The Australian Workers' Union v Sibelco Australia Limited

[2013] FWC 210

[2013] FWC 210

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.459—Protected action

The Australian Workers’ Union
v
Sibelco Australia Limited
(B2012/2124)

Quarrying industry
COMMISSIONER LEWIN	MELBOURNE, 25 JANUARY 2013

Application to extend the 30-day period for protected industrial action - genuinely trying to reach agreement - good faith bargaining - conduct of bargaining representative - relevant considerations - no lack of genuineness.

[1] On 19 December 2012, The Australian Workers’ Union (the AWU) made application under s 459(3) of the Fair Work Act 2009 (the Act) to extend the 30 day period in which protected industrial action by employees of Sibelco Australia Ltd (Sibelco), employed at the company’s Lang Lang quarry in Victoria, is authorised by the result of a protected action ballot.

[2] The application was opposed by Sibelco.

[3] The application was heard at Melbourne on 10 January 2013.

[4] Mr C Winter, an official of the AWU appeared on behalf of the organisation. Ms A Cochrane and Ms L Duggan, employees of the Australian Mines and Metals Association, appeared for Sibelco.

[5] The Commission heard evidence from Mr Patrick Wood, an AWU organiser and Mr Atul Sud, a regional Operations Manager of Sibelco.

[6] At the conclusion of the hearing I decided, extempore, to grant the application and to make an order extending the relevant period. I now publish my reasons for that decision.

[7] The employment of Sibelco’s employees at the Lang Lang quarry is covered by the Unimin Australia Limited - Lang Lang Enterprise Agreement 2009-2012 (Unimin Agreement). The Agreement’s nominal expiry date is 30 September 2012.

[8] Mr Sud gave evidence about the history of bargaining for an enterprise agreement to succeed and replace the current Unimin Agreement. Mr Sud made a witness statement which was affirmed viva voce and tendered as Exhibit R1. It contained the following:

“Chronology of bargaining

4. On or about May 2012, Sibelco agreed to commence bargaining for an enterprise agreement to replace the (existing) Agreement (the Replacement Agreement).

5. On 30 May 2012, a Notice of Employee Representational Rights was issued to all Employees who are eligible to be covered by the Replacement Agreement. A true copy of that Notice is at Attachment A.

6. Since June 2012, Sibelco has met with the AWU on at least six occasions for the purposes of reaching agreement as to the terms of the Replacement Agreement.

In particular there were formal negotiation meetings held on each of the following dates:

a) 13 June 2012

b) 11 July 2012

c) 25 July 2012

d) 8 August 2012

e) 21 August 2012

f) 4 September 2012

7. I attended each of the meetings referred to above, on behalf of Sibelco, together with Dean Achterdenbosch (dry plant superintendent), Tony Lowndes (employee representative), Michael McMaster (employee representative), Craig Robertson (shop steward), Patrick Wood (AWU organiser), Martine Cox (senior HR advisor), and Tony Bradford (AMMA).

8. On 19 and 20 September 2012, Martine Cox and I conducted briefings directly with the Employees regarding the Replacement Agreement. During these briefings, Martine and I explained the basis for the terms and conditions proposed to be included in the Replacement Agreement. These were set out in a power point presentation, a true copy of which is at Attachment B.

9. The Agreement expired on 30 September 2012.

10. I am aware that, on or about 27 September 2012, Tony Bradford met with Craig Winter and Patrick Wood to discuss the terms of the proposed Replacement Agreement. I did not attend that meeting.

11. On 12 October 2012 Sibelco’s General Manager, John McBride, attended a meeting with Employees working in the Production Teams to discuss the importance of a 38 hour week to the business. During those meetings, some of the Employees requested that John McBride provide possible shift patterns that would be applicable to the proposed 38 hour week.

12. On 8 November 2012, John McBride and I had a face to face meeting with the Employees working in the Production Teams to discuss possible shift patterns for a 38 hour week.

13. On 9 November 2012, an order was issued by Fair Work Australia for the AWU to hold a protected action ballot of the Employees. A true copy of that Order is at Attachment C.

