The Australian Maritime Officers' Union v Argonaut Group Pty Ltd T/A Argonaut Marine Group

[2020] FWC 2064

[2020] FWC 2064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Maritime Officers’ Union
v
Argonaut Group Pty Ltd T/A Argonaut Marine Group
(B2020/236)

DEPUTY PRESIDENT BINET PERTH, 21 APRIL 2020

Proposed protected action ballot of employees of Argonaut Group Pty Ltd T/A Argonaut Marine Group.

[1] On 15 April 2020, The Australian Maritime Officers Union (AMOU) applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cwth) (FW Act).

[2] The Application seeks an order for a ballot to be conducted of employees of Argonaut Group Pty Ltd T/A Argonaut Marine Group (Argonaut) who would be covered by the proposed agreement who are represented by the AMOU or who are bargaining representatives for themselves but are members of the AMOU (Proposed Agreement).

[3] The Application was the subject of a conference on 20 April 2020 following email advice from Argonaut on 16 April 2020 that the Application was opposed (Conference). The Application proceeded to a hearing the same day (Hearing).

[4] Argonaut sought permission to be represented by a paid agent at the Hearing. The granting of leave to Argonaut was opposed by the AMOU.

[5] Having considered the submissions of the AMOU and Argonaut, leave was granted to Argonaut to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[6] Mr Glen Walsh of the AMOU gave evidence on behalf of the AMOU at the Hearing and Mr Tony Hurley gave evidence on behalf of Argonaut.

[7] The FWC is obliged to issue a protected ballot order in the following circumstances:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

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

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

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

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

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

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

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

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

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

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

[8] Section 437 relevantly provides as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

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

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

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

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

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

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

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

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

(b) either:

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

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

Documents to accompany application

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

[9] It is not in dispute that the AMOU has standing to make the Application in its capacity as a bargaining representative. The parties agree that a Notice of Representational Rights was issued on 16 September 2019 in relation to the Proposed Agreement and that the Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement. The Application specifies the group of employees who are to be balloted. The AMOU have proposed that the Australian Electoral Commission conduct the ballot. The parties agreed that the date by which the ballot should close would be thirty days to accommodate delays arising from the COVID-19 epidemic.

[10] The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. Argonaut initially raised an objection to two of the questions based on safety concerns. During the Conference, the parties discussed a modification to the questions to be put to the voters in the ballot and this was subsequently incorporated in the questions to be put to the voters by agreement between the parties.

[11] The Application was accompanied by the documents and other information prescribed by the Fair Work Regulations 2009 (Cwth).

[12] I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act.

[13] The FWC may only make the order sought if 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.

[14] The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is”, imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.

[15] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers' Union (AWU)  1, the Full Bench stated:

“Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad”  2 (references omitted)

[16] In Total Marine Services Pty Ltd v Maritime Union of Australia  3 a Full Bench of Fair Work Australia relevantly stated:

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

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement...”

[17] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.

[18] The AMOU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date. Those facts are as follows and are not contested. 4

a. The first enterprise bargaining meeting took place on 16 October 2019.

b. The AMOU forwarded a log claims to Argonaut on 25 October 2019.

c. Subsequent meetings to progress the bargaining took place on 2 December 2019 and 20 January 2020.

d. On the morning of 13 March 2020, the AMOU provided Argonaut with a detailed outline of its bargaining position and requested that a bargaining meeting be scheduled for late the next week or shortly thereafter.

e. Later the same day Argonaut replied to the AMOU informing them that Argonaut’s bargaining representative was on leave until the end of March and that Argonaut would provide a response to the AMOU in mid April at the latest.

f. The AMOU responded the same day indicating that in their view mid April was too long a delay and that they would prefer to meet at the beginning of April or earlier if possible. Argonaut responded stating that they would not be in position to respond until their bargaining representative returned from leave. Argonaut advised the AMOU that it would provide a response to the AMOU after their bargaining representative had returned from leave and had an opportunity to consider the AMOU document.

g. On the morning of 9 April 2020, the AMOU wrote to Argonaut stating as follows:

“Further to you [SIC] last correspondence we have yet to receive any confirmation re your availability for our next bargaining meeting.

