Transport Workers' Union of Australia v Hanson Construction Materials Pty Ltd T/A Hanson
[2023] FWC 3058
•22 NOVEMBER 2023
| [2023] FWC 3058 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Transport Workers' Union of Australia
v
Hanson Construction Materials Pty Ltd T/A Hanson
(B2023/1276)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 22 NOVEMBER 2023 |
Proposed protected action ballot of employees of Hanson Construction Materials Pty Ltd Trading As Hanson
Hanson Construction Materials Pty Ltd (Hanson) has been negotiating for an enterprise agreement to replace the Hanson Construction Materials Pty Ltd Metropolitan Quarry Agreement 2020 (Hanson Agreement),[1] since in or around June 2023. It is not in dispute that the nominal expiry date of the Hanson Agreement has passed.
An application has been brought by the Transport Workers’ Union of Australia (the TWU) under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order (PABO) in relation to certain employees of Hanson.
The application was lodged with the Commission on 20 November 2023 and was initially allocated to Deputy President Hampton. The Commission’s Bargaining Team sought a response from Hanson which was forthcoming on that same day. In its initial response (and only response), Mr Paul Gonzales, Supply Chain Manager – Aggregates, confirmed that Hanson objected to the application on the bases that:
a) negotiations (between the parties) have not stalled, and there was movement in the bargaining process before the last meeting held on 7 November 2023; and
b) the meeting on 7 November 2023 did not adhere to the principles of good faith bargaining as required by the Act.
Section 441 of the Act states that the Commission must, as far as practicable, determine an application under s 437 within two working days after the application is made. The application was allocated to my Chambers on 21 November 2023. I listed the application for hearing on 22 November 2023.
In accordance with the directions issued on 21 November 2023, the TWU filed further materials in response to Hanson’s objections filed on 20 November 2023. However, Hanson, whilst filing those initial objections in its email to the Commission’s Bargaining Team, did not lodge any further materials in support of its objections. When contacted by Chambers, Hanson confirmed its intention to rely upon its response to the Commission’s Bargaining Team dated 20 November 2023.
At hearing, it was broached with the parties that notwithstanding the directions issued on 21 November 2023, the only material before the Commission from Hanson was Mr Gonzales’ email dated 20 November 2023. It was explained to the parties that given the directions issued and Hanson’s confirmation that it simply wished to rely on Mr Gonzales’ email, the Commission would not give leave to Hanson to give viva voce evidence. However, the parties were informed that Hanson may seek to tender Mr Gonzales’ email into evidence and the TWU took no objection to that course.
Shortly stated, it is uncontroversial that the TWU is a bargaining representative of at least some of the employees who will be covered by the proposed agreement. Those employees are all members of the TWU employed by Hanson whose employment will be covered by the terms of the proposed agreement.
For the following reasons, I have concluded that the TWU has been, and is, genuinely trying to reach agreement with Hanson, and I am further satisfied that the requirements in ss 437, 440 and 443(1) of the Act have been met.
The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting (Vero). Vero has been approved as an eligible protected action ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot.
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 nine working days from the date of the Order.[3] This also establishes the ballot period for the purpose of s 448A(2) of the Act.
An Order has been separately issued in PR768507.
This matter will shortly be listed for a s 448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
Background
Mr Christopher Nelson, an Organiser with the TWU who was responsible for the TWU members employed by Hanson and was a bargaining representative in the negotiations for a proposed agreement, gave evidence on behalf of the TWU.[4]
Mr Nelson said that at the start of the negotiations, in or around August 2023, the TWU submitted a log of claims to Mr Gonzales which, amongst other things, sought wage increases of 9%, 7% and 7% for each year of a three year agreement.[5]
There were ten enterprise bargaining meetings with representatives of Hanson regarding the proposed agreement. Those meetings took place on 3 August 2023, 10 August 2023, 16 August 2023, 30 August 2023, 6 September 2023, 19 September 2023, 10 October 2023, 24 October 2023, 1 November 2023, and 7 November 2023.[6] Mr Nelson said that he attended all the meetings.[7]
According to Mr Nelson, during the enterprise bargaining negotiations Hanson had increased its wage offer to 6%, 3.5%, 3.5% for each year over three years, and the TWU had reduced its log of claims to the following:
a) wage increases of 5.5%, 3.5% and 3.4%;
b) paid lunch break;
c) $750.00 one off cost of living payment;
d) quarterly TWU site meetings; and
e) dispute resolution clause to provide status quo provision.[8]
Mr Nelson said that the abovementioned claims were in addition to items that had already been agreed to, as reflected in Hanson’s offer presented on 3 November 2023.[9]