14. On 29 November 2012, a formal negotiation meeting was scheduled with the AWU but their representative did not attend. Sibelco did not receive any explanation as to why no AWU representative was present at that meeting.

15. On 30 November 2012, the protected action ballot result was declared. A true copy of the Declaration of result is at Attachment D.

16. On 6 December 2012, the Employees were provided access to the written text of the proposed Replacement Agreement and were briefed by Sibelco on the content of the proposed Replacement Agreement including material incorporated.

17. 0n 10 December 2012, Patrick Wood of the AWU met with the Employees. I did not attend that meeting but I understood that the purpose was to discuss the proposed Replacement Agreement.

18. On 17 and 18 December 2012, the Employees voted on the Replacement Agreement using a ballot box. All 34 Employees who were eligible to vote did vote, and the results of the vote were as follows:

a) 0 employees voted YES

b) 33 employees voted NO

c) 1 employee’s vote was invalid.”

[9] Mr Wood did not dispute Mr Sud’s evidence about the chronology of the bargaining for the agreement.

[10] Mr Wood gave evidence about the conduct of the AWU. In particular, Mr Wood’s evidence included what was done by the AWU between the 29th of November and the conduct of the ballot of the employees on Sibelco’s proposed terms for an enterprise agreement referred to in paragraphs 18 of Mr Sud’s evidence.

[11] Mr Wood was unable to attend the bargaining meeting on the 29th of November, due to involvement in an industrial dispute in Mildura. Mr Wood’s evidence is that subsequent to the meeting he had a conversation with Mr Craig Robertson, who is the elected AWU employee representative for the Lang Lang site under the rules of the union, about the proceedings and business of the meeting.

[12] It was Mr Sud’s evidence that at the meeting subsequent to the meeting of 29 November it was proposed by Sibelco that the relevant employees be asked to vote in a ballot be held on 12 and 13th of December on Sibelco’s proposed terms for an enterprise agreement.

[13] Mr Wood’s evidence is that in light of Sibelco’s proposal that employees vote on Sibelco’s proposed enterprise agreement the AWU decided that it would not authorise the taking of protected industrial action by giving the notice required by s.414 of the Act before that vote was completed and the result known. Mr Wood’s evidence was that in his discussions with Mr Robertson he made it clear that if a majority of employees voting in the ballot voted in favour of Sibelco’s proposed enterprise agreement an agreement would be made for the purposes of the Act.

[14] The relevant provisions of s.414 are set out below:

“414 Notice requirements for industrial action

Notice requirements—employee claim action

(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.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

...

Notice requirements—content

(6) A notice given under this section must specify the nature of the action and the day on which it will start.”

[15] As it transpired the dates for the voting proposed by Sibelco were altered and the voting occurred on 17 and 18 December, to ensure that all employees would be able to cast a ballot, which it will have been observed proved to be the case.

[16] Mr Winter noted that the outcome of the voting in the ballot for Sibelco’s proposed enterprise agreement occurred at a time proximate to the 2012 Christmas holiday period, during which the quarry closed down. At the hearing Mr Winter informed the Commission that a number of employees returned to work on 7 January and others would do so subsequently. This was not contested by Sibelco.

[17] Ms Cochrane for Sibelco has submitted that the AWU has not been, or at least has not been since the 29th or 30th of November 2012, genuinely trying to reach agreement with Sibelco for an enterprise agreement.

[18] At this point it is pertinent to refer to the decision of Fair Work Australia, of 9 November 2012 1, to make an order for a protected action ballot of Sibelco’s Lang Lang quarry employees.

[19] An extract of that decision is set out below:

“[3] On 8 November 2012 the AWU filed in the Tribunal an outline of bargaining efforts to date, in order to demonstrate to the Tribunal that the AWU has been and is genuinely trying to reach an agreement.

[4] Sibelco does not oppose the making of the protected action ballot order sought by the AWU.

...

[6] Pursuant to s.443 (1)(b) I am satisfied that the AWU has been, and is, genuinely trying to reach an agreement with Sibelco.”

