Rivet Energy Aviation Pty Ltd T/A Rivet Energy Aviation v Transport Workers' Union of Australia

[2023] FWC 1108

[2023] FWC 1108

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.240 - Application to deal with a bargaining dispute

Rivet Energy Aviation Pty Ltd T/A Rivet Energy Aviation

v

Transport Workers' Union of Australia

(B2023/432)

COMMISSIONER JOHNS MELBOURNE, 11 MAY 2023

Dispute in relation to a proposed enterprise agreement – recommendation by the Commission

1. On 7 March 2023 (First Application) and again on 10 May 2023 (Second Application) Rivet Energy Aviation Pty Ltd T/A Rivet Aviation (Rivet/Applicant) filed applications in the Fair Work Commission (Commission) to deal with a bargaining dispute in relation to a proposed enterprise agreement (Proposed Agreement) to replace the Rivet Energy Aviation Pty Ltd Enterprise Agreement 2018 (2018 Agreement).

1. The Transport Workers’ Union (TWU) is the bargaining representative for the employees and the respondent to the First and Second Application.

1. On 18 December 2022, the TWU, applied for a protection action ballot order (B2022/1842). On 21 December 2022, the Commission made the protected action ballot order (PR749161).

1. Up until 7 March 2023 there had been no less than 17 bargaining meetings. Despite those meetings, and despite various additional discussions between the parties (including on Monday, 6 March 2023), the parties were unable to resolve outstanding matters including:

a)   wage increases;

b)   backpay;

c)   increase to long service leave entitlements;

d)   the imposition of overtime rates to ordinary hours worked on changed roster shifts;

e)   minimum payment of 40 hours per week (increased from 35 hours per week); and

f)   increased personal leave entitlements to 120 hours per annum.

1. On 2 March 2023, the TWU gave the Applicant notice that its members employed by the Applicant at the Melbourne Airport intended to take employee claim action (in the form of a 24-hour stoppage) commencing at 4:00 am on 8 March 2023.

1. The then impending protected industrial action (PIA) threatened significant third parties such as ExxonMobil, Qantas and Melbourne Airport.

1. The Applicant requested that the TWU suspend the proposed industrial action until the parties had an opportunity to resolve the dispute in the Commission.

1. In respect of the First Application the Commission conducted a conference on 10 March 2023. The bargaining dispute remained unresolved. On 21 April 2023 the Applicant discontinued the First Application.

1. Notwithstanding the impasse in the Commission, discussions continued between the parties, including, as recently as 9 May 2023.

1. The parties are to be commended for having reached agreement on so many issues to be included in the Proposed Agreement.

1. As of 1 May 2023, the Applicant understood there to be only one outstanding item remaining in bargaining; namely wage rise in the first year of the Proposed Agreement:

a)   Rivet had proposed a 5% wage increase; and

b)   the TWU/employees were seeking a 6% wage increase.

1. On 8 May 2023, the TWU gave the Applicant notice that its members employed by the Applicant at the Melbourne Airport intend to take employee claim action (in the form of a 36-hour stoppage) commencing at 5:00 pm this Friday, 12 May 2023.

1. Again, the impending PIA threatened significant third parties such as ExxonMobil, Qantas and Melbourne Airport.

1. Rivet filed the Second Application at 9.16 am yesterday. I listed the matter for a mention/directions hearing and/or conference at 1.00 pm yesterday.

1. Before me the TWU confirmed that there was a continuing dispute about the wage increase in the first year of the Proposed Agreement.  It also advised that there were outstanding issues concerning:

a)   the wording of rostering arrangements; and

b)   the amount of leave union delegates per Site may take to attend courses which are specifically directed towards effective resolution of disputes regarding industrial matters (currently 5 days under clause 5.9 of the 2018 Agreement).

1. However, the most significant obstacle is the rate of pay increase to be paid to employees in the first year of the Proposed Agreement.

1. The parties agreed to go into conference.  The time was usefully spent.

1. Presently, the Commission is unable arbitrate a bargaining dispute without consent of both parties. Consent has not been given in the present matter. However, the Commission may make a recommendation or express an opinion arising out of an agreement negotiation dispute conference.

2. During the conference yesterday, I formed the view that the Commission should make a recommendation in an attempt to bring to a close this protracted dispute that is impacting and has the potential to continue to impact the operations of the Applicant, its employees and the lives of the travelling public.

3. Consequently, at the conference yesterday I offered to issue a recommendation about the outstanding issues.  The parties agreed that I should do so.

1. A recommendation by its very nature is not legally binding and cannot create or impose a legal right or obligation. Its adoption and implementation is dependent upon the consent and goodwill of the parties. I strongly urge both parties to seriously consider endorsing the recommendation I make (below).

RECOMMENDATION

1. This recommendation is issued having regard to the arguments of both parties and the concessions made by the parties to date in an attempt to reach a final agreement on the Proposed Agreement.

1. It is my recommendation that the negotiations for the Proposed Agreement be resolved on the following basis (inclusive of matters already agreed):

a)Rivet pay the following sign-on bonus to employees engaged at the commencement of the Proposed Agreement:

i.for employees with 2 or more years of continuous service with Rivet - $7,000 (gross); and

ii.for employees with less than 2 years of continuous service with Rivet - $2,000 (gross).

b)wage increases under the Proposed Agreement to be as follows:

i.first full pay period after successful vote of the Proposed Agreement, 5.25%;

ii.first full pay period after 7 May 2024, 4.25%; and

iii.first full pay period after 7 May 2025, 4.00%;

c)there be no change to the wording of the clause/s relating to rostering arrangements; and

d)the amount of leave union delegates per Site may take to attend courses which are specifically directed towards effective resolution of disputes regarding industrial matters be increased to 10 days per annum.

1. The parties are to advise each other and the Commission within 7 days of their intention to accept or otherwise the Commission’s recommendation, which if accepted by both parties is intended to resolve the bargaining dispute presently between them.

1. In the intervening period the TWU has confirmed that neither it nor its members will in engage in PIA.

COMMISSIONER

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