National Union of Workers v United Steel Pty Ltd t/a GAM Steel

[2019] FWC 5900

[2019] FWC 5900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Union of Workers
v
United Steel Pty Ltd t/a GAM Steel
(C2019/860)

DEPUTY PRESIDENT COLMAN MELBOURNE, 5 SEPTEMBER 2019

Alleged dispute arising under enterprise agreement – clause relating to paid meetings – whether company unreasonably withheld consent to meeting – dispute determined

[1] This decision concerns an application made by the National Union of Workers (NUW) under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 13 of the G.A.M. Steel Enterprise Agreement 2017-2021 (Agreement) 1. The Agreement applies to employees of United Steel Pty Ltd (GAM) who work at the company’s Derrimut site in Victoria.

[2] The dispute concerns the application of clause 48.1 of the Agreement, which provides for on-site meetings that workers may attend without loss of pay. The union contends that the company unreasonably withheld consent to a meeting it requested for the purpose of discussing ‘training and classification issues’ arising under the Agreement. The company says that it was not unreasonable for it to withhold its consent because the union did not provide any detail of the issues that were proposed to be discussed.

[3] It was common ground, and I agree, that the dispute has been progressed through the steps in the dispute resolution procedure in clause 13 of the Agreement, and that the Commission is empowered to arbitrate the dispute.

[4] The parties submitted the following question for determination: “Is the Employer acting inconsistently with its obligations in clause 48.1 by unreasonably withholding consent to the NUW’s request dated 25 January 2019, for an on-site paid meeting to discuss training and classification issues?” At the hearing, the union adopted the company’s revised formulation of the question, which was as follows: “Did the employer (GAM Steel) unreasonably withhold its agreement to the union’s request on 25 January 2019 for a paid meeting pursuant to clause 48.1 of the GAM Steel Enterprise Agreement?” The second question is more precisely framed and I consider that by answering it I will determine the dispute. The matter was heard before me on 27 August 2019. Mr Dickson, the company’s general manager, gave evidence for GAM. No evidence was led by the union.

[5] Clause 48.1 of the Agreement provides as follows:

“Union meetings

By mutual agreement of the Employer and the Union, on-site meetings may be held to consider and discuss matters relating to this Agreement or the renegotiation of this Agreement. Except where otherwise agreed, seven days’ notice of the meeting will be given to the Employer. Workers attending these meetings on site will be granted paid release at ordinary time. The request for these meetings will not be unreasonably withheld.”

[6] There is no fundamental disagreement between the parties about the meaning of the clause. The first sentence provides that, by mutual agreement between the company and the union, on-site meetings may be held to ‘consider and discuss matters relating to this Agreement’, or the renegotiation of the Agreement. It is clear that there has been no mutual agreement of the parties about an onsite meeting in the present matter. It is also accepted that the Agreement is not being renegotiated, and that the purpose of the proposed meeting had to be ‘to consider and discuss matters relating to this Agreement’.

[7] The second sentence of the clause states that, except where otherwise agreed, seven days’ notice of the meeting will be given to the employer. Where there is mutual agreement about a meeting, there will presumably be no need for notice to be given. The second sentence appears to contemplate that there has been no mutual agreement, in which case the union will give seven days’ notice of its desire to have a meeting.

[8] The third sentence of the clause provides that ‘workers attending these meetings on site will be granted paid release at ordinary time.’ This sentence presupposes that a meeting takes place. If so, employees may attend and receive payment. The reference to ‘paid release’ suggests that the meeting will occur at times during which employees would otherwise be required to work, and that they will be released from work, with pay, in order to attend.

[9] The final sentence states that ‘the request for these meetings will not be unreasonably withheld.’ It does not make sense to speak of ‘withholding a request’. Clearly what is meant here is that the request will not be unreasonably refused, or, as the parties formulated the matter in their revised question, that agreement (or consent) to the request will not be unreasonably withheld, which amounts essentially to the same thing.

