Transport Workers' Union of Australia v Ingleburn Bus Services Pty Ltd T/A Interline Bus Services

Case •

[2022] FWC 538
[2022] FWC 538

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Ingleburn Bus Services Pty Ltd T/A Interline Bus Services

(B2022/160)

DEPUTY PRESIDENT CROSS

SYDNEY, 10 MARCH 2022

Proposed protected action ballot of employees of Ingleburn Bus Services Pty Ltd – genuinely trying to reach agreement – extended notice periods – specified ballot agent.

Introduction

  1. The Transport Workers Union of Australia (NSW Branch) (the TWU) is a bargaining representative in relation to a proposed enterprise agreement that will cover certain employees of Ingleburn Bus Services Pty Ltd (the Respondent). On 4 March 2022, the TWU made an application (the Application) under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of the Respondent who are members of the TWU, and who would be subject to the proposed enterprise agreement.

  1. The Respondent opposed the Application on the basis that:

(a)The TWU has not been, and is not, genuinely trying to reach an agreement with the Respondent, with the consequence that one of the pre-conditions to making a PABO which is found in s.443 of the Act has not been satisfied;

(b)Some of the proposed actions in the draft notice of the ballot do not constitute industrial action on the basis that they raise work health and safety issues and would simply lead to lock downs of the Respondent’s depot due to safety matters;

(c)The notice period under section 443(5) of the Act should not be limited to 3 days notice, as it was well established that at least 5 days notice is required in exceptional circumstances such as the operations of passenger transport services; and

(d)The application to have the vote conducted by an organisation in Western Australia known as ‘Democratic Outcomes’ with allegedly no experience in such polling within the passenger transport industry was inappropriate, and the Australian Electoral Commission was the appropriate party to conduct the election.

  1. The matter was allocated to my Chambers on 7 March 2022, and directions were issued in line with the timeliness requirements of s.441 of the Act, with a compressed timetable for the filing of materials, and the matter was listed for hearing on 8 March 2022 (the Hearing). In the Hearing the TWU relied upon a statement of Mr Craig Curran, an Organiser for the TWU, together with a statutory declaration of Mr Michael Michael, the Managing Director of Democratic Outcomes Pty Ltd (CiVS), being the proposed protected action ballot agent. The Respondent relied upon a statement from Mr Joe Oliveri, Managing Director of the Respondent.

  1. At the conclusion of the Hearing I advised the parties that I had formed the view that the TWU was genuinely trying to reach an agreement, and I would issue the PABO in an amended form. The amended form of the PABO resulted both from concessions made by the TWU and the Respondent, and from my reasons for decision. I further indicated that the reasons for my decision would be provided promptly. This decision is the statement of those reasons.

Legislative Scheme

  1. The requirements that relate to a protected action ballot are set out in Part 3-3, Division 8 of the Act. A PABO will only be made on application by a bargaining representative of an employee who will be covered by a proposed enterprise agreement (the Proposed Agreement). It is common ground that the TWU is a bargaining representative for the Proposed Agreement of at least some of the employees who will be covered by the Proposed Agreement. It is also not in dispute that the nominal expiry date of the current agreement, the Interline Bus Service and Transport Workers Union of Australia Fair Work Agreement 2018 (the Existing Agreement), has passed on 30 June 2021.

  1. A PABO may only be made in limited circumstances, and the Fair Work Commission (the Commission) must make an order, if it is satisfied that:

    (a) there has been an application made under section 437; and

    (b) the applicant (in this case the TWU) has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. [1]

  1. There is no dispute that the TWU has made a valid application under s.437 of the Act, and the TWU maintains that it has been and is genuinely trying to reach an agreement with the Respondent. The relevant Organiser for the TWU, Mr Craig Curran, submitted a Statutory Declaration supporting the application in which he deposed that the TWU is genuinely trying to reach an agreement with the Respondent.

  1. Section 450 of the Act specifies directions for the conduct of PABO’s if the ballot agent is not the Australian Electoral Commission. It provides:

Directions for conduct of protected action ballot

(1)   This section applies if the protected action ballot agent is not the Australian Electoral Commission.

