Transport Workers' Union of Australia v Airport Fuel Services Pty Ltd
[2010] FWA 2850
•20 MAY 2010
Note: An appeal pursuant to s.604 (C2010/3734) was lodged against this decision - refer to Full Bench decision dated 17 June 2010 [[2010] FWAFB 4457] for result of appeal.
[2010] FWA 2850 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Transport Workers' Union of Australia
v
Airport Fuel Services Pty Ltd
(B2010/2973)
Private transport industry | |
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 20 MAY 2010 |
Proposed protected action ballot by employees of Airport Fuel Services Pty Ltd.
[1] On 14 May 2010, following a hearing, I issued an order for a protected action ballot of members of the Transport Workers Union of Australia (TWU) employed by Airport Fuel Services Pty Ltd (AFS, the employer) based at 258 Link Road Mascot. These are the reasons for the order.
[2] Section 443 relevantly provides:
(1) FWA 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) FWA 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) FWA 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] It is not contested that the TWU has made an application under s.437; however the employer submitted at the hearing that FWA could not be satisfied that the TWU has been, and is, genuinely trying to reach an agreement with AFS.
[4] The employer did so on two grounds. First it was put by the employer that the TWU was imposing inappropriate conditions on its preparedness to continue to negotiate, which meant that it could not be said that there was an attempt to reach an agreement at all 1. Secondly, the TWU had at all times and was continuing to press a claim for a non-permitted matter which as a consequence meant that FWA could not find that the TWU was genuinely trying to reach agreement2.
The evidence
[5] A written statement by Mr Bradley Clunes was tendered in evidence by the employer. Mr Clunes is employed as the National Operations Manager Aviation by Caltex Australia Pty Ltd (Caltex). He is responsible for managing all of Caltex’s aviation fuel operations throughout Australia. AFS is a joint venture, with Caltex appointed as the Operator. The Manager of AFS reports to Mr Clunes. Caltex also provides human resources services (as well as other services) to AFS. Mr Clunes has been representing AFS in relation to a new enterprise agreement to replace the Airport Fuel Services Agreement 2007 which expired in March 2010.
[6] According to Mr Clunes’s statement 3 Mr Glenn Nightingale (who was representing the TWU members employed by AFS) sent an email on 8 February 2010 which attached a copy of a draft agreement. The draft is the last version of a draft agreement that the TWU has provided to AFS. The draft agreement was attached to Mr Clunes’s statement4. Clause 5 of the draft agreement is entitled Labour hire and contract labour. It includes the following
‘5.1 The parties agree that when it becomes necessary to engage labour hire employees or to engage contractors the Company will:
…
5.1.2 ensure that any entity to which it outsources the work has a workplace agreement (as defined in [the FWA] and, if applicable, a registered Contract Agreement with the Union.
…
5.3 Where the company has a contract with any other entity to perform work of a type covered by this agreement then the company shall, upon each contract renewal, or within 6 months of the signing of this agreement (whichever is first in time), ensure that each such entity has a workplace agreement (as defined in the FWA] and, if applicable, a registered Contract Agreement with the Union.’
[7] According to Mr Clunes, on 2 March 2010 he received an email from Mr Nightingale. That email included the following 5
‘b) More seriously it is NOTED that not one AFS “new” employee has been employed filling the positions available over the last 6 years or so. Rather AFS has contracted out their workforce over many years to another company called Adecco, whilst expecting company employees to train and expand other enterprises.
The Transport Workers Union and your employees requests immediately that the current roster reflect AFS full time or part time employees. In other words Full Time Equivalents (FTE) plus roster relief workers etc be produced by Thursday 4 March 2010 meeting at JUHI Sydney premises. To assist you with our request we say, “if your roster AFS provides for 34 Full time lines and 4 relief lines to perform all refuelling duties then identify and provide document copies to all the TWU committee participants.” Employees have had enough that you have grown Adecco’s business and not AFS’s and may be jeopardising their job security, safety and airline security of all the travelling public and Flight companies that you operation has involvement.. [sic]
Once we have the FTE’s secured we expect these positions be filled immediately by fully trained and experienced refuellers by AFS in consultation with the TWU committee.
Looking forward to meet on Thursday 4 March 10’
[8] According to Mr Clunes 6, Mr Nightingale opened the meeting on 4 March 2010 (which had been convened to negotiate the agreement) with words to the following effect:
‘The members are disappointed that employees were disappointed that AFS had not employed any new full time workers in the past 13 years. You’re growing a labour hire business for Adecco, and not putting people on full time at AFS. Everyone should be on the same pay rates as each other. All staff should be on the same conditions. We’re not prepared to move forward until AFS provides the employees with guarantees that labour hire contractors would be put on as full time or part time AFS workers, and provide details of future manning levels.’
[9] Mr Clunes’s statement indicates that in response he told Mr Nightingale that this was illegal action. According to his statement it was his understanding that Mr Nightingale was saying that the TWU was not prepared to continue negotiations on the agreement until AFS offered full time employment to the Adecco contractors working on site 7.
[10] According to Mr Clunes, at a further negotiation meeting on 12 March 2010, Mr Nightingale said words to the following effect:
‘We’re close on the document. On labour hire, we need to see something regarding the contractors being paid at the appropriate rate. We want everyone on the same arrangements at AFS.’ 8
[11] According to Mr Clunes, Mr Nightingale said at a meeting on 18 March 2010 words to the following effect:
‘On labour hire, we want everyone on the same arrangements and rates of pay. The preferred arrangement is to be in the EA.’ 9
[12] Mr Nightingale gave oral evidence. In his examination-in-chief he indicated that the labour hire clause in the agreement was included following a number of courses he had attended with Maurice Blackburn where he was advised that labour hire clauses were permitted since the repeal of Work Choices. The specific labour hire clause included in the draft agreement had been drafted with the assistance of the union’s legal department 10.
