Transport Workers' Union of Australia v Brownes Foods Operations Pty Ltd
[2023] FWC 2948
•13 NOVEMBER 2023
[2023] FWC 2948
The attached document replaces the document previously issued with the above code on 13 November 2023.
1. A Print ID has been added on page 7.
Associate to Commissioner Lim
Dated 14 November 2023
| [2023] FWC 2948 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Transport Workers' Union of Australia
v
Brownes Foods Operations Pty Ltd
(B2023/1234)
| COMMISSIONER LIM | PERTH, 13 NOVEMBER 2023 |
Proposed protected action ballot of employees of Brownes Foods Operations Pty Ltd.
Introduction
On 9 November 2023, the Transport Workers’ Union of Australia (TWU or Applicant) applied for a protected action ballot order pursuant to s 437 of the Fair Work Act 2009 (Act). The proposed ballot is in relation to certain employees of Brownes Foods Operations Pty Ltd (Brownes or Employer).
On 10 November 2023, Brownes advised the Commission that they objected to the application.
The matter was allocated to my Chambers on 10 November 2023. I issued directions to the parties for the filing of any additional material. A hearing was conducted on 13 November 2023. Mr Adam Dzieciol, Industrial Officer, represented the TWU. Mr Chris Johnson, People and Culture Business Partner, represented Brownes.
Having considered the evidence from the parties, I am satisfied that the TWU have been, and are, genuinely trying to reach agreement. An order to this effect will be issued.
My reasons for my decision are as follows.
Legislative framework
Section 443 of the Act relevantly provides as follows:
“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)
.... ....”
The words ‘genuinely trying’ are to be given their ordinary and natural meaning.[1]
It has been the Commission’s approach when determining whether an applicant is genuinely trying to reach agreement to assess all the circumstances of the particular case.[2]
The Full Bench of the Fair Work Commission in Total Marine noted that an assessment of the relevant circumstances will frequently involve considering the extent of the progress in negotiations and the steps taken to try and reach an agreement.
Further, the expression ‘genuinely trying’ has also been taken to be concerned with the genuineness or authenticity of the applicant’s efforts to reach the stated goal: an enterprise agreement that meets the requirements of the Act.[3]
Evidence
The TWU must demonstrate that it has met (and where relevant, continues to meet) these requirements.
In support of its contention that it has met s 443(1)(b), the TWU relied upon the evidence of Mr Robert Taylor, TWU Branch Organiser. Mr Taylor provided two written statements and oral evidence at hearing.
Mr Taylor’s evidence was that:
The current enterprise agreement is the Brownes Food Operations Pty Ltd Operations Agreement 2020-2023 (Current Agreement).
The nominal expiry date of the Current Agreement is 31 May 2023.
The Employer issued a notice of employee representational rights for a replacement agreement on 8 May 2023.
There was a delay in the commencement of bargaining on the TWU’s behalf due to a different TWU organiser who had carriage of members at Brownes at the time.
The Brownes negotiations were subsequently allocated to Mr Taylor.
At the first bargaining meeting on 23 August 2023, Mr Taylor gave Brownes a log of claims for the proposed agreement. He also sent a copy via email after the meeting. The log of claims was developed in consultation with TWU members at Brownes.
The log of claims included items such as an increase in superannuation contributions; increase to family and domestic violence leave; the establishment of a women’s advocate; changes to the consultation clause; job security; casual conversion and financial claims.
The wage claim in the log of claims was for 8.3% for 2023 (backpaid to 30 June 2023); 4% or CPI for 2024; and 4% or CPI for 2025.
There have been five bargaining meetings on 23 August 2023, 30 August 2023, 19 September 2023, 5 October 2023 and 8 November 2023. Mr Taylor and TWU delegates have attended those meetings.
At the bargaining meeting on 20 August 2023, Brownes put forward a wage offer of 3.5% from 1 June 2023; 3.5% from 1 January 2024; and 3.5% from 1 January 2025. The TWU and its membership rejected this offer.