(2)   The FWC must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:

(a)    the development of a timetable;

(b)   the voting method, or methods, to be used (which cannot be a method involving a show of hands);

(c)   the compilation of the roll of voters;

(d)   the addition of names to, or removal of names from, the roll of voters;

(e)   any other matter in relation to the conduct of the ballot that the FWC considers appropriate.

Note 1:      For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting.

Note 2:      A protected action ballot agent must not contravene a term of a direction given by the FWC in relation to a protected action ballot (see subsection 463(2)).

(3)    A direction given under subsection (2) may require the protected action ballot agent to comply with a provision of this Subdivision (other than subsection 454(5)) in relation to a particular matter.

Note:         Subsection 454(5) provides for the Australian Electoral Commission to vary the roll of voters on its own initiative.

(4)   To enable the roll of voters to be compiled, the FWC may direct, in writing, either or both of the following:

(a)    the employer of the employees who are to be balloted;

(b)    the applicant for the protected action ballot order;

to give to the FWC or the protected action ballot agent:

(c)    the names of the employees included in the group or groups of employees specified in the protected action ballot order; and

(d)   any other information that it is reasonable for the FWC or the protected action ballot agent to require to assist in compiling the roll of voters.

The PABO Application

  1. The Application proposed the following as ballot questions, that were also outlined in the draft order accompanying the Application:

“In support of reaching an enterprise agreement with your employer, do you support the taking of protected industrial action against your employer which may involve taking separately, concurrently and/or consecutively, any or all the actions set out below:

Question 1
An unlimited number of indefinite bans on the working of overtime?

• Yes
• No

Question 2
An unlimited number of stoppages of work for 1 hour?

• Yes
• No

Question 3
An unlimited number of stoppages of work for 2 hours?

• Yes
• No

Question 4
An unlimited number of stoppages of work for 4 hours?

• Yes
• No

Question 5
An unlimited number of stoppages of work for 8 hours?

• Yes
• No

Question 6
An unlimited number of stoppages of work for 24 hours?

• Yes
• No

Question 7
An unlimited number of stoppages of work for 48 hours?

• Yes
• No

Question 8
An unlimited number of stoppages of work for seven days?

• Yes
• No

Question 9

An unlimited number of indefinite stoppages of work?

• Yes
• No

Question 10

The wearing of union clothing, badges and other union campaign items and the placing of union campaign material in the workplace?

• Yes
• No

Question 11

An unlimited number of bans or indefinite bans on wearing uniforms (except for personal protection or safety equipment)?

• Yes
• No

Question 12

An unlimited number of bans or indefinite bans on the use of ticket machines and other fare collection devices?

• Yes
• No

Question 13

An unlimited number of bans or indefinite bans on refueling vehicles?

• Yes
• No

Question 14

An indefinite or periodic ban on the use of personal technological devices such as mobile phones, smart watches, computers or tablets to receive and respond to work related communications whilst not at work.

• Yes
• No

  1. Regarding the directions to the PABO ballot agent, the draft order accompanying the Application contained directions that remain unchanged in the Order published with this decision.

Factual Background

  1. The Respondent operates bus services in Sydney. The nominal expiry date of the Existing Agreement was 30 June 2021. As a result of the Existing Agreement expiring, the TWU sought to commence bargaining with Respondent for a new agreement.

  1. Prior to the commencement of agreement negotiations, the TWU provided the Respondent and other bus operators across the Sydney metropolitan public transport network with a log of claims, including Transit Systems (Region 3), Transdev (Regions 10, 12 and 13), CDC (Regions 4 and 14), Busabout (region 2). Subsequently (though no dates were identified), PABO’s were made against Transdev, CDC and Transit Systems and protected action has been taken with respect to those negotiations.

  1. The metropolitan bus service contracts in the Sydney Metropolitan area, including those currently operated by the Respondent, are currently being put to tender and the nature of the service contracts is that the Government funds the wages and wage increases of operators through the contract funding model.

  1. The NSW Government has over the last 3 years privatised its former public transport operator, the State Transit Authority (the STA). During that time the various disputes have arisen, some of which have been referred to the Commission. The Rail, Tram and Bus Union has previously represented STA drivers and has sought to continue to represent their members as they become employed in the private sector.