[20] There is nothing before me which would cause me to take a different view of the history of the bargaining for the proposed enterprise agreement up until the date of that decision.

[21] In support of the submission that the AWU has not been genuinely trying to reach agreement with Sibelco, Ms Cochrane referred to the absence of Mr Wood from the meeting on 29 November, as evidence of the disingenuousness of the AWU as a bargaining agent of the employees. I am not persuaded by this submission.

[22] Mr Wood was personally unable to attend the meeting because of conflicting demands upon his time. Moreover, Mr Robertson was an elected representative of the AWU members at the Lang Lang quarry as provided for by the rules of the union and able to participate in the bargaining for the proposed enterprise agreement on behalf of the AWU accordingly on 29 November.

[23] Moreover, Mr Wood engaged with the subject of the meeting and what action the AWU should take in light of Sibelco’s proposals at the meeting. In particular, Mr Wood discussed with Mr Robertson what the AWU’s actions should be in light of Sibelco’s proposal that their terms and conditions for a proposed enterprise agreement be put to a vote in mid December.

[24] Mr Wood’s evidence 2 is as follows:

“MR WINTER: It’s been noted that there’s been no protected action take place after 30 November; after the declaration. What was the reason why no industrial action occurred?---Due to the fact that the company were going to put that to a vote. They made that clear on the 29th. They were going to have information sessions. We spoke to Craig, the site delegate, and Tony and Mitch - - -

THE COMMISSIONER: Who spoke to Craig?---Myself. We talked about that the most important thing was that we allow the company to have their vote and the results of that if it gets up, well then it’s an agreement. If it fails then we talk about taking industrial action then but there’s no point doing it in the meantime.”

[25] There was no challenge to Mr Wood’s evidence in this respect.

[26] It follows from this evidence that between the making of the decision of the Tribunal to issue a protected action ballot order on 9 November and 29 November Sibelco formulated a revised proposal for terms of a proposed enterprise agreement. Those terms were discussed at a meeting attended by Mr Robertson, the elected AWU site representative. Mr Wood was prevented from attending that meeting. At the meeting, among other things, Sibelco proposed a ballot of employees on their proposed terms and conditions of an enterprise agreement. Mr Wood discussed the meeting and Sibelco’s proposal for a ballot and decided not to issue the notice required for protected industrial action to occur at least until the completion of the ballot on Sibelco’s proposed enterprise agreement in mid December. The ballot was postponed until a time prior to the shutdown of the quarry for the Christmas period. The AWU determined that the employees would decide by the ballot whether or not to make an enterprise agreement on the terms proposed by Sibelco in accordance with section 182 of the Act, the text of which is set out below:

“182 When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Multi-enterprise agreement that is not a greenfields agreement

(2) If:

(a) a proposed enterprise agreement is a multi-enterprise agreement; and

(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

(c) those employees have voted on whether or not to approve the agreement; and

(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).”

[27] As previously observed FWA decided, as at 9 November 2012, that the AWU had been and was genuinely trying to reach agreement with Sibelco for a proposed enterprise agreement to cover the Lang Lang quarry employees, without opposition from Sibelco. It therefore seems to me that I would have to conclude that since that time the AWU no longer genuinely wishes to reach agreement on the terms of a proposed enterprise agreement. In other words, since that time the AWU has been and is acting disingenuously in relation to the making of a proposed enterprise agreement with Sibelco and, presumably, is making this application to extend the period in which protected action may commence so that protected industrial action may be taken for some other reason.

[28] I find it impossible to reconcile Sibelco’s submission with the evidence and material before me.

[29] I touched on relevant considerations of what will constitute “genuinely trying to reach agreement” in AWU v SKF Australia 3(SKF). The factual matrix in that case was different, however, some of the issues of statutory interpretation arising in that matter are relevant when considering the submission of Sibelco in this matter.

[30] Although not put as such I think the submissions of Sibelco indirectly involves concepts of good faith bargaining, as well as the intentions and conduct of the AWU as a bargaining agent. I should say, however, that Ms Cochrane did not expressly ask that the Commission find that the AWU was not bargaining in good faith. It is easy to conflate the two concepts and there may be factual circumstances where a relationship between them may be evident.

