National Union of Workers v Woolstar Pty Ltd
[2017] FWC 5447
•24 OCTOBER 2017
| [2017] FWC 5447 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
National Union of Workers
v
Woolstar Pty Ltd
(B2017/963, B2017/971)
National Union of Workers
v
Queensland Property Investments Pty Ltd
(B2017/981)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 24 OCTOBER 2017 |
Proposed protected action ballots of employees of Woolstar Pty Ltd and Queensland Property Investments Pty Ltd
On 23 October 2017, I issued protected action ballot orders in respect of three applications made by the National Union of Workers (NUW). I indicated to the parties that I would publish my reasons for the decisions to make the orders in due course. These are my reasons.
On 12 October 2017 the NUW filed an application for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (Act). The application concerned a proposed ballot of employees of Woolstar Pty Ltd (Woolstar), a subsidiary of Woolworths Limited (Woolworths), in respect of their support for protected industrial action. The employees in question are members of the NUW who would be subject to a proposed enterprise agreement at the company’s Melbourne Liquor Distribution Centre (MLDC) at Laverton North. Their employment is presently covered by the Woolstar Pty Ltd Melbourne Liquor Distribution Centre Enterprise Agreement 2014-2017 (MLDC Agreement). I will refer to this as the Laverton North application.
On 13 October 2017, the NUW filed a second application for a PABO. This concerned a proposed ballot of employees of Woolstar who are members of the NUW and who would be subject to a proposed enterprise agreement at the company’s Wodonga Regional Distribution Centre (WRDC) at Barnawartha (Barnawartha application). The employment of the relevant employees is currently covered by the Woolstar Pty Ltd Wodonga Regional Distribution Centre and the National Union of Workers Enterprise Agreement 2015-2017 (WRDC Agreement).
On 16 October 2017, the NUW filed a third application seeking a PABO in respect of employees of Queensland Property Investments Pty Ltd (QPI), which is also a subsidiary of Woolworths. Employees to be balloted pursuant to that application are members of the NUW who would be subject to a proposed enterprise agreement at the Melbourne Regional Distribution Centre (MRDC) at Broadmeadows (Broadmeadows application). The employment of these employees is currently covered by the National Union of Workers – Queensland Property Investments Pty Ltd Melbourne Regional Distribution Centre Enterprise Agreement 2013 (MRDC Agreement).
The Laverton North and Barnawartha applications were allocated to my chambers on Friday 13 October 2017, and the Broadmeadows application on Monday 16 October 2017. Woolstar advised the Commission that it opposed the Laverton North and Barnawartha applications. QPI advised the Commission that it opposed the Broadmeadows application. Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a PABO within 2 working days after the application is made. Accordingly, I listed the three applications consecutively on the afternoon of Tuesday 17 October 2017, at 3.00pm, 4.00pm and 5.00pm.
Shortly before the hearing of the Laverton North application at 3.00pm, Woolstar filed an outline of submission in opposition to the PABO in respect of the Laverton North application, together with a witness statement of Ms Wendy Mitchell, Woolstar’s Human Resources Business Partner at Laverton North. An amended outline of submission was filed at the hearing.
At the commencement of the hearing in relation to the Laverton North application, I discussed with the parties the approach that I should take to hearing the three matters, given that the employers’ objections to the applications appeared to advance similar and, in some respects, common questions of law and fact. As explained further below, the employers contend that the NUW is not genuinely trying to reach agreement with them at the three separate sites, and is in fact pursuing a ‘multi-site or pattern bargaining strategy’ across all three sites, as part of its ‘One Big Shed’ initiative in Victoria.[1] The employers also challenge the genuineness of the union’s efforts to reach agreement with them on the basis that it is bargaining in respect of matters that do not pertain to the employment relationship.
Having sought the parties’ views, I considered that it was appropriate and most expeditious to deal with the applications consecutively that afternoon. The parties requested that relevant evidence and submissions in the hearing of each application be taken into account in relation to the other applications.[2]
In all three matters, Mr Mujkic, Industrial Officer of the NUW, appeared for the union. Mr Harrington of counsel appeared for Woolstar and QPI.
Given the interrelated factual setting of these three matters and the legal issues they involve, I have considered it appropriate to issue written reasons that address all three applications and orders, rather than separate written reasons for each matter and order.
Statutory framework
Section 437 of the Act enables a bargaining representative to apply for a protected action ballot order. Subject to the restrictions in s.437(2A) and s.438 (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 s.443. This section 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).”
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.[3] It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.[4] There are two temporal components to s.443; the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement.
I now turn to the background and evidence relating to each of the three applications.
Background and evidence: Laverton North
On 7 July 2017, the NUW’s Victorian Branch Sectary, Mr Maas, wrote to the supply chain manager of Woolworths, Mr Johnson, attaching a log of claims that set out 18 items which the union sought to have included in a new enterprise agreement. The letter bore a reference line reading ‘Bargaining to replace the existing agreement – Laverton DC (MLDC)’ and stated:
‘As you are aware, three Victorian distribution centres operated by Woolworths Ltd will be engaging in bargaining for replacement agreements this year. To ensure this process proceeds as quickly and efficiently as possible, we propose that bargaining occurs in two streams:
The 'first stream' would involve three or four NUW delegates from each of the three facilities (Hume, Barnawartha and Laverton), along with NUW official/s, and would consider the issues (including increase to wages; improved redundancy entitlements; matters that relate to closure/outsourcing; and improved NUW rights) that have been raised on Logs of Claim on behalf of members at all sites;
The 'second stream' would involve all NUW delegates from the Laverton DC (together with NUW official/s) and would consider the remainder of the issues on the enclosed Log of Claims.