At the next bargaining meeting on 19 September 2023, Brownes put forward a revised wage offer of 3.5% from 1 June 2023; 3.5% from 1 January 2024; and 3.5% from 1 January 2025 with a memorandum of understanding. The TWU and its membership also rejected this offer.
The parties have discussed the following matters during the bargaining meetings:
oTerm of the agreement: agreed to be two and a half years.
oExisting early retirement provision: Brownes seeks to amend, no agreement reached.
oAnnual leave provisions: Brownes seeks to amend, no agreement reached.
oRostered days off: Brownes initially sought to remove, but this claim was withdrawn.
oCasual conversion: TWU claim item, no agreement reached.
oSuperannuation contributions: TWU claim item, no agreement reached.
oWomen’s advocate: TWU claim item, but this claim was withdrawn.
oJob security clause: TWU claim item, mostly not agreed.
After each bargaining meeting, Mr Taylor held a report back meeting with TWU members at Brownes. This was to update them on the bargaining progress and to seek their feedback on whether to continue pushing with outstanding claims.
On 31 October 2023, Mr Taylor sent an amended log of claims to Brownes.
TWU Brownes members instructed the TWU to file for a protected action ballot order after four bargaining meetings.
Progress has been made on several of the company’s log of claims. The parties have agreed on four of the TWU’s bargaining claims. The TWU have also withdrawn several of their original claims.
Brownes did not call any witnesses.
Brownes submits that the TWU have not been bargaining in good faith for the following reasons:
Mr Taylor’s first witness statement incorrectly identified the date the notice of employee representational rights was issued.
Mr Taylor’s first witness statement did not include the most recent bargaining meeting on 8 November 2023.
The TWU’s wage claim has changed over the course of the negotiations. The wage claims that the TWU have advanced are:
(a)On 23 August 2023, 8.3% for 2023; 4% for 2024; 4% for 2025.
(b)On 20 September 2023, 6.1% for 2023; 4% for 2024; 4% for 2025.
(c)On 5 October 2023 (as a collective proposal between the TWU and CEPU):
(i)For employees who will not receive an additional week of annual leave – 8.5% for 1 June 2023-31 December 2024 (18-month period); 1.5% for 2025.
(ii)For employees who will receive an additional week of annual leave as a part of a different claim – 7% for 1 June 2023-31 December 2024 (18-month period); 1.5% for 2025.
(d)On 7 November 2023 (as a part of the TWU’s amended log of claims), 7% for 2023, 4% for 2024, 4% for 2025.
The TWU has distributed leaflets to Brownes employees with comments such as, “Brownes ignored your claims and have put forward a proposal that would send you backwards”. Brownes submits that these materials were misleading and the TWU distributed the flyers to cause disruption.
The TWU’s intention from the start of the bargaining process has been to apply for a protected action ballot order.
Brownes further submits that most of the bargaining claims have been resolved.
I do not consider that the incorrect notification date in Mr Taylor’s statutory declaration is significant. I find the same for the omission of the bargaining meeting on 8 November, noting that the application was lodged one day after the meeting. Regardless, Mr Taylor’s second witness statement acknowledges that these were errors in his first witness statement.
In his second witness statement, Mr Taylor responded to Brownes’ submission regarding the wage claim put forward on 5 October 2023 (as outlined in paragraph [14] above). Mr Taylor’s evidence is that the wage proposal was the initiative of the CEPU. At that meeting, Mr Taylor said that the TWU would put the proposal to its members, which he did. TWU members rejected the 5 October 2023 wage proposal.
During cross-examination, Mr Johnson put to Mr Taylor that the wage proposal was put forward by the TWU and CEPU jointly, and that this was supported by the TWU’s September 2023 bargaining pamphlet to members. Mr Taylor’s evidence was that during the 5 October 2023 meeting, he said that he needed to seek feedback from TWU members. Further, that the September 2023 bargaining pamphlet contained the wage proposal to educate members.
I accept Mr Taylor’s evidence. Though the bargaining pamphlet is titled September 2023, the introduction says, “Your TWU membership lead negotiating team met with Brownes management on the 5th of October to hear respond [sic] to our claims for a 2nd time.” The pamphlet then outlines the 5 October 2023 wage proposal. This is consistent with Mr Taylor’s evidence.
