The Australian Workers' Union v Total Drains Cleaning Services Pty Ltd
[2024] FWC 1748
•2 JULY 2024
| [2024] FWC 1748 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
The Australian Workers’ Union
v
Total Drains Cleaning Services Pty Ltd
(B2024/834)
| COMMISSIONER CRAWFORD | SYDNEY, 2 JULY 2024 |
Proposed protected action ballot of employees of Total Drains Cleaning Services Pty Ltd – employer opposition - genuinely trying to reach agreement – order made.
Background
This is an application by The Australian Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order in relation to certain employees of Total Drains Cleaning Services Pty Ltd (TDG). The application was filed on 1 July 2024.
Later in the day on 1 July 2024, the Commission was advised that TDG opposes the application. TDG outlined the following reasons for opposing the application in an email from Karen Pink (Chief People Officer) to the Commission:
“I confirm that we object to the protected action ballot order application as follows;
1.We have been in good faith bargaining since our first meeting on 20 November 2023. Please note that meetings commenced on a regular basis from 5/3/2024 due to changes in TDG representation. I was appointed into my role from 9/2/24.
2.We responded to the complete AWU Log of Claims in writing on 15/4/24 and 24/5/24.
3.Our most recent meeting was conducted last Friday 28 June (rescheduled from 6 June due to AWU request). Additional meetings held 20/11/23, 5/3/24, 15/4/24, 9/5/24.
4.During the meeting held last Friday 28 June, the union provided a response to the TDG LOC response to Item 9 – Rates of Pay, Allowances & Classifications. We had aligned that there was further information required and would respond by end of (this) week. Refer to attached confirmation from AWU Organiser, Troy Rogers, regarding this.
We are therefore at a loss as to why the AWU are recommending strike action where we have not come to a disagreement/pause and intend to continue to bargain in good faith.”
Given TDG’s opposition, I listed the application for hearing at 3:00pm on 2 July 2024 via video.
Rebecca Hawach (Legal Officer), Jacob Ward (Industrial Officer) and Troy Rogers (Organiser) represented the AWU at the hearing on 2 July 2024. TDG was represented by Ms Pink, Jochen Behr (CEO) and Shawn Turner (General Manger NSW).
Material relied upon
AWU
In addition to its Form F34 application and an accompanying draft order, the AWU relied on a Form F34B declaration made by Mr Rogers on 1 July 2024. Mr Rogers’s declaration states:
a.TDG commenced bargaining in around September 2023.
b.The AWU provided TDG with a log of claims on 19 October 2023.
c.There have been eight bargaining meetings from 4 October 2023 to 28 June 2024.
d.There are a significant number of claims that remain in dispute between the AWU and TDG. These include core provisions such as wage increases, classification structure and allowances.
e.The AWU is not seeking to bargain about unlawful or non-permitted matters and has been genuinely trying to reach agreement with TDG.
I marked Mr Rogers’ declaration Exhibit A1. Mr Rogers was not cross-examined on his evidence.
Ms Hawach and Mr Ward also provided oral submissions during the hearing.
TDG
TDG relied on Ms Pink’s email to the Commission dated 1 July 2024. Ms Pink’s email had an email from Ms Pink to Mr Rogers on 24 May 2024 attached and an email from Mr Rogers to Ms Pink dated 28 June 2024. The attached emails concern bargaining claims. I marked these emails collectively Exhibit R1.
Ms Pink was not cross-examined on this evidence.
Ms Pink also provided oral submissions during the hearing.
Consideration
In Esso Australia Pty Ltd v AMWU, CEPU and AWU [2015] FWCFB 210 (Esso), the Full Bench stated the following regarding the interaction between the good faith bargaining requirements and the concept of genuinely trying to reach agreement:
“In any event, while there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.”[1]
The Full Bench in Esso provided the following summary of the key authorities in terms of assessing whether an applicant is genuinely trying to reach agreement (endnotes omitted):
“[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were ‘put to one side’; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified. In the course of its decision the Full Bench expressed the following views about s.443(1)(b),:
“[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. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).”
Ms Pink’s email dated 1 July 2024 raises concerns that the AWU is proceeding to recommend strike action as opposed to continuing bargaining. I do not consider that is an accurate description of the AWU’s position. The making of a protected action ballot order does not in any way mean bargaining for the proposed agreement will not continue. To the contrary, the AWU will be required to continue genuinely trying to reach agreement with TDG for any industrial action taken by its members to be protected under the FW Act.[2] The AWU and TDG will also be required to continue complying with the good faith bargaining requirements, regardless of whether a protected action ballot order is made.
Ms Pink referred during closing submissions to the application being “premature” because bargaining is still “making progress” and is not “deadlocked”. However, those are matters that would likely be relevant to an assessment of whether an intractable bargaining declaration should be made under s.235 of the FW Act. The legal issue I need to determine in this case is whether the AWU is genuinely trying to reach agreement with TDG. I was not provided with any evidence or submissions from TDG that could be relied upon to find that the AWU is not genuinely trying to reach agreement with TDG.
I am satisfied based on the uncontested evidence of Mr Rogers that the AWU has been, and is, genuinely trying to reach agreement with TDG. It is clear the AWU has articulated its claims and is attending bargaining meetings to discuss these claims, and those made by TDG. The parties appear significantly apart in terms of several important claims such as wage increases, classification structure and allowances. I am satisfied the AWU has made this application to further its genuine attempts to reach agreement with TDG.
I am satisfied that there is a notification time in relation to the proposed agreement and that all the other requirements in s.443(1) of the FW Act have been met. I note a protected action ballot order can only be made where bargaining has commenced via a notification time as a consequence of s.437(2A) of the FW Act being inserted following the Full Federal Court judgment in JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53.[3]
The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the FW Act[4] and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) and s.448A(2) of the FW Act, I have determined the date by which voting closes for the ballot will be 10 working days from the date of this Order which is 16 July 2024. This was the date proposed by the AWU.
An order has been separately issued in PR776645.
This matter will be assigned to a Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
COMMISSIONER
Appearances:
Ms Hawach, Mr Ward and Mr Rogers for the AWU.
Ms Pink, Mr Behr and Mr Turner on behalf of TDG.
Hearing Details:
2024.
Via video.
2 July.
[1] Esso at [18].
[2] Section 413(3) of the FW Act.
[3] The history is summarised by the Full Bench in Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894.
[4] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
Printed by authority of the Commonwealth Government Printer
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