We believe this structure would help facilitate agreement between the parties and allow for efficient consideration of some of the matters that will require discussion during bargaining at more than one site.’[5]
On 14 July 2017, Mr Johnson replied to Mr Maas, stating that the company strongly disagreed that there were any efficiencies to be gained through the proposed bargaining process, and that the two stream bargaining proposal was not acceptable.[6]
In the course of July 2017, the NUW and Woolstar each filed in the Commission applications under s.229 of the Act, seeking orders that the other bargain in good faith. On 8 August 2017 I conducted a telephone mention in relation to these matters, at which the parties advised that they had reached an agreed position on the issues between them. They requested that I issue a statement reflecting their agreement, and I did so later that day. The statement contained three points, but relevantly read as follows:
‘The parties have agreed to resolve their respective applications for bargaining orders in relation to bargaining at the MLDC, on the following terms:
1. The NUW will not seek to require bargaining to occur in two streams as proposed and its participation in bargaining will not be conditional on bargaining occurring in this manner. The NUW commits unreservedly not to pursue or adopt a bargaining process at MLDC which encompasses bargaining for the terms and conditions of enterprise agreements that apply at any other employer or location, and will not make attendance or participation in any bargaining meetings contingent on such an approach. The NUW will on Tuesday 8 August 2017 confirm these assurances by way of letter from Victorian Branch Secretary, Mr Gary Maas, to Woolstar Pty Ltd Supply Chain Manager, MLDC, Mr Damian Johnson.’[7]
On 8 August 2017 Mr Maas wrote to Mr Johnson confirming that the NUW would not require bargaining to occur in two streams and that the union ‘commits unreservedly not to pursue or adopt a bargaining process at the MLDC which encompasses bargaining for the terms and conditions of enterprise agreements that apply at any other employer or location …’.[8]
Mr Auld gave evidence that he is the organiser who has been leading the NUW negotiations for a new agreement at Laverton North. He explained that the union developed the log of claims by surveying members at the site, compiling a list of claims, and then having the proposed log endorsed by the members at the site.[9] He stated that since July 2017 there had been some 8 meetings held between the union and the company to discuss the log and the proposed agreement. Of the 18 items in the log of claims for Laverton North, Mr Auld said that some had been agreed, that the union had withdrawn others, and that the company had made its own claims. A number of matters remain unresolved, including the question of wages and the nominal life of the agreement.[10]
Mr Auld’s evidence was that the union had proposed the ‘two stream bargaining’ approach because it thought it would facilitate bargaining and expedite the negotiations. He noted that the union had a number of claims that related to all three sites,[11] and accepted that part of the union’s ambition was to achieve common conditions across the sites.[12] In the context of the evidence, it is clear to me that by ‘common’ Mr Auld did not mean ‘uniform’ (that all conditions would be common). Mr Auld also acknowledged in cross-examination that the two stream bargaining proposal was an attempt to coordinate the negotiation of three possible agreements at three different sites.[13]
Ms Mitchell gave evidence that she is part of Woolstar’s bargaining team for the negotiations at Laverton North. She concurred with Mr Auld’s assessment that the union and the company had made progress in their negotiations at the site.[14] She acknowledged that it was clear to her that the union’s objective in negotiations at Laverton North was to reach an agreement.[15]
Ms Mitchell also gave evidence about various materials that were issued by, or that suggested an association with, the NUW, and which related to enterprise bargaining at all three distribution centres. These materials were attached as exhibits to Ms Mitchell’s witness statement. Both Ms Mitchell and Mr Auld gave evidence and were cross-examined about this material. This evidence goes to the companies’ contention that the union is pursuing a ‘multi-site or pattern bargaining strategy’, rather than genuinely trying to reach agreement at each site. I return to this evidence later in these reasons.
Background and evidence: Barnawartha
On 7 July 2017, Mr Maas sent to Ms O’Neill, the Logistics Manager of the WRDC at Barnawartha, a letter in substantially the same terms as the one he sent to Mr Johnson in respect of the Laverton North facility. It bore the reference line ‘Bargaining to replace the existing agreement – Barnawartha DC’ and contained the text set out at paragraph 14 above, save for a reference to Barnawartha rather than Laverton North.
The letter attached a 14-item log of claims for the Barnawartha site. Items 1 to 7 were essentially the same as items 1 to 7 of the Laverton log. Items 8 to 13 were similar or very similar to items in the Laverton log. Item 14 concerned a claim not reflected in the Laverton log.
On 18 July 2017, Ms O’Neill replied to Mr Maas’ letter of 7 July 2017, advising that she did not agree with the two stream bargaining approach and that she did not consider it reasonable to require people negotiating the Wodonga agreement to spend time also negotiating agreements for other sites in Melbourne. She stated that Wodonga had a history of negotiating its enterprise agreements with the local team.[16]
Mr Schmidt gave evidence that he is the organiser leading the NUW negotiations for a new agreement at Barnawartha. He stated that the log of claims for Barnawartha was developed by surveying members at the site, and then having the list of claims endorsed by those members in a mass meeting.[17] He said that in negotiations between the company and the union since July 2017, some of the 14 items in the NUW’s log of claims had been agreed, the union had withdrawn others, and that the company had made its own claims. He said that the union’s objective in negotiations with Woolstar at Barnawartha was to reach an outcome that the membership supports.[18] He also said that the union would be prepared to reach agreement at Barnawartha if there is a good offer, regardless of whether agreement is reached at the other two sites.[19] Mr Schmidt said that he had had limited communication with Mr Auld concerning the negotiations at the two Melbourne sites.[20]
No evidence was separately led by Woolstar in relation to its opposition to the Barnawartha application; however the company’s counsel referred to and relied upon the evidence of Ms Mitchell in the Laverton North application,[21] some of which, as indicated, goes to the companies’ concerns about the union’s ‘multi-site bargaining strategy’.