[31] Ms Cochrane was critical of what I understood to be a lack of bargaining activity between 29 November and the hearing of the application as evidence of a lack of genuineness or evidence of disingenuousness on the part of the AWU.

[32] At paragraphs 12 and 13 of SKF 4 I observed as follows:

“[12] In Total Marine Services Pty Ltd v Maritime Union of Australia¹ (Total Marine), the Full Bench of Fair Work Australia determined that while the conduct of an applicant for a protected action ballot order in relation to good faith bargaining is a relevant consideration for the purpose of s.443(1)(b) of the Act, it is not appropriate to equate the concepts of “good faith bargaining” and “genuinely trying to reach agreement”.

[13] The views of the Full Bench accord with the Fair Work Bill 2008 Explanatory Memorandum at paragraph 1664 which is set out below:

‘1664. Clause 413 contains the common requirements that an employee, employer or their bargaining representatives must meet in order for industrial action to be considered protected industrial action for a proposed enterprise agreement. These common requirements are additional to any other requirements that must be met under clauses 409, 410 or 411, and they are that:

• The industrial action cannot relate to a proposed greenfields agreement or multi-enterprise agreement (subclause 413(2)).



• Specified persons organising or engaging in industrial action must be genuinely trying to reach an agreement (subclause 413(3)). The question whether a person is genuinely trying to reach an agreement requires a subjective assessment of the actual intention of the person and the overall circumstances. It is not limited to an assessment of whether the person is complying with the good faith bargaining requirements.



• The notice requirements set out in clause 414 must be met (subclause 413(4)).



• Specified persons organising or engaging in industrial action must not have contravened any orders that apply to them relating to the industrial action, the proposed enterprise agreement or a matter that arose during bargaining for the proposed enterprise agreement (subclause 413(5)). Examples of orders are bargaining orders made by FWA in response to a failure to meet the good faith bargaining requirements.



• Industrial action must not contravene clause 417 (i.e., it must not be organised or engaged in before the nominal expiry date specified in an enterprise agreement).’

(emphasis added) “

[33] During the course of the hearing the following exchange took place between the bench and Ms Cochrane 5:

“MS COCHRANE: Correct. In any event, I guess the point about our presence here today is simply to reflect for the record that we do not consent to the extension. We feel that the behaviour of the union to date has been not only inactive for this 30 days but it’s also been acting against what we would consider to be the spirit of the Act, which requires the parties to come to the table, genuinely consider and respond to each other’s proposals. The union has, for some months now, refused to give anything other than flat rejections to our proposals and for that reason we do have a greater concern, a broader concern, about this bargaining and the utility of it whilst the union continues to take that approach.

THE COMMISSIONER: So are you saying that the union doesn’t want an agreement?

MS COCHRANE: I’m not suggesting that. I’m saying the union is not engaging in bargaining in the way that the Act contemplates that the parties will approach bargaining. So rather than having any discussions of any substance or providing any responses of any substance whatsoever the company’s proposals and continuing concessions are met with a flat, “No.” In circumstances where - - -

THE COMMISSIONER: Isn’t the authority though that the party is not required to make a concession?

MS COCHRANE: No, the parties are not required to make any concessions. You are correct. But the company keeps moving and in fact the final deal is - just for your own information - looks like what the union asked for with the addition of an option so the company.”

[34] While I do not place great weight on this in the overall consideration of Sibelco’s submission, it might be said that this amounts to a concession that the AWU’s constant purpose and intent is for an enterprise agreement to be made between Sibelco and the employees at Lang Lang quarry on terms of its own choosing. Obviously this is symmetrical with the intentions and bargaining behaviour of Sibelco.