Factual background

[10] On 25 January 2019 Mr Dario Mujkic, the Victorian branch assistant secretary of the NUW, wrote to Mr Dickson requesting a meeting ‘to discuss training and classification issues, which are matters that relate to the Agreement’. He asked that the meeting occur from 2.00pm to 2.30pm for day shift, from 3.00pm to 3.30pm for afternoon shift, and from 10.00pm to 10.30pm for night shift. He confirmed that the union was providing seven days’ notice of the proposed meeting in accordance with clause 48.1.

[11] On 4 February 2019, Mr Dickson sent a letter to Mr Mujkic and Mr Toner, NUW industrial officer. It referred to an earlier email sent from the union to the company on 15 January 2019 concerning clause 48.1 of the Agreement, and stated that in the company’s view the clause did not contemplate a paid meeting occurring off site. The letter further stated that the company was not aware of any outstanding matters in relation to classifications, and that all relevant training and retraining had been completed.

[12] On 8 February 2019, Mr Dickson wrote again to Mr Toner. He reiterated that the company was ‘not aware of any outstanding matters in relation to the classification schedule’ and that all relevant training had been completed. He further stated that the company did not agree to the union’s request for a paid meeting because it considered clause 48.1 to be an unlawful term within the meaning of s 194(f)(ii) of the Act and that therefore, pursuant to s 253, it had no effect.

[13] The present dispute, and the question I have been asked to determine, concerns whether the company unreasonably withheld consent to the union’s request on 25 January 2019 for a meeting pursuant to clause 48.1. It is relevant however to note for background purposes two previous union requests for meetings that were made in the preceding months.

[14] On 31 October 2018, the NUW requested a meeting ‘to discuss training and classification issues of our members, which are matters that are related to the Agreement’ 2 (‘the first request’). The company rejected the request and told the union that it considered clause 48.1 to be an unlawful term. Mr Dickson’s evidence was that on 4 December 2018 he met with Mr Toner to discuss the relationship between the company and the union. Mr Toner said that the relationship between the parties was not good. He said that the union wanted a paid meeting as provided for in clause 48.1. By email to Mr Toner dated 13 December 2018, Mr Dickson confirmed that the company rejected the NUW’s request for a meeting.

[15] On 17 December 2018, Mr Toner wrote to Mr Dickson and said that the NUW would be changing the site organiser in order to improve the relationship between the company and the union. He said that the NUW would like a paid meeting in January to introduce the new organiser. This was referred to at the hearing as the union’s ‘second request’ for a meeting. On 20 December 2018 Mr Dickson replied, stating that the deployment of a new organiser was a positive step, but that he declined the request for a paid meeting to introduce the new organiser and that the union should exercise right of entry powers under the Act to do this.

[16] The NUW objected to sections of Mr Dickson’s witness statement that addressed the union’s second request, on the basis that this was evidence of settlement negotiations. It submitted that Mr Toner’s email to Mr Dickson of 17 December was marked ‘without prejudice and in confidence’ and that the substance of the communication is clearly related to the union’s efforts to improve the relationship with the company. I stated at the hearing that I would receive the evidence and that the union could address me on its weight. As will become apparent, I do not consider that very much turns on this evidence. The focus of the present dispute is the company’s rejection of the NUW’s third request for a meeting, not the second. However, for completeness, I will briefly explain my reasons for concluding that there was no basis for me to exclude the evidence in question.

[17] The Commission is not bound by the rules of evidence but generally applies them as they reflect principles that are conducive to fair and efficient decision-making. Section 131(1) of the Evidence Act 1995 (Evidence Act) provides that evidence is not to be adduced of a communication that is made between persons in dispute in connection with an attempt to negotiate a settlement of the dispute. The union’s proposal to change the organiser at the site was made in an effort to improve the relationship between it and the company. But I do not consider that there was any ‘dispute’ about this matter that was the subject of attempted ‘settlement’. Any dispute concerned whether a paid meeting could or should be held, not whether the broader relationship could be improved.