Background and evidence: Broadmeadows
The Logistics Manager at Broadmeadows, Mr Stanner, received on 7 July 2017 a letter from Mr Maas in substantially the same terms as the letters sent to Mr Johnson in respect of Laverton North and Ms O’Neill in relation to Barnawartha. The reference line in the letter read ‘Bargaining to replace the existing agreement – Hume DC’, ‘Hume’ being the site vernacular for the Broadmeadows facility. The text set out in paragraph [14] above appeared in the letter, save for a reference to the Broadmeadows site in relation to ‘stream 2’.[22]
The letter attached a log of claims setting out 11 items. Items 1 to 5 were in essentially the same terms as items 1 to 5 of the Laverton and Barnawartha logs. Item 6 differed from the redeployment claim in the other two logs, and related to the site’s pending closure and the possible establishment of a new site at Lyndhurst. Claim 7 related to reskilling and was not found in the other logs. Claim 8 related to transitional arrangements concerning the closure of the site and also had no counterpart in the other logs. Items 9 and 10 concerned a discount card and were unique to the Broadmeadows log. Item 11 concerned increases to contracted hours and was also peculiar to the site.
Mr Auld gave evidence that he has been the NUW organiser responsible for negotiations with QPI at the Broadmeadows site. He attested that the union’s objective in negotiations at the site was to reach an agreement on the 11 claims tabled in its log. He said that it was expected that the site would close and that a new automated facility would be established at Lyndhurst; he acknowledged in cross-examination that there was only a proposal to establish a facility at Lyndhurst, and that it had not been decided which entity would operate the site.[23] Mr Auld also said that negotiations had addressed redundancy, as well as the possibility of redeployment within the Woolworths business.[24]
No evidence was separately led by QPI in relation to its opposition to the Broadmeadows application however the company’s counsel again relied on Ms Mitchell’s evidence in the Laverton North proceedings.[25]
Objection 1 - ‘Multi-site or pattern bargaining’
The amended outline of submission filed by Woolstar in opposition to the Laverton North application was adopted by Woolstar and QPI in relation to their opposition to the Barnawartha and Broadmeadows applications respectively.
The first objection advanced by the companies is that the NUW is not and has not been genuinely trying to reach agreement with them, because the union is presently ‘orchestrating and prosecuting’ a ‘multi-site or pattern bargaining strategy known as ‘one big shed’’.[26]
I will first address the companies’ evidence that its factual premise is correct, and then consider the implications of the premise being substantiated.
The companies pointed to the existence of extensive written material, in the form of flyers, newsletters, correspondence and posts on social media, which was said to show that the NUW had adopted a multi-site bargaining strategy. The material was exhibited to Ms Mitchell’s witness statement. Chronologically, the material can be summarised as follows.
On or about 22 June 2017, a post appeared on the NUW Facebook page stating that ‘NUW Woolworths members at three Victorian sheds are almost ready to start their campaign for better wages and conditions...’[27] The companies see the reference to a campaign (singular) as significant and evidence of a coordinated multi-site approach to bargaining.
On or about 27 June 2017, a document bearing the NUW’s logo appeared at the MLDC at Laverton North, which stated that ‘the 2017 EBA is our best chance yet to help set a new standard for warehouse workers across Victoria … Three sheds bargaining at the same time means we get three times the industrial power – if we support each other.’[28] Mr Auld gave evidence that this document had not been produced by the union.[29] But he agreed that it was the objective of the union to help set ‘a new standard for warehouse workers in Victoria.’[30]
Next, it will be recalled that on 7 July 2017 the NUW wrote to the companies at the three sites proposing two streams of bargaining, one directed at ‘issues … that have been raised in Logs of Claim on behalf of members at all sites’.
On or about 10 July 2017 a flyer appeared on the NUW noticeboard at Laverton North, entitled ‘NUW Woolworths EBA 2017 Raise the Standard!’ It addressed the claims in the log for Laverton North. It also posed the question of whether it was ‘legal for the union to bargain at more than one shed’. ‘Yes’, was the answer, ‘strong unions … commonly bargain across multiple sites’ and ‘establish a common set of wages and conditions across these sites.’[31] The flyer also addressed the closure of the Broadmeadows (Hume) facility. Mr Auld’s evidence was that this document was not produced by the union.[32]
On or around 13 July 2017, a NUW newsletter appeared at Woolworth’s Brisbane Regional Distribution Centre concerning events in Victoria. It said that for the first time, ‘NUW members at Woolworths warehouses around Victoria will be bargaining at the same time – at Laverton (MLDC), Hume (MRDC) and Barnawartha (WRDC). Three sheds bargaining at the same time means we get three times the industrial power.’[33] The document also says that NUW members at the three sites ‘have endorsed the following key claims as part of this year’s campaign’, and then refers to improvement in redundancy pay, consultation on outsourcing, representation rights, and more permanent and secure jobs. The union accepts that it produced this document.
On 21 July 2017, a post appeared on a Facebook page called ‘MLDC NUW members’, posing a question ‘are we really stronger bargaining together?’ Answering in the affirmative, the post says that management tells workers at ‘MLDC not to worry if our fellow members at Hume [Broadmeadows] get chucked on the scrap heap without an adequate offer of a job.’ The post asks ‘How do we win?’ and answers ‘We support each other. We can all come out of this EBA with our decent conditions preserved, with more secure jobs and more rights as workers … If we want to raise the standard, all we have to do is stick together.’[34] Mr Auld gave evidence that this Facebook page is a NUW members’ page, and not a union page. He said that he believed he might be an administrator of the site, but that he paid no attention to it, did not control its content, and that the NUW has its own Facebook page.[35]
It was put to Mr Auld in cross examination that he was not being entirely honest about his involvement with the ‘NUW members’ webpage. Mr Auld denied this. He said that he believed that the person responsible for the administration of the site invited him to be, or included him as an administrator,[36] but that he did not engage with the site at all.[37] I accept Mr Auld’s evidence. I found him to be a candid and credible witness. In any event, as noted above, Mr Auld acknowledged that the union subscribed to the objective of setting a new ‘standard’.
Then on 14 August 2017, a post appeared on the official NUW Facebook page that read as follows:
‘Finally we are starting negotiation … We are ONE BIG SHED … Our delegates will of course continue to coordinate our bargaining campaigns across MLDC, Hume [Broadmeadows] and Barnawartha’[38]
The companies contend that this statement shows that bargaining for the three sites is being coordinated (indeed the post says as much), and that bargaining at the three sites was not a negotiation for those stand-alone sites.[39] The statement is said to constitute a lens through which the NUW’s subsequent bargaining meetings at the individual sites should be viewed. I note that in contrast to the earlier NUW Facebook page post of 22 June 2017, reference is made in this post to campaigns (plural).
