)(b) states that the Commission must be satisfied that each applicant for a protected action ballot order has been, and is, genuinely trying to reach agreement with the employer. As noted earlier, whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided by reference to all of the circumstances of the bargaining in question.30
[62] The company contended that it did not know until the meeting of 19 July 2017 that Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma were bargaining representatives. The three were appointed as bargaining representatives by various employees on different dates throughout June and July 2017. 31 However, the company maintained that it did not receive the instruments of appointment as bargaining agents until 19 July 2017.
[63] The company says that this tells against a finding that the individual bargaining representatives were genuinely trying to reach agreement. It further contends that the actions of the individual bargaining agents prior to them being identified as such are irrelevant to the question of whether they have been genuinely bargaining; and that the Commission should only consider their conduct from 19 July 2017. 32
[64] I do not accept this proposition. The authorities indicate that all of the relevant circumstances of the bargaining are to be taken into account in deciding whether an applicant for a ballot order is, and has been, genuinely trying to reach agreement.
[65] I do however accept what might be the corollary of the proposition, namely that it is relevant for the Commission to take into account the bargaining representatives’ failure to identify themselves as such to the employer.
[66] Further, I consider that it is relevant for the Commission to take into account a bargaining representative’s failure to comply with s.178(2)(a) by giving the employer the notice of appointment.
[67] As to the company’s position that it was not aware of the appointment of individual bargaining representatives until 19 July 2017, the applicants’ representative contended that this position was without foundation in the evidence; 33 that the applicants did not accept assertions from the bar table; and that the evidence was to the contrary. In the last-mentioned respect, reference was made to Ms Cinanni34 evidence that the company was on notice from January 2017 that there would be bargaining representatives attending the meetings.35
[68] I accept Ms Cinanni’s evidence that the involvement of individual bargaining representatives was raised with the company in January 2017. However, although this means the company was put on notice that individual bargaining representatives might be involved in the process, there is no indication (or evidence) that it knew about the appointment of Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma as bargaining representatives. As noted earlier, Ms Cinanni’s evidence was that the notices of appointment of bargaining representatives were handed over to the company on 19 July 2017. 36
[69] I note that on 17 July 2017, Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma wrote to the Company, informing it that they supported the union’s claims. This letter was signed ‘From the glasshouse workers bargaining representatives: Ejaz, Ram, Umeed’. It may be that the company knew by 17 July 2017 that Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma were individual bargaining representatives.
[70] In any event, it appears that until a late stage in the negotiations (either 17 July or 19 July) the company did not know who had been appointed as bargaining representatives; and there is nothing in the evidence or materials filed in this matter to suggest that prior to 19 July, the company was aware of how many employees had made such appointments.
[71] In my opinion, this is not a minor or technical matter. As noted in the Explanatory Memorandum, the requirement to give a copy of the instrument of appointment to the employer ensures that the employer knows who the relevant bargaining representatives are and is consistent with the duty owed by bargaining representatives to abide by the good faith bargaining requirements. This is important information for an employer to have, in order to assess its position and bargain in good faith. In this case, the existence of some hundred employee signatures appointing the three individual bargaining representatives is a significant fact for the employer to take into account in considering its bargaining position.
[72] At the meeting on 19 July 2017, the company said that it would respond to the claims in the letter of 17 July at the next bargaining meeting in the week beginning 7 August. 37 That will be the first substantive discussion between the company and individual bargaining representatives acting clearly in that capacity. It will be the first occasion on which the employer will have responded to claims in the full knowledge of the employee support that would appear to sit behind Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma.
[73] Even leaving aside the question of the employer’s knowledge of the appointments and the number of employees, I note that the appointments of the individual bargaining representatives took effect relatively recently.
[74] All but three of the employees whom Mr Sharma represents were appointed after the fifth bargaining meeting. All but three of those whom Mr Ejaz Ali represents were appointed on the day of the fifth meeting, and the other three after that date. Of the employees whom Mr Umeed Ali represents, 38 were appointed after the fifth meeting. Accordingly, Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma have only attended one or two bargaining meetings with the employer since becoming bargaining representatives for the majority of the employees they respectively represent.
[75] I note that from 18 February 2017, Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma were genuinely trying to reach agreement with the company in their capacity as bargaining representatives for themselves. However, the Application is made by Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma in their capacity as bargaining representatives for all of the employees they represent. The order sought would cover all of those employees. Where s443 requires the Commission to be satisfied that the applicant is and has been genuinely trying to reach agreement, I consider this to mean that genuine efforts must be made by the applicant in respect of those whom it represents.