[35] Regardless of Ms Cochrane’s submissions in this exchange, I consider that the evidence overwhelmingly supports such a conclusion. I see no evidence of an alternative purpose or intent on the part of the AWU other than the making of an agreement. Nor do I see any evidence of a wish to prevent an enterprise agreement being made. Rather, in my view, the AWU has decided not to take protected industrial action in the period of 30 days following the declaration of the protected industrial action ballot by the Australian Electoral Commission in order to await the ballot of the relevant employees, at Sibelco’s request in accordance with s.181 of the Act, to vote on the proposed enterprise agreement and the subsequent return to work after the Christmas close down.

[36] There is nothing before me of an evidentiary nature to suggest any breach of a good faith bargaining requirement between 29 November and the date of the hearing. Clearly the AWU was prepared to abide by the outcome of the ballot of the employees on the proposal for terms and conditions of an enterprise agreement made by Sibelco. How this could be construed as a lack of genuineness by the AWU as a bargaining agent or a breach of the good faith bargaining requirements is impossible to discern.

[37] Rather, the AWU’s conduct is convincing evidence of a genuine intention to try and reach agreement with Sibelco on terms for an enterprise agreement consistent with the good faith bargaining requirements of the Act.

[38] Having regard to the material before me, Sibelco has been unable to make out its submission that the AWU has not been genuinely trying to make an agreement or had a change of heart after 9 November 2012 so that it is disingenuous in relation to making an enterprise agreement to replace the Unimin Agreement.

[39] When deciding an application for an extension of the 30 day period in which protected industrial action may be commenced the Commission will have regard to the intent and purposes of the statutory provisions under which the application is made.

[40] In the case of the Transport Workers’ Union 6 (MGC) I was required to give extensive consideration to an application for an extension of the period prescribed by s. 459(1)(d)(i). For reasons discussed at length in that decision I determined that when considering the provisions of s. 459(3) in the applicable statutory context certain matters should be included as considerations relevant to the exercise of the discretion available to Fair Work Australia, as the Commission was then, when dealing with an application under those provisions.

[41] Those considerations were set out in paragraph 28 of that decision as follows:

“[28] In light of all of the above it is therefore relevant to consider the following when deciding whether or not to grant the application:

• Would the granting or refusal of the application contribute positively to clarity in the rules governing relevant industrial action?



• Would granting or refusal of the application streamline and simplify the process whereby the relevant employees can take protected industrial action for the proposed enterprise agreement?



• The democratic process which has been followed;



• Would simplification in the process for the authorisation of industrial action for the proposed enterprise agreement be served by granting or refusing the application?



• Would granting or refusing the application be fair to the employees, who are the persons whose wishes are the subject of the provision of s.436 and the conduct of the ballot?



• Would the exercise of the discretion to refuse the application be likely to have the effect of delaying or frustrating the taking of protected industrial action of employees of MGC for the purposes of the proposed enterprise agreement?”

[42] There are some analogous matters in this matter with the MGC matter. In particular is the fact that MGC had also put an offer of terms for a proposed enterprise agreement to its employees under s.181 which was rejected by vote.

[43] While there are also differences between the detailed factual circumstances applying in this matter and the MGC matter I think it is informative to extract from that decision the consideration of the matters identified above as relevant to a decision to grant an applicant. In my judgement the content of paragraphs 29 to 35 inclusive and paragraph 37 below, apply mutatis mutandis with equal force in this case.

“[29] It is difficult to see how, in the circumstances of this case, refusal of the application would lead to streamlining and simplifying the authorisation of protected industrial action by the employees of MGC for the proposed enterprise agreement. Rather, in my judgment, to refuse the application, on what is before me, would arguably cause greater complexity to arise in relation to such action. Any enterprise agreement made under the Fair Work Act to apply to the relevant employees can only be approved if a majority of those employees eligible to vote in a ballot to approve the agreement do so. The numerical dispersal of the employees throughout the various depots and their uneven views about the acceptability of the MGC’s terms for an enterprise agreement does not change this requirement.

[30] It is likewise difficult to see how refusing to grant the extension would lead to any needed clarification of the rules governing protected industrial action by employees of MGC for the proposed enterprise agreement. Rather, in my judgment, a lack of clarity in relation to such rules could well arise from refusal. Employees would no doubt need to understand the changed circumstances and could be uncertain about the situation in which protected industrial action could be taken in relation to the proposed enterprise agreement with MGC.