Lastly, on or about 28 August 2017, a document entitled ‘One Big Shed Newsletter, 1st edition’ was displayed at all three distribution centres.[40] The newsletter contains a subheading ‘Bargaining update for NUW Woollies members in Victoria’. The document sets out site-specific updates in respect of each distribution centre.[41] Subsequent editions of the ‘One Big Shed’ newsletter appeared at Laverton and Barnawartha.[42] These are said by the companies to draw a clear picture of a coordinated campaign.
Returning to the premise of the companies’ first objection, I consider that the evidence does establish that the NUW is pursuing what could be described as a ‘multi-site bargaining strategy’, the slogan or banner for which is ‘one big shed’. This slogan was developed by delegates at the three sites and was endorsed and supported by the union.[43] It represents the concept that members are ‘united together in one big shed to negotiate better terms and conditions.’[44] The evidence also establishes that the ‘multi-site strategy’ involves coordination of bargaining across the three sites. This coordination has various dimensions.
First, the union is seeking some conditions that are common to all three sites; various items in the three logs of claims seek substantially the same thing, even if they do not put forward particularised clauses. However, it is equally clear that the union is seeking to negotiate site-specific terms and conditions at each enterprise. The logs were developed at site level. Although the logs of claims in respect of Laverton North and Barnawartha are similar, there are differences; and the log of claims for Broadmeadows is quite different from the other two, focusing on the pending closure of that site. Bargaining is occurring at each of the three sites, in the course of which some progress has been made, with certain items agreed and others not.
Second, the NUW was, until early August, proposing to adopt a ‘two-stream’ bargaining process. Essentially the same letter was sent to each of the three sites, suggesting that one stream of bargaining address matters that had ‘been raised in Logs of Claims on behalf of members at all sites’; and that a second stream address the remainder of the items on the relevant log for each site, namely the site-specific claims. In the event, the companies rejected the proposed bargaining process and the union resiled from it. It seems to me to have been a procedural proposal. Certain claims made by the union were the same across the three sites. The union considered it would be more efficient to have a team of negotiators focused on these issues. The companies disagreed. The union’s two stream proposal was no doubt fervently pursued; however it was not persisted with beyond 8 August 2017 and the companies accept that the union abandoned it.[45] I note that the letters of 7 July 2017 all state that the three Victorian distribution centres will be engaged in bargaining for replacement agreements this year. There is no suggestion in the letter that a single agreement is being pursued across the three sites.
A third element of coordination is that the NUW has been communicating with members jointly across the three sites about bargaining that is occurring at all of the sites.[46] The ‘One Big Shed Newsletter edition 1’ contains sections addressing developments at the three sites. Communications have also related to common conditions sought at all sites. However, they have also addressed the site-specific conditions that are being pursued in respect of each agreement. The union has been communicating directly and separately with the membership at the individual sites. For example, on 21 August 2017 a copy of a document entitled ‘NUW EBA News edition 1, 15 August 2017’ was displayed at the MLDC at Laverton North, providing a detailed update on negotiations for a new agreement at that site.[47]
A fourth dimension of the coordination is that the NUW is quite openly seeking to maximise the potential industrial impact that might arise from the fact that it is bargaining in relation to three sites at the same time. It acknowledged from the bar table that ‘of course’ the union will coordinate the making of protected action ballot applications.[48]
Another element of coordination, or perhaps a consequence of the coordination, is that members at the three sites perceive themselves to have a common interest, and appear to be aware of the additional bargaining power that may arise because of the fact that the three sites are in bargaining at the same time. So much is evident from the written material referred to above, for example the MLDC NUW members’ post that states that members across the three sites ‘support each other’. In cross-examination, Mr Auld agreed that part of what animates delegates at the three sites is to coordinate the bargaining across the sites.[49] Mr Schmidt said that the ‘One Big Shed’ slogan conveyed the idea that ‘we are all in this together’ and ‘one united front’.[50]
Significance of the coordination
What are the implications of the union’s coordination of bargaining across the three sites, as regards the question of whether the NUW has been and is genuinely trying to seek agreement with the respective employers at those sites?
The fact that the union has a ‘multi-site bargaining strategy’ does not of itself contradict the union’s claim that it is genuinely seeking to reach agreement at each individual site. Whether the union has been, and is, genuinely trying to reach agreement entails a consideration of all the circumstances, including the union’s objective and the measures and efforts it employs to achieve it. A strategy can of course be relevant to, or reveal or suggest, the presence of a particular objective or intention.
If the union were ‘surface bargaining’ at the site level for site-specific agreements, but in fact wanted to achieve a single agreement to apply across all three sites, there would be a question about the genuineness of its bargaining. However, if the union had wanted to pursue a single agreement across the three sites, it could have sought to do so.[51] There is no reason to suppose that the union would seek to do covertly something that it could have done overtly. In any event, the evidence does not establish that the union is or has been seeking to bargain for a single agreement across all sites. Rather, the evidence establishes that the NUW is and has been pursuing separate agreements at each of the three sites.
Similarly, if the union’s ‘multi-site strategy’ had made negotiations or agreement at one site conditional on agreement at another site, there might be a basis to question the genuineness of its efforts to reach agreement at the first site. In this regard, questions might arise if in bargaining at one site negotiations were held up, or rigid positions adopted, or ultimatums made, in connection with what was occurring at another site. However, there is no evidence of anything of this kind in the present matters. Mr Auld’s evidence was that the union’s objective in negotiations at Laverton North was to reach an agreement about the ‘Liquor DC’ (i.e. that site), and that the same applied in relation to the negotiations at the Broadmeadows facility – the objective was to reach agreement for that site.[52] Mr Auld’s evidence was that if an agreement were not to be reached at Broadmeadows, the union would still be prepared to reach agreement at Laverton North, and vice versa.[53] Mr Schmidt’s evidence was to a similar effect in relation to the negotiation he was leading at Barnawartha.[54] This evidence was not contradicted and I accept it.