Conclusion
[76] I return to the question that s443 of the Act requires me to answer, namely whether each applicant in this matter has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[77] The company does not contest that the NUW has been, and is genuinely trying to reach agreement.
[78] I am satisfied that the NUW has been, and is, genuinely trying to reach an agreement with the employer in respect of an enterprise agreement for the purposes of s443(1)(b) of the Act.
[79] Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma gave evidence that they are bargaining representatives for various employees. Their instruments of appointment were tendered. They testified that they are trying to reach agreement with the employer for a new enterprise agreement. No evidence was led in contradiction. I accept their evidence. However, their genuine efforts to reach agreement with the employer in their capacity as bargaining representatives for the employees they represent have been recent. The employer is due to respond to their claims shortly.
[80] Taking into account all of the circumstances and the evidence in this matter, I am satisfied that Mr Ejaz Ali, Mr Umeed Ali and Mr Sharma are genuinely trying to reach agreement. However, at this point in time, I am not satisfied that they have been genuinely trying to reach agreement.
[81] Finally, the Application was made jointly by the four applicants. I consider there to be no impediment to the issuing of an order binding on the NUW, and the group of employees it represents. However, before issuing an order, I will request the union to advise my Chambers whether it seeks to have the Commission issue a protected action ballot order in those terms.
DEPUTY PRESIDENT
Appearances:
Mr D. Victory for the Applicant
Mr P. Ronfeldt for the Respondent
Hearing details:
2017
Melbourne
Adelaide (video link)
28 July
Final written submissions:
31 July 2017
1 The parties were directed to file any submissions by the close of business on 31 July 2017. The company filed its submissions at 19.20pm. However, they are consistent with the line of argument presented at the hearing. No objection was raised by the Applicants. There is no apparent detriment to the Applicants in accepting the late filing of the submissions.
2 Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2015) 257 IR 5 at 69; [2015] FWCFB 210 at 57
3 Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368]; Application by NUW [2016] FWC 6262 at 25
4 National Union of Workers v Como Glasshouse No 2 Pty Ltd T/A D’Vine Ripe[2016] FWC 7734, Ryan C
5 She did not attend the meeting of 17 March 2017: PN173
6 Ibid, paragraph 16
7 Ibid, paragraph 17
8 Ibid, paragraph 19
9 Exhibits A5, A6 and A7
10 Ibid, at paragraphs 5, 5 and 3 respectively
11 Above n 7, at paragraphs 15, 16 and 14 respectively
12 Above n 7, at paragraphs 17, 18 and 16 respectively
13 PN150; Exibit A3, Notices of Appointment of Mr Ejaz Ali, Mr Umeed Ali and Mr Ram Krishna Sharma as bargaining agents for themselves.
14 Exhibit A3: Notices of appointment of Mr Ejaz Ali, Mr Umeed Ali and Mr Ram Krishna Sharma as bargaining agents for themselves.
15 Transcript at, PN770
16 Transcript, at PN774, concerning question 3 in the draft order. No issues were raised by the employer concerning the specificity or legitimacy of the other questions
17 Exhibit A2, Notices of appointment of Mr Ali, Mr Ali and Mr Sharma as bargaining agents for various employees
18 Transcript at, PN123
19 Company’s closing submission, paragraph 14
20 Ibid, paragraph 15
21 Ibid, paragraph 16
22 Ibid, paragraph 17 and 18
23 PN 436 and following
24 [2010] FCA 399
25 At paragraph 26
26 Company’s closing submission, paragraph 36
27 Statutory Declaration of Mr Umeed Ali, paragraph 13; Statutory Declaration of Mr Ejaz Ali, paragraph 12
28 [2016] FWCFB 6332
29 Ibid at [44]
30 Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2015) 257 IR 5 at 69; [2015] FWCFB 210 at 57
31 Exhibit A2, Notices of appointment of Mr Ali, Mr Ali and Mr Sharma as bargaining agents for various employees
32 Company’s closing submission, paragraph 42, 43, 53
33 See email submission of the Applicants, 31 July 2017
34 Transcript at, PN188
35 Transcript at, PN188
36 Transcript at, PN123
37 Company’s closing submission, paragraph 56; see also statutory declaration of Ms Cinanni paragraph 16
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