  1. On 28 November 2021, the TWU filed a bargaining dispute claim in  the Commission against the Respondent. On 2 December 2021, the bargaining dispute was conciliated before Commissioner Cambridge. As a result of the conciliation, parties set the date for the first bargaining meeting, and the Respondent issued a Notice of Employee Representative Rights (NERR) to all drivers advising that negotiations for a new enterprise agreement were commencing.

  1. Also on 10 December 2021, the Respondent emailed Mr Curran a copy of a draft enterprise agreement.

  1. The first bargaining meeting took place between parties on 17 December 2021 in person at the Respondent’s Leppington Depot. In this meeting, the TWU issued the Respondent with a copy of the log of claims endorsed by their membership. In that meeting the TWU spoke to the log of claims and the reasons why those claims were sought. During that meeting Mr Ian MacDonald, the Respondent’s representative said:

“What are the wage offers sought?”

Mr Curran replied:

“The increases have not yet been finalised through discussions with members but as a general rule we like to talk about money later in the bargaining piece as it will be contingent on the log of claims and what parties can concede between one another, hence why our log of claims is subject to change.

  1. On 19 January 2022, the Respondent provided a response to the TWU’s log of claims.

  1. On 21 January 2022, the representatives met for the second bargaining meeting. In this meeting the parties went through and discussed the responses that were provided by the Respondent to the TWU log of claims.

  1. On 1 February 2022, the TWU provided a written response to the enterprise agreement proposed by the Respondent. An example of the format of that response, being the first three responses, is included in the table below:

Interline Claim Response TWU Position

Title of agreement (Clause 1)

Accept

·     Agreed.

Term of Agreement (Clause 3)

Review

·     Seeking advice from leadership/membership.

Exclusion of Passenger Vehicle Transportation Award (PVTA)

(Clause 4 (4))

Reject

·     To have the PVTA underpin the agreement.

·     Willing to accept wording in clause that the terms of the EA will prevail where there is there is an inconsistency.

  1. At the end of the second bargaining the parties agreed that there would be a third bargaining meeting, scheduled for 16 February 2022.

  1. On 14 February 2022, Mr MacDonald sent Mr Curran an email as follows:

“Hi Craig

I had a lengthy conference with my members this morning and it is apparent that you are still awaiting advices with respect to a number of critical issues, including wage rates and the issue of casual conversion.

I have attached a comprehensive response to your most recent advices and have also
attached a couple of decisions of the FWC in relation, particularly, to the casual conversion clauses.

I have advised Interline to cancel Wednesday's meeting until you have obtained at least some advices to the fundamental issues you have raised.

I am also aware that you are involved with some of your members in a dispute with Interline relating to proposed new rosters, which may impact upon the ability of the parties to reach an agreement until the rosters issue is resolved.

I am also concerned with tenders commencing shortly that the parties have lost their window to negotiate a new agreement.

I look forward to your thoughts.

Regards

Ian MacDonald”

  1. The TWU lodged the PABO application on Friday 4 March 2022. Also on 4 March 2022, and apparently in response to the PABO, the Respondent provided notice, pursuant to s.229 of the Act, that it considers that the TWU are not bargaining in good faith and not meeting the criteria for genuinely trying to reach an agreement.

The Issues for Determination

(a)      Not Genuinely Trying to Reach an Agreement

  1. The Respondent submits that the Commission cannot be satisfied that the TWU is genuinely trying to reach an agreement with the Respondent. In support of that submission the Respondent referred to:

(a)       The evidence of Mr Oliveri that the TWU had “provided written evidence that the Applicant is not prepared to negotiate for critical issues such as the term of the agreement or the wage rate increases because the Applicant’s negotiators are awaiting further instructions from their leadership;” and

(b)       “The inference of the nature of the pattern bargaining being conducted by the TWU with several other transport operators who are also being subjected to the same terms and conditions and same delay with respect to issues such as wage rate increases and terms of agreement.”

  1. The TWU submitted that it is not a condition of “genuinely trying to reach an agreement” to have finalised their claims, or to have articulated their claims in full, and the evidence of Mr Curran establishes that the Applicant has provided its log of claims including a general ambit for that for which the agreement is sought, and the Respondent has provided a response to those claims.

  1. The TWU’s representatives have made clear that their preference is to first negotiate the non-financial terms and conditions of the proposed enterprise agreement prior to discussing the wage claim, and further instruction is required as to the length of agreement that would be accepted, however this also is contingent on the course of bargaining between parties.