I asked Mr Auld what he meant by subscribing to the statement, apparently expressed by members or delegates, that the union was seeking to develop a new standard. He said that there was an opportunity to get a good outcome for warehouse workers across Victoria, and that if the union gets a good outcome in a workplace it refers to that outcome when negotiating other agreements.[55] He said such an outcome would be the standard that is set in the industry of warehousing.[56] I understood Mr Auld to mean that an outcome at a particular site might become a standard in the sense of a benchmark, rather than a template for uniform conditions that the union would insist upon at other sites.
The evidence does not support a conclusion that the union is pursuing uniform claims at the three sites currently in question, let alone other sites. Even in relation to the common conditions that the union is pursuing at the three sites (and there are in each case site-specific claims), the union is not insistent upon the companies’ acceptance of those claims. I asked Ms Mitchell whether the union had ever indicated to her that all of the ‘stream one’ or ‘common’ conditions in the logs had to be accepted in order for agreement to be reached at the site. Ms Mitchell said no.[57] In my view the potential use by the union of certain claims or outcomes as a ‘standard’ or benchmark in other negotiations does not affect the genuineness of its efforts to reach agreement at the three sites. In the circumstances of the present applications, it is clear that there is substantive bargaining for a site specific agreement with the relevant employer at each site.
Further, the ‘coordination’ involved in the making of multiple PABO applications does not of itself impugn the genuineness of the union’s efforts to reach agreement with the employers at the three sites. I perceive nothing in the framework of the Act generally or Part 3-3 in particular that would suggest otherwise. Whilst it was not the subject of argument, I note that multiple PABO applications are contemplated by the Act. Section 442 provides that two or more applications for PABOs may be dealt with at the same time, if they relate to the same employer or to employees at the same workplace, and the Commission is satisfied it will not unreasonably delay their determination.[58] Multiple applications not meeting the requirements of s.442 must be dealt with separately; but there is nothing that prevents or discourages them.
The companies invited me to draw an inference that, just as the PABO applications were coordinated, so too would be future industrial action, and that this would undermine bargaining at the enterprise level.[59] However, future industrial action will either be protected or unprotected. Protected action would be unlikely to undermine bargaining at the enterprise level. If the action is not protected, the relevant employer, and perhaps others, will have remedies against it. In this regard, employee claim action must, in order to be protected, be organised or engaged in ‘against an employer that will be covered by the agreement’.[60] If industrial action at a particular site were in some way to be directed against various employers, there might be a question as to whether it constitutes employee claim action and is capable of attracting the protection of the Act. In any event, the status of future industrial action will depend on how it is organised and taken; I do not consider it to affect the analysis of genuineness in the present applications.
The companies also contended that the NUW’s apparent endeavour to coordinate the taking of protected industrial action means that it has an extraneous intention, object or purpose, namely to engage in ‘a coordinated superficial bargaining process so that it might take protected industrial action at three sites at the same time, consistent with its coordinated multi-site bargaining strategy.’[61] The companies referred to the decision of the Full Bench in JJ Richards and Sons v TWU,[62] where VP Lawler and Bissett C stated that the genuineness or authenticity of an applicant’s efforts to reach agreement will turn on its ‘motivation – the intention, object or purpose.’[63] Genuine intentions to reach agreement were contrasted with cases where the applicant has ‘in truth some other, extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act’.[64] Examples cited were the application of pressure in pursuit of political or environmental goals or simply punishing the employer for some perceived wrongdoing.
If bargaining had been superficial, as contended by the employer, this would be a reason to question the genuineness of efforts to reach agreement. However, that is not the case here.
Further, if the union’s coordination of bargaining at the three sites had been such that the taking of coordinated protected action had become the true focus, rather than reaching agreement, it might have compromised the genuineness of the bargaining. But there is no evidence of that in the present case. The fact that the union seeks to maximise the impact of any protected industrial action it might organise does not of itself speak against the genuineness of its efforts to reach agreement. I do not consider that the NUW’s efforts to reach agreement at the three sites in the present matters are affected by an extraneous purpose.
The union and its members are fully aware of the increase in industrial leverage they might exercise because of the temporal alignment and ‘coordination’ of the negotiations across the sites. However, the Act contemplates the application of economic and industrial pressure in pursuit of enterprise bargaining claims, subject to various legal requirements. Provided it is done within the framework of the Act, a bargaining representative may seek to maximise the industrial efficacy of its negotiations and any protected industrial action that is taken.
In my opinion, the various elements of the union’s coordination across the three sites, and its ‘multi-site strategy,’ do not tell against a conclusion that the NUW has been and is genuinely bargaining for new agreements at the three sites with the respective employers.
‘Pattern bargaining’
Part of the companies’ first objection to the applications was that the NUW is prosecuting a ‘pattern bargaining strategy.’[65] This contention was not developed in argument, but for completeness it is appropriate that I respond to it. Pattern bargaining is a concept defined in the Act. Section 412 provides as follows:
‘412 Pattern bargaining
(1) A course of conduct by a person is pattern bargaining if:
(a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and
(b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and
(c) the course of conduct relates to 2 or more employers.
Exception—genuinely trying to reach an agreement
(2) The course of conduct, to the extent that it relates to a particular employer, is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer.
(3) For the purposes of subsection (2), the factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include the following:
(a) whether the bargaining representative is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the agreement;
(b) whether the bargaining representative is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees;
(c) whether the bargaining representative is meeting the good faith bargaining requirements.
(4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies.
Genuinely trying to reach an agreement
(5) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.”
The provision makes clear that a person is not engaged in pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with a particular employer (s.412(2)). Various considerations are listed by reference to which this question is in turn to be decided, including whether the bargaining representative has shown preparedness to take into account the circumstances of that employer.
