National Union of Workers

Case •

[2018] FWC 2821

•

22 MAY 2018
[2018] FWC 2821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Union of Workers

(B2018/379)

Transport Workers’ Union of Australia

(B2018/382)

v
PFD Foods Services Pty Ltd

Commissioner Hampton

ADELAIDE, 22 MAY 2018

Proposed protected action ballots of employees of PFD Foods Services Pty Ltd.

  1. The applications

  1. This decision concerns two related applications seeking protected action ballot orders (PABOs) in relation to certain employees of PFD Foods Services Pty Ltd (PFD) under s.437 of the Fair Work Act 2009 (the Act). The applications have been made by the National Union of Workers (NUW) and the Transport Workers’ Union of Australia (TWU) respectfully, and each arises from a bargaining process that is underway involving both Unions and PFD seeking to agree upon a new Enterprise Agreement.

  1. PFD has opposed both applications, largely on the grounds that each is premature, unnecessary, and such as to potentially damage the good relationships at the workplace. Having received written submissions from all parties, and with their concurrence, I have determined these matters together[1] “on the paper” without conducting a hearing.

  1. The Statutory context for these applications

  1. The Act relevantly provides as follows in relation to an application for a PABO:

“436 Object of this Division

The object of this 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 enterprise agreement.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

Subdivision B—Protected action ballot orders

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.

(2)       Subsection (1) does not apply if the proposed enterprise agreement is:

(a)       a greenfields agreement; or

(b)       a multi-enterprise 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).

Matters to be specified in application

(3)       The application must specify:

(a)       the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a)       will be covered by the proposed enterprise agreement; and

(b)       either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

438 Restriction on when application may be made

(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).

(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.

439 Joint applications

Without limiting section 609, the procedural rules may provide for the following:

(a) how a provision of this Act that applies in relation to an applicant for a protected action ballot order is to apply in relation to joint applicants for such an order;

(b) the joinder, with the consent of each existing applicant, of one or more bargaining representatives to an application for a protected action ballot order;

(c) the withdrawal of one or more applicants from a joint application for a protected action ballot order.

440 Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:

(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or

(b)       otherwise—the Australian Electoral Commission.

441 Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.

442 Dealing with multiple applications together

The FWC may deal with 2 or more applications for a protected action ballot order at the same time if:

(a)       the applications relate to industrial action by:

(i)          employees of the same employer; or

(ii)         employees at the same workplace; and

(b) the FWC is satisfied that dealing with the applications at the same time will not unreasonably delay the determination of any of the applications.

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).

(3)       A protected action ballot order must specify the following:

(a)       the name of each applicant for the order;

(b)       the group or groups of employees who are to be balloted;

(c)       the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A)For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a)   the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b)  the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

  1. What is not in dispute

  1. It is not in dispute that the two Unions:

    ·  Are each a bargaining representative and entitled to make the relevant application;

    ·  Have made a proper application as required by the Act and have met the documentary and notice requirements for the application; and

    ·  Are not prevented from bringing the application by virtue of s.438 of the Act given the nominal expiry of the current enterprise agreement applying to the parties.[2]

  1. I also find that these requirements are satisfied. Further, the notification time provided by s.437(2A) of the Act has occurred with PFD providing a notice of employee representational rights on 29 December 2017 and the commencement of bargaining.

  1. It also appears to be common ground that negotiations have been underway since late February 2018 and that each of the applicant Unions has provided PFD with a log of claims. There have been eight meetings conducted with a definitive proposal made by PFD in mid-April 2018 being put to, and rejected by, the members of the two Unions. There have been further discussions, with potentially more meetings to come, however an agreed outcome has not yet been reached.

  1. I also note that PFD did not seek an extended period of notice as contemplated by s.443(5) of the Act.

  1. The positions advanced by the parties

  1. The TWU provided submissions confirming its view that it has bargained in good faith throughout negotiations and will continue to do so, but that an impasse has been reached in negotiations, which has prompted this application being made. It is contended that all of the other statutory requirements had been met for a PABO to be issued. This was supported by a Statutory Declaration of Mr Matthew Burnell, Union Branch Official of the TWU.

  1. The NUW also provided submissions with a similar effect outlining that there are no clear grounds for the objection relevant to making an order of this type and that there is no evidence to support PFD’s claim that this order will damage its relationship with the employees. The NUW also contends that it, and the other parties, have shifted their respective positions during bargaining and that one major issue remains in dispute. Further, the NUW confirms that it has been bargaining in good faith to date and will continue to do so. This position was supported by the Statutory Declaration of Mr Travis Hera-Singh, Organiser of the NUW.

  1. The objections advanced by PFD in relation to each application were broadly the same and may be summarised as follows:

    ·  An initial bargaining meeting was held on 28 February 2018 and since then there have only been a total of 8 bargaining meetings held;

    ·  The meetings to date have been amicable and discussions have been targeted at reaching a resolution;

    ·  Any industrial action will risk harming the professional relationship between the Respondent and its customers; and

    ·  Both applications are premature and aimed at potentially damaging the good relationship the Respondent has with its employees including union members.

