Transport Workers' Union of Australia v Australian Postal Corporation T/A Australia Post

[2017] FWC 2976

[2017] FWC 2976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Australian Postal Corporation T/A Australia Post
(B2017/425)

DEPUTY PRESIDENT COLMAN MELBOURNE, 1 JUNE 2017

Proposed protected action ballot of employees of Australian Postal Corporation

[1] On 30 May 2017, I made a protected action ballot order in respect of an application by the Transport Workers’ Union of Australia (TWU). I indicated that I would publish my reasons for the decision to make the order in due course. These are my reasons for decision.  

[2] The employment of various employees of Australian Postal Corporation (Australia Post) is covered by the Australia Post Enterprise Agreement 2013 (Agreement), the nominal expiry date of which was 31 December 2016. The TWU is bound by the Agreement, as are a number of other unions.

[3] In early November 2016, Australia Post, the TWU and other unions commenced bargaining for a proposed new enterprise agreement. The TWU is a bargaining representative for the proposed agreement.

[4] On Thursday 25 May 2017, the TWU made an application for a protected action ballot order (PABO) pursuant to s437 of the Fair Work Act 2009 (Act). On the same day, Australia Post advised the Commission that it opposed the making of a PABO. Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a PABO within 2 working days after the application is made. Accordingly, the application was listed for hearing before me on the afternoon of Monday 29 May 2017. After lunch on that day, the TWU filed and served an affidavit of Mr Adam Carter, Assistant Secretary of the Queensland Branch of the TWU, who has led the TWU’s negotiations on behalf of his union in relation to the proposed new agreement. At the hearing that afternoon, Australia Post requested, and the Commission granted, an adjournment of the matter to the next day, so as to allow Australia Post’s counsel time to consider the affidavit, and to prepare outlines of submission and evidence.

[5] On Tuesday 30 May 2017, Australia Post filed and served outlines of submission and evidence. The TWU also filed and served an outline of submissions. At the commencement of proceedings however, Australia Post advised that its objection to the TWU’s application for a PABO was withdrawn.

[6] The submissions and evidence filed in this matter addressed the question of whether the TWU had been, and was, genuinely trying to reach agreement with the employer of the employees who were to be balloted. Despite the employer’s withdrawal of its objection to the union’s application, the Commission is required to satisfy itself of the jurisdictional foundation to make an order.

[7] Section 437 enables a bargaining representative to apply for a PABO. Save for the restrictions in s437(2A) and s438 (which are not presently relevant), the Commission must make a PABO in relation to employees who will be covered by a proposed agreement in the circumstances set out in s443. Section 443 provides:

Genuinely trying to reach an agreement

“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).”

[8] Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided by reference to all of the circumstances of the bargaining in question. 1 It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.2

[9] In the present matter it was not contested that, since bargaining began, there had been a number of meetings between Australia Post and the TWU, and that each had set out claims that they made in respect of a proposed enterprise agreement. It is apparent from the affidavit of Mr Carter that meetings dealing with a proposed new enterprise agreement occurred on 20 December 2016, 15 and 16 February 2017, 8 and 23 March 2017 and 11 and 23 May 2017. On 12 May 2017, the TWU agreed to withdraw an earlier application for a PABO in order to accommodate further discussions between the parties. On 25 May 2017, Australia Post wrote to the TWU, enclosing details of its final offer, noting that there had been several months of ‘constructive negotiations’.

[10] In my opinion, these circumstances are compatible with a finding that the TWU has been, and is, genuinely trying to reach agreement with the employer. However, several issues of potential concern arose from the materials filed in this matter.

[11] From the affidavit of Mr Carter, it appears that Australia Post had during bargaining expressed the view that several items in the TWU log of claims were not ‘permitted matters’ for the purposes of s172 of the Act. In particular, Australia Post queried the status of item 19 of the log, which relates to sham contracting; 3 and item 30, which concerns a prohibition on payment of bonuses to employees for achieving targets for Lost Time Injuries.4

[12] As noted by the Full Bench in Esso, the fact that an applicant is, or has been, pursuing a claim about a non-permitted matter is relevant to the Commission’s analysis of the test in s443, however it is not determinative of it. A range of factual considerations may be relevant. 5 Among these considerations is the question of whether the applicant believed the claims in question to be about a permitted matter, and whether there is legal clarity about the status of those claims.6

[13] Such an approach to the relevance of non-permitted claims for the purposes of s443 is consistent with the statutory scheme. In particular, it is concordant with s409, which defines ‘employee claim action’ as industrial action organised or engaged in for the purpose of supporting or advancing claims that are ‘only about, or are reasonably believed to only be about, permitted matters.’ If ‘reasonable belief’ about the permitted status of claims suffices for the purpose of s409, it seems unlikely that Parliament would have intended any higher standard - let alone ‘strict liability’ - to apply in the setting of s443.

[14] In the present case, Mr Carter has filed a sworn affidavit that to the best of his knowledge and belief, the claims made by the TWU on behalf of its members are limited to matters that are permitted matters within the meaning of s172 of the Act. 7 He attests that he obtained legal advice as to whether certain of the TWU’s claims were permitted matters.8

[15] It appears to me that Mr Carter’s belief that the TWU claims are limited to permitted matters is reasonable. As to the claim advanced by the TWU in item 19 of its log, it is relevant to note that a Full Bench of the Commission has previously found a sham sub-contracting provision to be a permitted matter. 9 In the case of the provision proposed by item 19 of the TWU log, the sham contracting elements are framed with reference to concerns about the potential for employee entitlements and job security to be eroded.

[16] In relation to item 30 of the TWU log, the proposed clause addresses remuneration-related incentives for employees that (it is said) might discourage employees from exercising their right to claim workers compensation. Such a clause appears to me to pertain to the health and safety of Australia Post employees.

[17] In the circumstances, I considered that the TWU’s pursuit of the claims in items 19 and 30 of its log posed no impediment to a finding that the TWU had been, and was, genuinely trying to reach agreement.

[18] Finally, in its outline of submission, Australia Post put forward a brief contention that it was limited by the Australian Government Public Sector Workplace Bargaining Policy 2015 to a wage increase of 2%, and that the TWU’s persistence with a claim in excess of this amount indicated that the union was not genuinely attempting to reach agreement.

[19] However, as Australia Post withdrew its objection to the TWU’s application for a PABO, the contention referred to above was not developed. In the absence of any elaboration on this contention, I did not consider that it called into question the genuineness of the TWU’s efforts to reach agreement.

Conclusion

[20] I was satisfied, at the time of issuing the order, that the TWU, as a bargaining representative for the proposed agreement and applicant for a PABO, had been and was genuinely trying to reach agreement with the employer. I was also satisfied that the restrictions on the making of an application in sections 437(2A) and 438(1) were not applicable in the present case. I was satisfied that the other statutory criteria had been met.

DEPUTY PRESIDENT

Appearances:

Mr S Reidy for the Transport Workers’ Union of Australia

Mr P Wheelahan for Australian Postal Corporation

 1   Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2015) 257 IR 5 at 69; [2015] FWCFB 210 at 57

 2   Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368]; Application by NUW [2016] FWC 6262 at 25

 3   Paragraph 17 of the affidavit of Mr Carter

 4   Paragraph 31 of the affidavit of Mr Carter

 5   See paragraph 59 of the decision

 6   Ibid

 7   Paragraph 48 of the affidavit of Mr Carter

 8   Paragraph 47 of the affidavit of Mr Carter

 9   see Asurco Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union[2010] FWAFB 6180 at 10-12

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