[18] In any event, as I pointed at out the hearing, the paragraphs in Mr Dickson’s statement that were objected to by the union concern Mr Toner’s email of 17 December 2019 and the company’s response and reaction to it. But the NUW’s own materials, tendered in evidence as exhibit A1, included an email message from Mr Toner to Mr Dickson dated 15 January 2019 in which he summarises the history of the disagreement between the parties about clause 48.1, including the email sent by Mr Toner to Mr Dickson on 17 December 2018 requesting a paid meeting to introduce the new organiser. Section 131(2) provides for a range of exceptions to the rule in s 131(1), including where ‘the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute’ (s 131(2)(b)). In my view, if the evidence in question had in fact related to an attempted settlement of a dispute for the purpose of s 131(1), the substance of it was freely disclosed by the union and the exemption in s 131(2)(b) would apply.

[19] I also note that the union objected to two paragraphs in Mr Dickson’s statement on the basis that they contained opinion evidence however I consider these passages constituted lay opinions concerning Mr Dickson’s perceptions of the union’s request for a paid meeting (see s 78 of the Evidence Act).

Submissions of the parties

[20] The NUW submits that its request dated 25 January 2019 for a paid meeting satisfied the two ‘preconditions’ outlined in clause 48.1. The union told the company that the meeting was to consider training and classification issues, which are matters that relate to the Agreement, and it provided more than 7 days’ notice of the meeting it sought.

[21] The union says that the company unreasonably withheld consent to the request. First, it says that the company did not provide any cogent reason for the denial of the meeting. Secondly, it submits that the company wrongly claimed that clause 48.1 was an unlawful term, and that this was a ‘ruse’ and a position subsequently abandoned by the company. Thirdly, the union says that it had allayed other concerns previously raised by the company about the proposed meeting. One such concern was that the union was seeking to enter the premises in connection with the meeting however the union’s request dated 25 January 2019 made clear that no officials would enter the premises. Another company concern had been that the meeting might occur off-site, but the union had explained that this would not be the case. These concerns could therefore not be valid objections to the request.

[22] The union further submits that the only reason now relied on by the company for having rejected the request on 25 January 2019 was that it was ‘not aware of any outstanding matters’. The union said however that the company could not expect to be in a position to determine whether there are any matters requiring discussion from an employees’ perspective, and that the union was aware of matters relating to training and classification and had sought paid meetings about those matters, as outlined in its letters to the company of 31 October 2018 and 25 January 2019. The union also contended that clause 48.1 does not require it to provide the company with details about what the proposed meeting will be about. In any event, it says that Mr Dickson acknowledged in cross-examination that certain employees were on ‘grandfathered’ arrangements in respect of which there were, or might reasonably be, certain concerns.

[23] The company contends that it was not unreasonable to refuse the request on 25 January 2019 for a paid meeting pursuant to clause 48.1 of the Agreement. It says that it held real doubt about the ‘bona fides’ of the union’s request for a meeting, given that the claimed purpose of the meeting had changed: in the first request, it related to classification and training issues; in the second it concerned the introduction of a new organiser; and in the third request, the rationale was again unspecified classification and training issues. The company says that it did not accept that the union had a genuine and legitimate purpose for convening the meeting.

[24] The company further submitted that, even if there had been a genuinely held and proper reason for the proposed meeting, the union did not provide, and has still not provided, any details of the alleged ‘training and classification issues’. The company says that the union led no evidence about such details in the proceedings before the Commission and that the company remains unaware of what the ‘training and classification issue’ are. It says that this is an important factor bearing on the reasonableness of its position.

[25] The company says that the NUW’s assertion that it had outlined the training and classification issues in its letters of 31 October 2018 and 25 January 2019 must be rejected, as the letters in fact provide no detail and instead simply refer generally to ‘training and classification issues’. The company says that if the union knows something about these matters that the company is unaware of, it should tell the company what this is.