  1. Consideration

  1. The role of the PABO, and consequently the role of the Commission in considering any such application, is established by the terms of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action in support of bargaining for a single enterprise agreement.

  1. The PABO is part of the bargaining regime of the Act. The scheme of the Act is outlined in various decisions of the Commission including in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union[2010] FWAFB 526 and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53.

  1. The taking of protected industrial action by both employees and employers, that is designed to advance claims and to persuade the other party to change their position, is part of that scheme.

  1. Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,[3] whether the action is notified in accordance with the requirements of the Act,[4] and whether it is industrial action within the meaning of the Act.[5] Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population or of part of it or causes significant damage to the Australian economy or an important part of it,[6] or causes significant economic harm.[7] Industrial action that is not protected industrial action may be prevented.[8]

  1. Given the undisputed facts of this matter, there is no contest that a valid application has been made in each case.

  1. It is apparent from the terms of the Act that in order to succeed with these applications the NUW and TWU must each satisfy the Commission that it has been, and is, genuinely trying to reach an agreement with PFD as required by s.443(1)(b) of the Act.. It is also apparent from s.443 of the Act, that where this requirement is met (along with the other prerequisites that are not in dispute here) the Commission must make a PABO.

  1. In Total Marine Services Pty Ltd v The Maritime Union of Australia[9] (Total Marine) the Full Bench said:

“[30]     The requirement that an applicant for a ballot order genuinely try to reach an agreement and be continuing to do so at the time an application for a ballot order is made was a requirement in the Workplace Relations Act 1996. The wording of the relevant section has been altered because of the removal of a process of establishing a bargaining period during which protected action may be taken. The concept of genuinely trying to reach an agreement was dealt with in other parts of the Workplace Relations Act 1996, specifically in relation to the grounds for terminating a bargaining period.

[31]     In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations.  It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32]     We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”

  1. In JJ Richards & Sons Pty Ltd v Fair Work Australia[10] the Federal Court was dealing with a circumstance where the employer had refused to bargain. Flick J determined, in effect, that the Commission cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying to reach an agreement with the employer” unless:

    1.   an applicant has approached the employer and informed the employer of the general ambit of that for which agreement it sought; and

    2.   the employer has foreshadowed - even in the most general terms - its attitude as to the proposed agreement.[11]

  2. Flick J also went on to observe in the same decision that the above “minimum statement” was “sufficient to dispose of the present application however more may be required and much may well depend on the factual scenario in which the terms of s.443(1)(b) are to be applied.”[12]

  1. In this case, PFD contends, in effect that each application is unnecessary and premature. It has not contended that the NUW or the TWU has not been genuinely trying to reach an enterprise agreement. The material before the Commission supports the notion that the Unions have been and are genuinely trying to reach an agreement with PFD. Accordingly, PFD’s suggestion of the applications being “premature” is not advanced in the same sense as discussed in Total Marine. Indeed, in these matters the bargaining is well advanced and genuine negotiations have been conducted and progress made. Rather, PFD contends, in effect, that the potential to take protected industrial action is not necessary to achieve an agreed outcome and may lead to negative consequences.

  1. Given the scheme of the Act, it is not the role of the Commission to determine whether the PABO, or the taking of protected industrial action, is necessary or even a good idea. Provided that the requirements have been met, the Commission is obliged to issue a PABO and it is the members of the Unions that will decide whether any such action is to be endorsed. Further, all parties must continue to bargain in good faith. In terms of the capacity to avoid any negative consequences for all parties, this is of course desirable, and I will return to this aspect as part of the conclusions to this matter.

  1. Having regard to all of the circumstances evident here, I am satisfied that each of the applicant Unions has been, and is, genuinely trying to reach an agreement with PFD as required by s.443(1)(b) of the Act.

  1. Conclusions

  1. I have found that all of the statutory requirements of s.443 have been met and that the proposed PABOs are each in order.

  1. Accordingly, I am obliged to issue a PABO in each matter.

  1. In conformity with the Act, an order in relation to the application by the NUW[13] and one in relation to the TWU[14] is being issued in conjunction with this decision.

  1. I note the circumstances and the fact that there is only one outstanding issue and return to my earlier comments about the desirability of avoiding negative consequences for all parties. In that regard, I would observe that it is open to one or more of the parties to lodge an application pursuant to s.240 of the Act seeking the Commission’s assistance to deal with the bargaining dispute.


COMMISSIONER

<PR607236>


[1] As expressly contemplated by s.442 of the Act.

[2] PFD Food Services Pty Ltd (South Australia) Enterprise Agreement 2015 expiring on 30 April 2018.

[3] Section 437, section 408 and 409 of the Act.

[4] Section 414 of the Act.

[5] Section 19 of the Act.

[6] Section 424 of the Act.

[7] Section 423 of the Act.

[8] Section 418 of the Act.

[9] [2009] FWAFB 368, per Watson VP, Hamberger SDP and Roberts C.

[10] [2012] FCAFC 53.

[11] JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at PN 58.

[12] Ibid.

[13] 607254.

[14] 607204.

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JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53