It is clear to me that the NUW is prepared to take into account the circumstances of the particular employers. On my evaluation of the evidence in the three present matters, and having regard to the considerations above, I do not identify a basis to conclude that the NUW is engaged in pattern bargaining.
I take note of s.412(5), which provides that the meaning of ‘genuinely trying to reach agreement’ as used elsewhere in this Act (such as in s.443), is not affected by s.412.
Ground 2 – non-pertaining matters
I turn now to consider the companies’ second objection to the applications, which is that the union is pursuing claims that do not pertain to the employment relationship, and for this reason has not been and is not genuinely trying to reach agreement with the relevant employers.
Woolstar’s objection to the applications concerning Laverton North and Barnawartha is that the NUW is not genuinely trying to reach agreement because it is seeking to have included in the proposed agreements restrictions on outsourcing arrangements and the future use of contractors.[66]
Point 2 of item 6 of the log in the Laverton North application contains the following claim:
‘That in the case of outsourcing, the Employer ensures that workers engaged to perform the work receive rates of pay and conditions that are no worse than those received by existing employees.’[67]
The same claim is included in the log of claims in the Barnawartha application.[68] No analogue is found in the log of claims in the Broadmeadows application.
It was contended that this clause concerns a provision restricting or qualifying the employers’ right to use contractors and does not pertain to the employment relationship. Reliance was placed on the decision of the Federal Court in Wesfarmers Premier Coal Pty Ltd[69] and the Full Bench of the Commission in Esso.[70]
However, these decisions do not support the contention that point 2 of item 6 does not pertain to the employment relationship. The clause at issue in Wesfarmers was very different from the NUW claim above. It provided that contractors could not be used to reduce the number of direct employees.[71] Esso cited and followed Wesfarmers and found that similar clauses did not pertain to the employment relationship. However in Esso, another clause, that was to a similar effect as the claim in point 2 of item 6 in the Laverton North log, survived.[72] Evidently the Full Bench considered that such a claim did pertain to the employment relationship for the purposes of the Act.
In the course of oral argument, the companies suggested that, to the extent that Esso had found that a clause of the kind in point 2 of item 6 pertains to the employment relationship, it was wrong. I do not agree. It is sufficient to refer to the provisions of the Explanatory Memorandum to the Act which address the meaning of ‘permitted matters’ for the purpose of s172(a):
672. It is intended that the following terms would be within the scope of permitted matters for the purpose of paragraph 172(1)(a):
…·Terms relating to conditions or requirements about employing casual employees or engaging labour hire or contractors if those terms sufficiently relate to employees’ job security – e.g. a term which provided that contractors must not be engaged on terms and conditions that would undercut the enterprise agreement.’
There may be jurisprudential debates to be had about the line of cases tracing back to Re Cocks[73] and Re Moore,[74] and the position that contractor ‘jump up’ clauses pertain to the employment relationship because of their nexus with job security. However, the position under the Act is quite clear. Clauses of the kind in point 2 of item 6 in the Laverton North log pertain to the employment relationship for the purposes of s.172.
In relation to the Broadmeadows site, a different non-pertaining matter was said to be at issue, namely an item in the log of claims concerning redeployment to a possible new site at Lyndhurst that may become a successor facility to the Broadmeadows distribution centre. The redeployment claim in the log for that site reads as follows:
6. In relation to redeployment opportunities, that:
· Employees at the Hume DC will be guaranteed offers of and have the option to accept any job opportunities that arise in other parts of the Woolworths Group between now and the closure of the Hume DC (agreed transition and recruitment process, with agreement reached on how job opportunities are communicated to employees);
· Employees at the Hume DC will be guaranteed the opportunity to transfer to the new DC at Lyndhurst (and provided with necessary reskilling where necessary);
· The parties will agree on the terms and conditions that will apply at the Lyndhurst DC; and
· The Employer will provide a relocation / transition allowance to employees who are redeployed.
QPI contended that the second and third points above do not pertain to the employment relationship because they relate to future employment, and that it is not clear that QPI would even be the employer. I see no substance in the contention that the clauses relate to ‘future employment’. As to the employing entity, the claims, as they are cast, say nothing about employment of current employees by other entities. There is no evidence that the union presented these particular points in a way that would have them apply to employers other than QPI (for example, a demand that, whatever entity may be the employer at a new facility, it will employ current QPI employees). As I understand the evidence, it is at least a possibility that QPI will be the employer at the new facility. I do not consider that points 2 and 3 of item 6 in the log for Broadmeadows are claims that do not pertain to the employment relationship.
I was not addressed on the first point in item 6 of the Broadmeadows log. That claim is that QPI employees ‘will be guaranteed offers of … any job opportunities that arise in other parts of the Woolworths Group’. Pursuant to this claim, QPI would be required to secure offers of employment for its current employees from other group employers. I consider there to be at least a question as to whether a claim such as this pertains to the employment relationship between QPI and its employees. The claim may well seek to pre-empt the consideration by QPI of reasonable redeployment opportunities, including within associated entities, for the purposes of s.389(2) of the Act. But it goes beyond this to require a guarantee of offers that arise within the entire group of companies.
I note that this claim differs from the proposed terms in the other two logs, whereby employees at the respective sites would be ‘provided any other job opportunities that arise in other parts of the Woolworths Group’. This claim appears to me to be more compatible with the status of a provision pertaining to the employment relationship.
However, I do not consider it necessary to finally determine the question of whether these claims pertain to the employment relationship. As noted by the Full Bench in Esso, the fact that an applicant for a PABO is, or has been, pursuing a claim about a non-permitted matter is relevant to the Commission’s analysis of the test in s.443, however it is not determinative of it. A range of factual considerations may be relevant in considering the significance to be attributed to a union’s pursuit of non-permitted matters.[75] Among these considerations is the question of whether the applicant believed the claims in question to be about a permitted matter, and whether there is legal clarity about the status of those claims.[76] This approach to the relevance of non-permitted claims for the purposes of s.443 is consistent with the statutory scheme, and in particular s.409, which defines ‘employee claim action’ as industrial action organised or engaged in for the purpose of supporting or advancing claims that are ‘only about, or are reasonably believed to only be about, permitted matters.’