Given that mid-April is now upon us, we are urgently seeking to meet with you (video conference) to progress bargaining.

I am available from 14 April onwards.”

h. In the afternoon of 9 April 2020, Argonaut provided a response to claims set out in the email the AMOU sent to Argonaut on 13 March 2020 and in the early evening forwarded to the AMOU a revised draft agreement with those responses incorporated in it.

i. On 15 April 2020, the AMOU filed the Application.

[19] As at the date of the Hearing, Argonaut have not responded to the AMOU’s request for a meeting date and the AMOU have not responded to the revised draft agreement.

[20] Argonaut assert that since 9 April 2020 the AMOU have not been bargaining in good faith and not genuinely trying to reach an agreement with Argonaut. As evidence of this Argonaut point to the absence of a response from the AMOU to Argonaut’s email of 9 April 2020, an alleged lack of consideration of Argonaut’s proposal and what Argonaut described as the ‘premature’ filing of this Application. The assertion that the Application is premature appears to be predicated on an assessment by Argonaut that the parties are not deadlocked in their negotiations.

[21] Section 443 imposes no such statutory pre-requisite, nor did Argonaut identify any authority for the position, that the parties must be deadlocked in negotiations before a protected action ballot order may be issued.

[22] The evidence is that the parties have been in negotiations for many months, have had several bargaining meetings and have made considerable progress in reaching agreement. Both parties have articulated their bargaining positions and have provided a considered response to the bargaining positions of the other side.

[23] The negotiations have been characterised by significant delays on the part of both sides. In fact, the evidence of Mr Hurley is that he was not surprised by the lack of a response to Argonaut’s 9 April 2020 as his experience was that the AMOU were often slow in responding and that he anticipated that the AMOU would eventually respond.

[24] Argonaut provided its latest version of the Proposed Agreement after the close of business on the day before Good Friday. There have been four business days between the receipt of the email and the Hearing. Mr Walsh’s evidence is that since 9 April 2020 he has been seeking his member’s feedback on the latest version of the Proposed Agreement and that he proposed to provide the AMOU’s response at the next bargaining meeting. As at the date of the Hearing Argonaut had not yet responded to the AMOU’s request to set a meeting date.

[25] There is no evidence before me that the AMOU are refusing to meet with Argonaut, have not given proper consideration to the proposals put by Argonaut, or are refusing to provide a response to those proposals. At any time in the four business days since Argonaut provided its latest response it could have progressed bargaining more quickly by confirming its availability for a bargaining meeting and/or sought a written response to its proposal. It has not done so. Nor has it chosen to pursue the various statutory remedies available if a party is not bargaining in good faith. In fact, responsibility for the slow progress in bargaining since 13 March 2020 appears to lie with unavailability of Argonaut’s bargaining representative and Argonaut’s failure to confirm a date for the next bargaining meeting.

[26] In all of the circumstances I am satisfied that the AMOU has been, and is, genuinely trying to reach an agreement with Argonaut.

[27] During the Conference convened on 20 April 2020 and at the Hearing, Argonaut made submissions in support of an application that the FWC exercise its discretion to increase the subsection 414(2)(a) notice period of three working days. The AMOU did not oppose this application. I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period to five working days.

[28] Having been satisfied that the requirements of subsections 443(1)(a) and (b) of the FW Act have been complied with, the AMOU application is granted and a protected action ballot order shall be issued.

DEPUTY PRESIDENT

Appearances:
Mr G Walsh for the AMOU
Mr A Drake Brockman for Argonaut Group Pty Ltd.

Hearing details:
2020.
Perth (by telephone):
20 April.

Printed by authority of the Commonwealth Government Printer

<PR718431>

 1   [2015] FWCFB 210.

 2   Ibid at [57]

 3   [2009] FWAFB 368

 4   Exhibit A1