[26] The company also states that at no time have any employees raised a concern using the standard grievance process for disputing competency assessments or their correct classifications in accordance with Section 2(III) of Appendix A of the Agreement. It says that no employees have communicated to the company that they are unhappy with their classification or training.

Consideration

[27] The reasonableness of the company’s refusal to consent to a request for a paid meeting under clause 48.1 of the Agreement will be informed by all of the circumstances. It is relevant to take into account what the request entails, including the matters that are proposed to be considered and discussed at the meeting, whether they are indeed matters relating to the Agreement, and also whose interests those matters affect, as this will have a bearing on who should attend the meeting. In the latter regard, the clause allows for all employees to attend a meeting but does not require this to be the case. In a particular instance, the relevant issue might affect only some employees, and it might not be reasonable for all employees to attend.

[28] I agree with the union that clause 48.1 of the Agreement is not an unlawful term of the kind described in s 194(f). It does not provide for an ‘entitlement’ to enter premises otherwise than in accordance with Part 3-4 (which deals with right of entry). The clause relates to paid meetings, not union right of entry. Moreover, s 253 of the Act provides that a term of an enterprise agreement has no effect ‘to the extent that it is an unlawful term’. Even if clause 48.1 could be construed as conferring a right of entry on the NUW in a manner contrary to s 194(f), the term would have no effect only to that extent. The remaining effect of the clause, which provides for paid meetings, would endure.

[29] I do not accept the union’s contention that the company’s previous reliance on s 194(f) was a ‘ruse’. There is nothing to indicate that the company did not genuinely hold this belief. In my opinion it was simply an erroneous belief. However, the union is right to say that, in determining the dispute, the Commission should consider the company’s reasons for refusing the request at the time, not what its reasons might be now. Clearly, the company relied on its belief that clause 48.1 was an unlawful term in refusing consent. Had this been its only reason, the company’s decision to withhold consent for a paid meeting would in my view have been unreasonable.

[30] However, Mr Dickson’s letter of 8 February 2019 refusing the union’s request must be read as a whole and in the context of the letter he sent to Mr Mujkic and Mr Toner on 4 February 2019, in which he referred to clause 48.1 and the proposed paid meeting sought by the union. In that earlier letter, Mr Dickson stated, in the context of the union’s request for a meeting under clause 48.1, that ‘additionally’ the company was ‘not aware of any outstanding matters relating to classification’ and that all training had been completed. Mr Dickson’s letter on 8 February 2019 reiterates these remarks, and then sets out the company position that clause 48.1 is an unlawful term.

[31] In my view it is clear from Mr Dickson’s letters of 4 and 8 February 2019 that the company raised a second reason for refusing the request for a paid meeting, namely that it was unaware of there being any current classification or training issue. Mr Dickson gave sworn evidence about the company’s reasons for withholding consent to the meeting. He said that he had formed the opinion that the union simply wanted to hold a paid meeting and he considered that the union’s general reference to ‘training and classification issues’ was meaningless without further explanation. He said that no employee or manager had raised training or classification issues with him. I accept Mr Dickson’s evidence.

[32] The union did not lead evidence about what the classification and training issues were, or about any efforts it made to explain them to the company. The company’s letter refusing the third request stated that it was not aware of any classification or training issues. The union did not subsequently seek to enlighten the company about what these issues were.

[33] I note that Mr Dickon’s email of 13 December 2019 states, in the last of three dot points, that during a recent meeting Mr Toner had ‘raised concerns with the classification process’ and that the company ‘is open to discussing specific concerns to resolve outstanding issues in regard to this matter.’ 3 Further, Mr Dickson’s letter of 8 February 2019 concluded by stating that employees’ wages had not been affected by training or retraining and that ‘therefore to our knowledge the concerns as raised by you in the meeting on 4 December 2018 have been addressed.’ Evidently there had been some past issues touching on classification and training, although it is not at all clear to me what these were. However it was not the union’s case that the ‘classification and training issues’ proposed to be discussed at the paid meeting requested on 25 January 2019 related to either of these past matters.