With regards to the changing wage claim from 20 September 2023 to the amended log of claims, Mr Taylor’s evidence is that the revised wage claim on 20 September 2023 was put forward by the TWU bargaining committee. At the next members report back meeting, the TWU members made it clear that they did not want to come down from 7% in the first year of the agreement. Accordingly, the TWU communicated in the amended log of claims that the wage increases sought were 7% for 2023, 4% for 2024 and 4% for 2025. Mr Taylor acknowledges that the wage claim changed, but that was due to an error on the TWU bargaining committee’s behalf. Mr Taylor corrected that error within a short period of time.
I accept Mr Taylor’s evidence regarding why the wage claim changed between 20 September and the amended log of claims. I do not find the TWU’s changing wage claim remarkable. It is normal for claims to evolve over the course of negotiations as the parties settle some claims and flesh out issues of contention. It is clear that the TWU have been evolving their wage claim in light of other matters being resolved or raised, and in response to feedback from their members.
Brownes provided four TWU member pamphlets as a part of their written submissions. Having read them, I similarly do not find anything remarkable about them. During the hearing, Brownes made the submission that the pamphlets were misleading. However, they did not lead any probative witness evidence to support this assertion.
During cross-examination Mr Johnson put to Mr Taylor that the bargaining pamphlets had been distributed before bargaining meetings, rather than after. Mr Taylor rejected this. Brownes then sought to admit an email from the bar table from an unnamed witness that had seen the pamphlets distributed before a bargaining meeting. I did not accept this email, as it would have been procedurally unfair to receive evidence in such a way. However, even if I had accepted the evidence and accepted Brownes’ submission that Mr Taylor was dishonest about when the pamphlets were distributed, I do not find that that would have outweighed the rest of Mr Taylor’s evidence regarding the TWU’s actions during bargaining.
In their written submission, Brownes argued that according to ‘unnamed sources involved in the bargaining process’, the TWU’s intention has been to file for a protected action ballot order from the start of negotiations. Brownes did not expand on this argument in the hearing. Mr Taylor’s evidence is that his objective and the TWU’s objective is to achieve an enterprise agreement for TWU members. I accept this evidence.
In this case, the evidence before me supports the conclusion that the TWU has been and is genuinely trying to reach an agreement with Brownes. The parties have had five bargaining meetings. Several of the claims have been settled. The TWU has withdrawn several claims and have communicated this to Brownes. I do not consider the TWU updating their wage claim through these negotiations to be contrary to genuinely trying to reach agreement.
Accordingly, I find that the TWU has met the requirements of s 443(1)(b) of the Act.
On the basis of the material before me, I am also satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s 443 of the Act have been met, including those not in contest and not expressly dealt with in this decision.
On that basis, and given that s 443(2) does not apply, I am obliged to issue the Order.
The ballot is to be conducted by the Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.[4]
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 27 November 2023, being ten (10) working days from the date of the Order. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR768159.
Pursuant to s 448A of the Act, I will convene a compulsory conciliation conference. An Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement will issue shortly.
COMMISSIONER
[1] Ford Motor Company of Australia v CEPU [2009] FWAFB 1240 at [125] (Kaufman SDP, Ives DP and Lewis C) (Ford Motor).
[2] JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 (Jessup, Tracey and Flick JJ) (JJ Richards); Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 at [31] (Watson VP, Hamberger SDP and Roberts C) (Total Marine); CEPU v Kraft Foods Ltd[2010] FWA 4404 at [29] (Hampton C); Esso Australia Pty Ltd v AMWU, CEPU and AWU[2015] FWCFB 210 (Esso).
[3] J.J. Richards at [89]
[4] Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting[2023] FWC 1531.
Printed by authority of the Commonwealth Government Printer
Appearances:
Mr Dzieciol for the TWU
Mr Johnson for the Respondent
Hearing details:
13 November 2023
Perth
<PR768160>
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