In this case, no concerns were raised with the union about the status of item 6 in the Broadmeadows log by the employer at any point prior to the hearing before me on 17 October 2017. Mr Auld gave evidence to this effect.[77] It was not contradicted. He also stated that the parties had spent little time discussing points 2 and 3. There was no evidence concerning how much time was spent on point 1; but there is nothing to suggest it has been a significant point in negotiations. It appears from Mr Auld’s evidence that the focus has been on claims 7 and 8.[78]
In the circumstances, I consider that the union’s pursuit of the various points in item 6 of the Broadmeadows log poses no impediment to a finding that the NUW has been, and is, genuinely trying to reach agreement with QPI at the site.
For completeness, I note that Woolstar did not raise concerns with the union about the status of the contractor claim in the Laverton North log, or, it would appear, in the Barnawartha log. Nor do these claims appear to have been a prominent feature of the negotiations at the respective sites. Accordingly, had I harboured concerns about the permitted status of these claims, I would have concluded that in the circumstances, the union’s pursuit of them did not impugn the genuineness of its efforts to reach agreement.
Conclusion as to genuine efforts to reach agreement
Before a PABO can be issued, the Commission must be satisfied that each applicant has been, and is, genuinely trying to reach agreement with the relevant employer.
Mr Auld and Mr Schmidt, the organisers responsible for the union’s bargaining at the three sites, gave evidence that their objective in bargaining at each site is to reach agreement. I accept this evidence. I note also that accompanying the applications in the three matters was a statutory declaration of Mr Mujkic, in which he attests that the union has been, and is, genuinely trying to reach agreement with the relevant employer.[79] Ms Mitchell acknowledged in her evidence that she believed the NUW wants to reach agreement with Woolstar at Laverton North.
The evidence relating to the details of the negotiations that have occurred between the NUW and the two companies at the three sites is set out above. In particular, there is a log of claims for each site, with certain site-specific claims; at each site there have been numerous meetings, some items have been agreed to and some concessions have been made. In my view the evidence supports a conclusion that the union has been, and is, trying to reach agreement with the employers of the employees whom it is proposed to ballot.
As noted earlier, I have considered the companies’ objections to the applications. In my view the matters raised do not compromise the genuineness of the union’s efforts to reach agreement at each site with the relevant employers.
In relation to the Laverton North application (B2017/963), I have taken into account all of the circumstances of the bargaining that is occurring between Woolstar and the NUW in relation to a proposed enterprise agreement at Laverton North. I am satisfied that the NUW, being the applicant for a PABO, has been, and is, genuinely trying to reach an agreement with Woolstar, the employer of the employees who are to be balloted.
In relation to the Barnawartha application (B2017/971), I have taken into account all of the circumstances of the bargaining that is occurring between Woolstar and the NUW in relation to a proposed enterprise agreement at Barnawartha. I am satisfied that the NUW, being the applicant for a PABO, has been, and is, genuinely trying to reach an agreement with Woolstar, the employer of the employees who are to be balloted.
In relation to the Broadmeadows application (B2017/981), I have taken into account all of the circumstances of the bargaining that is occurring between QPI and the NUW in relation to a proposed enterprise agreement at Broadmeadows. I am satisfied that the NUW, being the applicant for a PABO, has been, and is, genuinely trying to reach an agreement with QPI, the employer of the employees who are to be balloted.
Extension of the 3 day period
The companies sought an order pursuant to s443(5) that the period of written notice referred to in s.414(2)(a) be longer than three working days and that instead any PABOs issued by the Commission in the present applications specify a longer period, namely seven working days.
Section 443(5) provides that, if the Commission is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying a longer period of written notice, the ballot order may specify a period of up to 7 working days.
No evidence was led by the companies about the exceptional circumstances that were said to justify a longer period of written notice of protected industrial action. Submissions were made from the bar table at the conclusion of the hearing in relation to the Broadmeadows application, which submissions pertained also to the Laverton North and Barnawartha applications, that I should take notice of the nature of the business conducted at the three sites, namely that they distribute food and liquor out of the Victorian distribution centre network to retailers around the state and to parts of New South Wales and the ACT. Among the products that are distributed are fresh fruit and vegetables as well as dairy products. Concerns were raised about the impact of industrial action on perishable goods. The companies contended further that there is in prospect the possibility of serious industrial action in the lead up to Christmas.
I have taken these submissions into account. I also note that the three sites may become subject to protected industrial action at the same time, and that the forms of industrial action contemplated include indefinite stoppages. However, all of this paints only a general picture of the possible implications for the companies of protected industrial action occurring.
There is no evidence or detailed information before me as to how particular industrial action is likely to impact upon the companies, which products or operations are most at risk at which sites and why, the nature of any mitigation options available to the respective companies to deal with particular risks at their sites, why three clear working days’ notice is not sufficient to allow for effective mitigation, and why an extension of the 3 working day period to seven (or some other number of days) would be an appropriate measure to address the particular concerns.
The discretion afforded to the Commission to specify a period of notice in excess of 3 working days is qualified by the requirement that I be satisfied that there are exceptional circumstances justifying a longer period of notice. In my view the Commission must have a sound basis for its satisfaction; generalised predictions as to the consequences of industrial action are not sufficient.
In these circumstances, mindful of the decision of the High Court in Coal & Allied in an analogous jurisdictional context,[80] I am not satisfied that there are exceptional circumstances justifying the period of written notice referred to in s414(2)(a) being longer than three working days.
Conclusion
Having regard to all of the circumstances of the bargaining in the three present matters, I am satisfied that the NUW, the applicant for PABOs in the Laverton North, Barnawartha and Broadmeadows applications, has been and is genuinely trying to reach agreement with the respective employers.
I am also satisfied that the restrictions on the making of an application under section 437(2A) and 438(1) are not applicable in the circumstances of any of the three applications, and that the other statutory criteria for the granting of a PABO in each application have been met.