  1. The TWU denies that it has joined outside parties to the negotiations or, in fact, that it is or has engaged in pattern bargaining, and submitted that it is not unusual for claims in bargaining to be consistent across different companies in the same industry.

  1. In JJ Richards & Sons Pty Ltd v Fair Work Australia[2] (JJ Richards), the Full Court of the Federal Court considered whether a protected action ballot order under s.443(1) of the Act could be made even though bargaining between an employer and employees had not commenced. The Full Court rejected the proposition that s.443 should be construed in a way that required bargaining to have commenced, and made general observations as to the operation of s.443(1) of the Act. In particular, Flick J held:

“It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant … is … genuinely trying to reach an agreement with the employer” unless:

·an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and

·the employer has foreshadowed — even in the most general of terms — its attitude as to the proposed agreement.

More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:

·bargaining to have commenced within the meaning of and for the purposes of s 173, found within Pt 2-4 of the Fair Work Act.

So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement … ”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” — on one approach to construction — perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement — let alone genuinely tried to reach agreement.”

  1. The materials relied upon by the TWU, being Mr Curran’s statement, clearly establishes that the TWU is genuinely trying to reach an agreement with the Respondent in the negotiations for the Proposed Agreement. The TWU has generally articulated the terms of the agreement it seeks, albeit that it seeks to reserve its position on certain terms such as wage rises until other terms are settled. The TWU has also responded generally to the positions advanced by the Respondent.

  1. Such responsiveness is exhibited in the document that was submitted by the Respondent to provide written evidence that the Applicant is not prepared to negotiate for critical issues such as the term of the agreement or the wage rate increases. The document identified as supporting that proposition was identified as being sent with the email of 14 February 2022, and an apparently later iteration of the the TWU written response provided on 1 February 2022, to the enterprise agreement proposed by the Respondent, of which the first three entries are extracted in tabular form above. It is identified as a later iteration because it contains a fourth column being the Respondent’s responses to the TWU’s written response of 1 February 2022. That document (the Updated Table) included, relevantly and by way of example, the following entries:

  1. A number of observations may be made about the above entries in the Updated Table:

(a)The issue of the TWU seeking advice regarding the Term of the Agreement (Clause 3) seems to have been of no significance, with the Respondent simply seeking to be advised of “your position once it is clarified.”

(b)The Exclusion of Passenger Vehicle Transportation Award (Clause 4(4)) is arguably an example of the Respondent and not the TWU, prima facie and subject to the exception relating to genuinely trying to reach an agreement by a course of conduct, [3] “seeking common terms to be included in 2 or more of the agreements.”[4]

(c)While the Respondent’s position on wage rises was more emphatic in the Updated Table, the email that passed apparently with the Updated Table simply noted that it was apparent that Mr Curran was still awaiting advice with respect to a number of critical issues, including wage rates.

  1. I reject the submission that the TWU is not genuinely trying to reach an agreement. I consider the nature of the progress of negotiations between the parties to be unremarkable. While the TWU is awaiting advice and instructions on certain issues, it had still been able to participate in two bargaining meetings, with the third bargaining meeting cancelled by the Respondent. There is no evidence supporting an inference of pattern bargaining in this matter. Were such evidence to exist, the Respondent could pursue appropriate relief in the appropriate jurisdiction.[5]

(b)      Proposed Actions not Constituting Industrial Action

  1. The Respondent originally objected to the proposed Questions 11, 13 and 14 in the draft notice of the ballot on the basis that they do not constitute industrial action as they raise work health and safety issues and would simply lead to lock downs of the Respondent’s depot due to safety matters.

  1. In the Hearing the Respondent withdrew those objections.

(c)       The Notice Period Under Section 443(5) of the Act

  1. The Respondent submitted that the notice period under section 443(5) of the Act as it related to Questions 1 to 9 (inclusive) should not be limited to 3 days notice, as it was well established that at least 5 days notice was required in exceptional circumstances such as the operations of passenger transport services.[6]

  1. The TWU accepted the variation of the PABO to five days notice in relation to Questions 2 to 9 (inclusive), but pressed for a three day notice period to apply in relation to question 1.