[34] The union did not submit that it had in fact provided the company with further details of the ‘classification and training issues’. It suggested that the company knew or should have known about issues that would or might be the subject of discussion at the paid meeting. It pointed to Mr Dickson’s acknowledgement in cross-examination that there were employees on ‘grandfathered arrangements’, and suggested that this in some way demonstrated that he had knowledge of a concern that might have been discussed at a paid meeting. It was suggested to Mr Dickson that he knew these employees were disgruntled. Mr Dickson denied this. The union also suggested that Mr Dickson was aware of a previous disagreement between the company and the union about whether certain employees should be classified level 2 or 3. Mr Dickson denied this too.

[35] The union did not claim at the hearing that these were the relevant issues that would have been discussed at the proposed meeting. And even if the union had established that the proposed paid meeting related to either of these things, and that it had told the company about this (or that the company otherwise knew this was the case), the question would then have arisen as to why it would be reasonable for all employees to attend a paid meeting to discuss an issue that would apparently affect only ‘grandfathered’ employees, or those classified at levels 2 or 3. This illustrates why the rationale for a proposed paid meeting and what it is about are relevant to the reasonableness of the company’s position as to whether it will consent to it.

[36] The union contended that there is no requirement in clause 48.1 for it to specify the relevant matters that are proposed to be discussed at the meeting. This is true. But the subject matter of the proposed meeting is clearly relevant to the reasonableness of the company’s position. Clause 48.1 concerns paid meetings ‘to consider and discuss matters relating to this Agreement’. The subject matter of the discussions is at the heart of the clause. The company has an interest in understanding at least broadly the subject that will be discussed. By this I mean not simply the abstract topic (‘classifications’, ‘wages’, ‘annual leave’), but the substance of the matter. This in turn will inform which employees may be interested in, or affected by, the issue in question and might therefore expect to attend.

[37] In the present matter, the company was told only that the meeting would discuss and consider ‘training and classification issues’. I do not suggest that a high level of detail was required. But in my view it was not unreasonable for the company to withhold consent to a paid meeting of the entire workforce to discuss and consider an issue, the gist of which it did not understand, and that did not on its face affect the entire workforce.

[38] Mr Dickson acknowledged in cross-examination that the company could afford to pay for a meeting under clause 48.1, and also that it could accommodate, for example, a 15 minute meeting in the next three months or so. But this does not mean that it was unreasonable for the company to withhold its consent to the meeting. Of course a large company can pay for a mass meeting. The dispute is not about whether the company can do this, but, in effect, whether it should do this. The consideration of the reasonableness of the company’s position needs to take into account the reason for the meeting, what is proposed to be discussed, whose interests are affected, how many meetings there have been in recent times, the operational requirements of the business at the relevant times, as well as reasons given by the employer for withholding consent.

[39] Having regard to all of the circumstances, I conclude that it was not unreasonable for the company to withhold consent to the NUW’s request of 25 January 2019 for a paid meeting of all employees. It was not provided with any detail about what the ‘training and classification’ issues were or how these issues affected the interests of all employees.

Conclusion

[40] The answer to the question posed by the parties for determination by the Commission is as follows:

Question: Did GAM Steel unreasonably withhold its agreement to the union’s request on 25 January 2019 for a paid meeting pursuant to clause 48.1 of the GAM Steel Enterprise Agreement?’

Answer: No

DEPUTY PRESIDENT

Appearances

M. Toner for the NUW

N. Harrington of counsel for United Steel Pty Ltd

Hearing details

2019

Melbourne

August 27

Printed by authority of the Commonwealth Government Printer

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 1   AE425822

 2   Respondent’s materials, tab 16

 3   Respondent’s material, tab 10