[31] I am unable to see how the refusal of the application could be said to provide simplification in the rules governing the statutory authorisation of protected industrial action by the relevant employees for the proposed enterprise agreement with MGC. On the contrary, in my judgment, refusal of the application would be more likely to give rise to confusion among the employees over whether, when and under what circumstances protected industrial action for the proposed enterprise agreement is authorised by the Act.

[32] It is further difficult to see what unfairness to the employees who were eligible to vote in the ballot would arise if the application were granted. The outcome of the ballot does not require the taking of any of the specified protected industrial action. If employees choose to take such action, and the action is duly notified in accordance with the Act, the consequence of the ballot and the extension sought is merely to provide the authorisation necessary for the legal immunity conferred by the Act to arise. Employees will make a choice to take authorised industrial action for themselves, with the statutory protection, if the application is granted.

...

[34] For the employees to be told that it would be necessary to start the process of authorisation again, having by majority rejected MGC’s offer of terms, would not be a simple situation. Rather, in my view, it would be both objectively and subjectively, in the latter case from the perspective of the employees, to say the least, complex and problematic.

[35] Likewise, in my judgment, refusal of the application would not be fair for the relevant employees. It is to be remembered that it is the wishes of the employees in relation to engaging in protected industrial action which s.436 establishes as the object of the procedural requirements for a protected industrial action ballot in order for the employees to gain the legal immunity available under the Act. To MGC’s credit they did not submit that the use of the word “fairness” in s.436 refers to fairness as between MGC and those eligible to vote in the protected action ballot. There is no evidence that the employees who voted in that ballot wish to lose the authorisation and statutory protection of industrial action for the proposed enterprise agreement, which they obtained by voting in that ballot. On the contrary, the outcome of the voting on MGC’s terms for such an agreement would, prima facie, indicate that the employees would be advantaged by the extension so that the option of authorised protected industrial action and the collateral immunity under the Act were available to them, if necessary, to bring the negotiations for the enterprise agreement to an expeditious conclusion.

...

[37] Finally, it seems to me that there is a likelihood that refusal of the application could delay or frustrate any wish to take protected industrial action for the proposed enterprise agreement by the relevant employees. Refusal would mean that a new application for another protected action ballot would be required and the application would have to be heard by the Tribunal. There would be an unspecified delay in the making and hearing of such an application.

...

[39] Additionally if a further application was made and a further ballot ordered, the AEC would be required to conduct another ballot, and a period of time for administration, voting and declaration of the ballot would be required. In my judgment, on what is before me, and given the intention to avoid delay and frustration expressed in the Explanatory Memorandum referred to above, I cannot see any merit in this outcome.”

[44] In my judgement there is no merit in the submissions made by Sibelco. On what is before me the AWU was, prior to the protected action ballot and thereafter until the hearing of their application in this matter, genuinely trying to reach agreement on the terms of a proposed enterprise agreement. Moreover, having considered the matters I have identified above as summarised in the decisions in SKF and MGC I conclude that the application has standing, the statutory requirements for the power to arise to make the order extending the relevant period are satisfied and the application has merit, having particular regard to the object and purpose of the relevant statutory provisions.

[45] For all of these reasons I decided to make an order extending the period in which protected industrial action by the relevant employees is authorised as a result of the Protected Action Ballot conducted pursuant to the Order [PR531239] in matter B2012/2012, as declared by the Australian Electoral Commission on 30 November 2012, by a further 30 days. An Order [PR533058] was issued accordingly.

COMMISSIONER

Appearances:

Mr C Winter for The Australian Workers’ Union.

Ms C Cochrane and Ms A Duggan for Australian Mines and Metals Association.

Hearing details:

2013

Melbourne

January 10

 1   2012 FWA 9601.

 2   Transcript PN91-PN92.

 3   2010 FWA 6557.

 4   Ibid. pp [12,13].

 5   Transcript, PN288-PN292.

 6   2011 FWA 1097.

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<Price code C, PR533056>