Mr Nelson noted that at the bargaining meeting held on 3 November 2023, he advised Hanson of the employees’ position that they sought those claims as identified in paragraph [16] of this decision. Mr Nelson added that the TWU, on behalf of its members, sought the inclusion of one day paid leave for delegates to scrutinise and finalise the enterprise agreement and the already agreed claims of hard rock allowance, dogman to receive a crane allowance and allowances to increase each year in line with percentage increases.[10]
Mr Nelson’s evidence was that at the meeting on 3 November 2023, Mr Gonzales made it clear that Hanson will not agree to a paid lunch break, dispute clause providing for status quo, or TWU quarterly meetings.[11]
Mr Nelson said that a bargaining meeting was held on 7 November 2023, which he attended.[12] Also present at that meeting was the Tony Coniglio, TWU Delegate for the Redhill site, David Salmon, TWU Delegate for the Byford site, Charles Brent, of Hanson, and Mr Gonzales.[13]
At the meeting on 7 November 2023, Mr Nelson said that he outlined to Mr Gonzales and Mr Brent that paid lunch breaks, a $750 one off cost of living payment, a dispute resolution clause that provided for status quo and quarterly paid TWU site meetings were important to the TWU members, particularly that the TWU members recognise that the quarterly paid meetings allow for open communication between the TWU and its members.[14]
According to Mr Nelson, Mr Gonzales made it clear at the meeting that Hanson was not accepting of paid lunch breaks, a $750 one off cost of living payment, a dispute resolution clause that provided for status quo and quarterly paid TWU site meetings.[15] Mr Nelson said that he observed and heard Mr Coniglio ask Mr Gonzales to confirm that Hanson would not be accepting the remaining claims. In reply, said Mr Nelson, Mr Gonzales confirmed that Hanson would not be moving from those points.[16] Mr Nelson said that at that point the negotiations had reached an impasse.[17]
Mr Nelson gave evidence that at the conclusion of the bargaining meeting with Hanson on 7 November 2023, he said to Mr Gonzales that even though the TWU had indicated that it would ‘lodge for industrial action’, communication lines were open and that he was free to get in contact.[18] Mr Gonzales gave evidence at hearing that he could not recall Mr Nelson communicating that ‘communication lines were open’.
Mr Nelson’s evidence was that Mr Gonzales had not attempted to contact him since the meeting on 7 November 2023, and Mr Gonzales confirmed at hearing that was the case.
When asked whether the TWU had withdrawn 27 claims from its log of claims, Mr Gonzales agreed that was the case. Mr Gonzales confirmed, at hearing, that there had been significant movement by both the TWU and Hanson regarding the negotiations up until 7 November 2023.
Mr Nelson said that the TWU members and Hanson are a considerable way apart in the negotiations, and as there does not appear to be any prospect of an agreement being reached soon, the members had advised that they wanted the TWU to make an application for a protected action ballot order.[19]
Statutory framework
Section 437 enables a bargaining representative to apply for a PABO. Subject to the restrictions in ss 437(2A) and 438(1), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in
s 443. Section 443 relevantly provides:
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).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
Threshold requirements
It is not in dispute that the TWU:
a) is a bargaining representative and entitled to make this application;
b) has made a proper application as required by the Act and has met the documentary and notice requirements for the application; and
c) is not prevented from bringing the application by virtue of s 438 given the nominal expiry of the Hanson Agreement.
I am satisfied that the threshold requirements have been met.
Consideration
The issue before me is whether the TWU has been, and is, genuinely trying to reach an agreement with Hanson. It appears that the conduct relevant to a determination of whether the TWU is genuinely trying to reach agreement is that which has occurred during bargaining, and that which is presently occurring.
It is not a simple matter to establish whether a party is genuinely trying to reach agreement.[20] The Act does not define what constitutes ‘genuinely trying’ and it has been left to the Commission to determine on a case by case basis.
Mr Gonzales advanced that the TWU was not genuinely trying to reach agreement because:
a) contrary to the assertion of the TWU, negotiations had not stalled and both parties had been actively engaged in discussions with significant progress having been made prior to the last meeting on 7 November 2023;
b) at the meeting on 7 November 2023, the TWU did not adhere to the principles of good faith bargaining as required by the Act – there was concern regarding the conclusion of the meeting and the subsequent cessation of communication between bargaining representatives;
c) at the meeting on 7 November 2023, the sole focus of the employees and their bargaining representatives was on their latest claim for paid lunches on ordinary hours worked of 8 hours each day, in addition to what is already included in the Hanson Agreement, that being, a paid meal allowance after 10 hours worked – the bargaining representatives did not engage in good faith discussions, leading to an impasse on this crucial issue; and
d) the actions of the bargaining representatives, as described above, indicate a failure to maintain open and constructive communication channels, which is essential for genuine bargaining.
Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ within the meaning of s 443(1)(b) is a question of fact to be decided by reference to all of the circumstances of the bargaining in question.[21] It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.[22] There are two temporal components to s 443(1)(b): the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement.[23]
While there is a relationship between s 443(1)(b) and the need to bargain in good faith under s 228, a Full Bench of the Commission in Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union cautioned against conflating the two requirements.[24] It stated that ‘a party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach agreement’.[25] The good faith bargaining obligation is a separate consideration to the assessment of whether a party is genuinely trying to reach agreement.[26]
It is noted that Hanson was adamant that negotiations had not stalled and that discussions had been actively engaged in with significant progress having been made prior to the meeting on 7 November 2023. In certain respects, Hanson’s own submissions supported the TWU’s contentions that it had been genuinely trying to reach agreement with Hanson.
Whilst Hanson referred to the cessation of communication between the parties since the bargaining meeting on 7 November 2023, Mr Gonzales conceded that Hanson had not contacted the TWU to arrange a further bargaining meeting or to continue discussions. I therefore do not consider anything turns on this point.
As to the sole focus of the employees at the bargaining meeting on 7 November 2023 being on paid meal breaks, Mr Nelson gave uncontested evidence that at the meeting on 7 November 2023, other claims were discussed such as a $750 one off cost of living payment and quarterly paid TWU site meetings.[27] Insofar as it is relevant, I find that the bargaining meeting on 7 November 2023 was not limited to discussion about only paid meal breaks.
However, it is to be appreciated that focussing on one claim at a bargaining meeting, particularly when it is contentious, does not therefore mean that in these circumstances the TWU was not genuinely trying to reach agreement. The position adopted by the TWU in this respect is consistent with adopting a hard bargaining approach to the proposed enterprise agreement. That is, the TWU seeking agreement on one of the terms proposed by it in relation to the matters outstanding.
Unfortunately, much of the case was argued on the basis of the good faith bargaining provisions of the Act and the TWU’s alleged failure to bargain in good faith in relation to the meeting held on 7 November 2023. However, based on the evidence before me, particularly the uncontested evidence of Mr Nelson, there is no substance regarding Hanson’s contention that the TWU had failed to comply with the good faith bargaining provisions in the Act.
The current application is for a protected action ballot order and what is required to be determined is whether I am satisfied that TWU has been, and is trying to, reach an agreement with Hanson as required by s 443(1)(b) of the Act. Whilst it may be possible that the circumstances of a good faith bargaining breach may be relevant to determining if s 443(1)(b) has been met, in this case I do not believe so.
For the reasons given, I am unpersuaded that either of the bases alone or in combination advanced by Hanson support a conclusion that the TWU has not been, and is not, genuinely trying to reach an agreement with Hanson. To the contrary, the totality of the evidence and in particular the evidence given by Mr Nelson and Mr Gonzales supports overwhelmingly the conclusion that the TWU has been, and is, genuinely trying to reach agreement with Hanson, and I so find.
Conclusion
As identified at the beginning of this decision, I have concluded that the TWU has been, and is, genuinely trying to reach agreement with Hanson, and I am further satisfied that the requirements in ss 440, 443(1) and 437 of the Act have been met.
DEPUTY PRESIDENT
Appearances:
L Slaney for the TWU.
P Gonzales for Hanson.
Hearing details:
2023.
Perth (by video):
22 November.
[1] AE511730.
[2] Vero Engagement & Voting Solutions Pty Ltd [2023] FWC 1531.
[3] PR768507.
[4] Form F34B – Declaration in support of an application for a protected action ballot order, [2.1 (1)] (Form F34B).
[5] Ibid [2.1(2)].
[6] Ibid [2.1(3)].
[7] Ibid.
[8] Ibid [2.1(4)].
[9] Ibid [2.1(5)].
[10] Witness Statement of Christopher Nelson, [4] (Nelson Statement).
[11] Form F34B (n 4) [2.1 (9)], Annexure B.
[12] Nelson Statement (n 10) [4(d)].
[13] Ibid.
[14] Ibid [4(e)].
[15] Ibid [4(f)].
[16] Ibid [4(g)].
[17] Ibid [4(h)].
[18] Ibid [5(a)].
[19] Form F34B (n 4) [2.1(10)].
[20] Liquor, Hospitality and Miscellaneous Union -Western Australian Branch v CSBP Ltd [2007] AIRC 469.
[21] Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union (2015) 247 IR 5, 24 [57] (Esso).
[22] Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407, 412 [32]; National Union of Workers (NUW) v Sakata Rice Snacks Australia Pty Ltd[2016] FWC 6262, [25].
[23] Esso (n 21) 23–4 [54].
[24] Esso (n 21).
[25] Ibid 13 [18].
[26] Ibid.
[27] Nelson Statement (n 10) [6(b)].
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