  1. Mr Oliveri gave evidence of the effect of overtime bans and how they could be accommodated. It was apparent from that evidence, which I accept, that particularly to ensure the safety of school children, similar notice periods to those applying to stoppages of work were required for overtime bans. Accordingly, the notice period regarding Question 1 has been amended to five days.[7]

(d)      Choice of Electoral Agent

  1. The Act clearly contemplates the appointment of protected action ballot agents other than the Australian Electoral Commission.[8] At the time the Application was made, a statutory declaration of Mr Michael, the Managing Director of Democratic Outcomes Pty Ltd (CiVS), being the proposed protected action ballot agent, was relied upon. That statutory declaration included the following:

“During my engagement by CiVS, in the roles of either Managing or Executive Director:

• CiVS has completed approximately one thousand five hundred ballots, the vast majority for Enterprise Agreements, tallying the votes from approximately half a million people.

• CiVS also counts Police Unions as repeat customers. All our staff must have police clearances to operate our systems.

• CiVS provides an independent voting solution. CiVS has no affiliation with any union or employer, all voting is confidential and secure.

• CiVS will not disclose how any individual has voted to the client.

• The CiVS voting environment is housed in a locally owned and operated secure hosting facility in Perth, Western Australia. All data is stored in Australia.

• The CiVS voting sessions run within an SSL Certification.

• CiVS is bound by the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs).

• Only authorised individuals working for our organisation will have access to personal information.

• I sincerely and honestly believe that all authorised individuals are fit and proper people to be conducting the ballot,

• We also ensure all staff with access to personal information are trained in our Privacy Policy and have an up to date National Police Clearance or equivalent.

• CiVS has successfully completed ballots for companies and organisations including the WA, Northern Territory, and Tasmanian Police Unions, Federal Department of Agriculture & Water Resources, COPP, Federal Court of Australia, ACARA, Tourism Council of WA, ACCC, ABCC, James Cook University, NTEU- James Cook University Protected Action Ballot, Murdoch University, NTEU- University of Queensland Protected Action Ballot, BHP, Alcoa, Halliburton, Thiess, Lendlease, Esso, BP, Broadspectrum, Schlumberger, Orica, South32, Sodexo, CUA, and many more.

• Our standard operating procedures ensure the ballot will be fair and democratic and conducted expeditiously.

  1. In the Hearing Mr Michael gave evidence and was cross-examined by the Respondent. Questions posed to Mr Michael revolved primarily around the industries his company may have balloted, and whether any were transport companies.

  1. In the Respondent’s submissions on this issue, all that was relied upon was Mr Oliveri’s evidence, which was as follows:

“I am aware that the Applicant seeks to have an organisation from Western Australia act as the returning officers for any election following from an order for a protected action ballot. I am concerned that the application for the returning officers with no experience in the passenger transport industry might create confusion amongst our workforces. My stated preference in the event that orders are made would be to have the Australian Electoral Office, who are known to us and who usually conduct such ballots.”

  1. I found Mr Michael to be an impressive witness, and accept his evidence that, unsurprisingly, as CiVS is involved only in balloting, he is ordinarily unaware of the subject of the ballot or the industries to which relate. When pressed he identified some previous clients that seemed to have been in the transport industry, and I accept that CiVS seem to have performed such work.

  1. However, even if CiVS had not performed work in the transport industry, that would have been of no moment. The Act clearly contemplates protected action ballot agents other than the Australian Electoral Commission. It is not for the Commission to dictate one ballot agent over another. The Respondent’s objection to the appointment of CiVS was baseless and is rejected.

Conclusion

  1. For the reasons above I issued the PABO on 10 March 2022, including amendments in accordance with this decision.

DEPUTY PRESIDENT

Appearances:

Ms I Wisniewska, for the Applicant
Mr I MacDonald, for the Respondent

Hearing details:

2022.
March 8.
Sydney (via videoconference)


[1] S.443(1) of the Act

[2] (2012) 201 FCR 297.

[3] S.412(2) of the Act.

[4] S.412(1) of the Act.

[5] S.422 of the Act.

[6] Transport Workers Union of Australia v. Westside Bus Company & Ors[2016] FWC 3347.

[7] S.437(5) of the Act.

[8] ss.449 and 450 of the Act.

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