[13] During cross examination Mr Nightingale emphatically denied that he had told Mr Clunes that further negotiations in relation to the enterprise agreement were dependent on the employer meeting the TWU’s requests in relation to the filling of positions by AFS employees. He said that there had been an ongoing campaign to get more positions filled by AFS on a full-time basis. This was a different campaign from the enterprise agreement. He specifically denied using the words attributed to him by Mr Clunes on 4 March 2010 11.
Consideration
[14] After considering the relevant jurisprudence and the terms of the Fair Work Act 2009 (the Act) the Full Bench in Australian Postal Corporation v CEPU 12 came to the following conclusion:
‘Employee claim action may be engaged in for the purpose of advancing claims that are reasonably believed to be only about permitted matters. It seems to us to follow that if a bargaining agent that reasonably believed that the claims it was advancing at the time it sought a protected action ballot order were only about permitted matters, it could not, for that reason alone, be said that the bargaining agent was not genuinely trying to reach an agreement.’
[15] It follows that the first issue I need to determine in deciding whether the TWU was genuinely trying to reach an agreement, as required by s.443(1)(b), is not whether the impugned provisions contained in the proposed labour hire clause are about permitted matters – but whether the TWU reasonably believed them to be about permitted matters. Mr Nightingale’s evidence is that the clauses were drafted in conjunction with the TWU’s legal department and following general advice from Maurice Blackburn. There is no doubt that Mr Nightingale believed the provisions were about permitted matters. But that is not enough. Was this belief ‘reasonable’?
[16] Items 1642 and 1643 of the explanatory memorandum to the Fair Work Bill 2009 note:
‘What constitutes a 'reasonable belief' depends on the circumstances of the case and the person concerned. For example, a tribunal would expect an official of an employee organisation with extensive experience in enterprise bargaining to have a greater appreciation of the limits of the permitted matters than a novice employee bargaining representative who has been appointed by his or her colleagues to represent them in bargaining with the employer.
Another factor that is relevant to the question of reasonable belief is whether the employer attempted to advise its employees or its bargaining representatives that they were pursuing claims about non-permitted matters. If the employer did so and the industrial action proceeded nonetheless, then it is much more likely that it would not be found to be protected.’
[17] In this case we are dealing with an experienced industrial practitioner, Mr Nightingale, and a situation where the employer put the TWU on notice that it considered the proposed clause ‘illegal’. These tend to ‘raise the bar’ as to what might constitute ‘reasonable belief’.
[18] In the context of this matter, whether the proposed clause is about ‘permitted matters’ can be equated to whether it is about matters pertaining to the relationship between AFS and those employees of AFS who would be covered by the proposed agreement. The explanatory memorandum says at item 671:
‘Frequently, it will be obvious that a term pertains to the employment relationship - e.g., a term about the payment of wages or a term about hours of work and shift patterns. However, there are some terms where it is not so immediately clear whether the terms are about matters pertaining to the employment relationship.’
[19] The explanatory memorandum then goes on to list specific examples of terms that would fall within the scope of permitted matters. These include (at item 672)
‘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.’
[20] At item 673 the explanatory memorandum lists terms that would not be intended to be within the scope of permitted matters. These include ‘terms that would contain a general prohibition on the employer engaging labour hire employees or contractors.’
[21] The proposed labour hire clause does not contain a general prohibition on the engagement of labour hire employees or contractors. Indeed it specifically envisages that the employer might find it necessary to engage labour hire employees or contractors. Rather it provides that labour hire employees or contractors would need to be engaged under the terms of agreements negotiated with the TWU. It is at the very least arguable that such a provision is precisely the type of provision envisaged by the explanatory memorandum at item 672 as being a permitted matter. Without preventing the use of labour hire employees or contractors. the clause seeks to impose conditions which prima facie are arguably designed to prevent the undercutting of the proposed enterprise agreement, in order to protect the job security of the employees covered by the agreement. Given this, I consider that the TWU has a ‘reasonable belief’ that the proposed clause is about permitted matters. Accordingly I do not consider that the inclusion of the proposed clause in the TWU’s draft agreement means that the TWU is not genuinely trying to reach an agreement.
[22] Nor do I accept the employer’s argument that the TWU was seeking to impose inappropriate conditions on its willingness to continue negotiations. Clearly, Mr Nightingale has been pressing for more employees to be engaged directly by AFS. However I accept his evidence that he did not make these demands a condition of continuing the negotiations to finalise an agreement.
Conclusion
[23] I am satisfied that the TWU has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The jurisdictional prerequisites set out at s.443 are met. An order for a protected action ballot has accordingly been issued.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr O Fagir, for the TWU
Mr D Perry for AFS
Hearing details:
SYDNEY
2010
13 May
1 PN30
2 PN31
3 Exhibit AFS1, paragraph 14
4 Attachment BC-1 to Exhibit AFS1
5 Attachment BC-2 to Exhibit AFS1
6 Exhibit AFS 1, paragraph 24
7 ibid, paragraph 25
8 Ibid paragraph 26
9 Ibid paragraph 27
10 PN86-93
11 PN195-PN228
12 Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Communications Division [2010] FWAFB 344at para 56
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