I was satisfied of the above matters at the time of making the orders referred to in paragraph [1] above.
Protected action ballot orders were issued in PR597010, PR597011 and PR597012.
DEPUTY PRESIDENT
Appearances:
Dario Mujkic for the NUW
Nick Harrington of counsel for Woolstar Pty Ltd and Queensland Property Investments Pty Ltd
Hearing details:
2017
Melbourne
17 October
[1] Respondent’s Amended Outline of Submissions at paragraph 5(a)
[2] Transcript of proceedings in relation to the Laverton North application, PN19 - 21
[3] 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
[4] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; Application by NUW [2016] FWC 6262 at 25
[5] Exhibit A1
[6] Exhibit WM8 to the witness statement of Ms Mitchell
[7] Ibid, Exhibit WM12
[8] Ibid, Exhibit WM13
[9]Transcript of proceedings in relation to the Laverton North application, PN64
[10] Ibid, PN66-71, 77
[11] Ibid, PN63
[12] Ibid, PN160
[13] Ibid, PN156
[14] Ibid, PN422
[15] Ibid, PN426
[16] Exhibit WM9 to the witness statement of Ms Mitchell
[17] Transcript of proceedings in relation to the Barnawartha application, PN8
[18] Ibid, PN27
[19] Ibid, PN28
[20] Ibid, PN35
[21] Ibid, PN100, 104
[22] Exhibit WM6 to the witness statement of Ms Mitchell
[23] Transcript of proceedings in relation to the Broadmeadows application, PN18, 56, 57
[24] Ibid, PN8-11
[25] Ibid, PN63
[26] Respondent’s Amended Outline of Submissions at paragraph 5(a)
[27] Witness statement of Ms Mitchell at paragraph 6
[28] Witness statement of Ms Mitchell at paragraph 7; attachment WM2
[29] Note that at PN88 the transcript records Mr Auld saying that it is a document that ‘has been produced internally by the union.’ My clear recollection is that Mr Auld said the document was not internally produced. The transcript has omitted the word ‘not’. See also cross examination at PN168, which reflects this position.
[30] Transcript of proceedings in relation to the Laverton North application, PN180-181
[31] Witness statement of Ms Mitchell at paragraph 10; attachment WM7
[32] Transcript of proceedings in relation to the Laverton North application, PN93-216
[33] Witness statement of Ms Mitchell at paragraph 14; attachment WM11
[34] Attachment WM10 to the statement of Ms Mitchell
[35] Transcript of proceedings in relation to the Laverton North application, PN98
[36] Ibid, PN201
[37] Ibid, PN207
[38] Witness statement of Ms Mitchell at paragraph 20; attachment WM14
[39] Respondent’s Amended Outline of Submissions at paragraph 15(d)
[40] Witness statement of Ms Mitchell at paragraph 23; attachment MW17
[41] Exhibit WM17 to the witness statement of Ms Mitchell
[42] Respondent’s Amended Outline of Submissions at paragraphs 19-21. See also Statement of Ms Mitchell at paragraphs 24-26
[43] Transcript of proceedings in relation to the Laverton North application, PN102, 281
[44] Ibid, PN289
[45] Ibid, PN600
[46] Ibid, PN291
[47] Witness statement of Ms Mitchell at paragraph 21; attachment MW15
[48] Transcript of proceeding in relation to the Laverton North application, PN532, 533
[49] Ibid, PN278
[50] Transcript of proceedings in relation to the Barnawartha application, PN54 and 48
[51] See s.172(2) and (5) of The Act
[52] Transcript of proceedings in relation to the Laverton North application, PN103, 104
[53] Ibid, PN312, 315, 316, 323, 324
[54] Transcript of proceedings in relation to the Barnawartha application, PN28
[55] Transcript of proceedings in relation to the Laverton North application, PN333
[56] Ibid, PN346, 347
[57] Ibid, PN431
[58] The Laverton North and Barnawartha applications could have been heard at the same time. I decided to deal with the three matters successively.
[59] Respondent’s Amended Outline of Submissions at paragraphs 22 to 26
[60] Section 409(1)(b) of The Act
[61] Respondent’s Amended Outline of Submissions, paragraph 29
[62] [2010] FWAFB 9963
[63] Ibid at paragraph 58
[64] Ibid at paragraph 63
[65] Respondent’s Amended Outline of Submission, paragraph 5(a)
[66] Respondent’s Amended Outline of Submissions, paragraph 5(b)
[67] WM4 to the witness statement of Ms Mitchell
[68] WM5 to the witness statement of Ms Mitchell
[69] (2004) 138 IR 362, at 109, per French J
[70] [2015] FWCFB 210 at 72
[71] The clause is set out at [104] of the decision
[72] See paragraph [71] of Esso, in the context of the contractor clause in question which is set out at paragraph [19]; see also the discussion at [107] in Wesfarmers concerning Re Cocks (1968) 121 CLR 313 and Re Moore (1978) 140 CLR 470
[73] R v Judges of the Commonwealth Industrial Court; Ex parte Cocks (1968) 121 CLR 313
[74] R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470
[75] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2015) 257 IR 5; [2015] FWCFB 210 at 59
[76] Ibid
[77] Transcript of proceedings in relation to the Broadmeadows application, PN47
[78] Ibid, PN46
[79] Statutory declaration of Mr D Mujkic, dated 12 October 2017 at Question 2.1, paragraph 1; Statutory declaration of Mr D Mujkic, dated 13 October 2017 at Question 2.1, paragraph 1; Statutory declaration of Mr D Mujkic, dated 16 October 2017 at Question 2.1, paragraph 1.
[80] See Coal and Allied v AIRC [2000] HCA 47; 203 CLR 194; 74 ALJR 1348; 99 IR 309; 174 ALR 585 (31 August 2000), at 28, per Gleeson CJ, Gaudron and Hayne, concerning s.170MW(3) of the WR Act and the requirement that the Commission be ‘satisfied’ that industrial action was threatening ... to cause significant damage to the Australian economy or an important part of it’.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR596985>
0
6
0