Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd T/A Armaguard

Case •

[2022] FWC 1747

•

8 JULY 2022
[2022] FWC 1747

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Linfox Armaguard Pty Ltd T/A Armaguard

(B2022/633)

COMMISSIONER HUNT

BRISBANE, 8 JULY 2022

Proposed protected action ballot of employees of Linfox Armaguard

  1. The Transport Workers’ Union of Australia (the TWU) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Linfox Armaguard Pty Ltd T/A Armaguard (the Respondent). The application was accompanied by a Form F34B statutory declaration of Mr James Wilkinson, TWU Organiser.

  1. The Respondent notified an objection to the application, contending that an order cannot be made as the Commission cannot be satisfied, as required by s.443(1)(a) of the Act that the TWU has been, and is, genuinely trying to reach an agreement with the Respondent.

  1. The parties participated in a telephone conference before me on 5 July 2022 following which directions were issued.  A video hearing by Microsoft Teams was convened on 6 July 2022.  Ms Helena Dalton-Bridges, Industrial Officer of the TWU appeared together with Mr Wilkinson. Mr Blake Byrne, Workplace Relations Manager appeared for the Respondent, together with Mr Kobie Smit, CIT Operations Lead – QLD/NT of the Respondent.  

Relevant Legislation

  1. Section 443 of the Act sets out when the Fair Work Commission (the Commission) must make a protected action ballot order. Section 443 states:

“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.

(4)       If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a)       the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b)       the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5)       If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note:   Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

Evidence and submissions of the TWU

Mr Wilkinson’s declaration in support of application

  1. In Mr Wilkinson’s Form F34B, declaration in support of application for a protected action ballet order, Mr Wilkinson asserted that the TWU has been and is genuinely trying to reach an agreement with the employer of the employees who will be balloted.

  1. Mr Wilkinson declared that the TWU served a log of claims on Mr Smit at the first bargaining meeting on 7 April 2022. A further bargaining meeting occurred on 18 May 2022. 

  1. Mr Wilkinson declared that the Respondent does not want to meet or has refused to give the TWU further meeting dates. He said that there has not been any headway made on issues contained within the log of claims, and the TWU has asked for additional information regarding the claims made by the Respondent. He said that this information has not been forthcoming.

  1. Mr Wilkinson declared that TWU members have indicated that they wish to take protected industrial action in support of their outstanding claims.

Witness Statement of James Wilkinson

  1. Following the conference on 5 July 2022, Mr Wilkinson prepared a witness statement on 6 July 2022.  He stated that the existing agreement reached its nominal expiry date on 31 December 2021.

  1. The same representatives have been bargaining for two agreements; the Armaguard agreement and the Point 2 Point Secure Pty Ltd (P2P) agreement.  P2P is a related entity of the Respondent.  There have been six meetings for the P2P agreement and only two meetings for the Armaguard agreement in the seven months since the agreements reached their nominal expiry dates.

  1. On 29 November 2021, Mr Wilkinson sent the following email to Mr Smit:

“Good morning Kobie,

I hope this email finds you well?

I am reaching out to kick off the EA’s for both Point 2 Point and also Armaguard.

As you are aware, the Point 2 Point EA has expired, and the Armaguard is about to expire.

We need to start these agreements asap.

If you have any questions, please do not hesitate to contact me.

Kind regards

--

James Wilkinson”

  1. On 7 February 2022, Mr Byrne emailed Mr Wilkinson, advising that he didn’t have Mr Wilkinson’s mobile number, gave his own mobile number and said, “…please contact me on [redacted] to discuss the first negotiation meeting for the Qld Road Crew Agreement.” 

  1. On 8 February 2022, Mr Wilkinson replied:

“Good morning Blake,

Thank you for your email.

We are seeking a State Delegates meeting for the whole day on the 28th of February 2022, to get our [log of claims sorted]. Can you please have the delegates released please.

And if you have any questions, please do not hesitate to contact me.

Kind regards”

  1. A State Delegates’ meeting is one held between the TWU officials and members employed by the Respondent.  It is not a bargaining meeting for the renegotiation of the agreement.

  1. Mr Byrne emailed Mr Wilkinson on 11 February 2022 to the effect that 28 February 2022 was not a suitable day due to workload and availability.  He proposed 2 March 2022 as a suitable date to release delegates, including paying delegates, for the day if they were not rostered on.  Mr Wilkinson replied that he was busy with meetings that day and proposed 1 March 2022.

  1. On 22 February 2022, Mr Byrne emailed Mr Wilkinson to advise that delegates could be released on Wednesdays to meet, but not all could be released on any other day of the week.  Mr Wilkinson committed to replying the next day. 

  1. A negotiation meeting for the P2P agreement was held on 23 February 2022.  Following the meeting, Mr Wilkinson sent the following email to Mr Byrne:

“Good afternoon Blake,

As discussed this morning at the point to point EA meeting, I am not available to hold the state armaguard meeting next Wednesday due to other commitments.

As per 46.1(k) the delegates have a right to attend the meeting.

As this meeting is for the upcoming EA, the only day I can hold the meeting before we meet the company is on Tuesday the 1st of March. I have already moved the meeting date to try and work with the company, but I can’t move it any more with the other [commitments] I have.

I hope that you we can have all the delegates released for the day so we can be ready for the EA.

Kind regards”

  1. The State Delegates’ meeting was then scheduled to occur on Tuesday, 8 March 2022.  The sites at Bundaberg and Rockhampton caucused between 6:00am and 7:00am on account of operational requirements.  All other sites caucused from 8:30am. 

  1. The first enterprise bargaining meeting between the TWU and the Respondent occurred on 7 April 2022.  The TWU tabled its log of claims. Mr Wilkinson’s evidence is that the Respondent was not interested in discussing the claims in detail but the Respondent did seek clarification on the following claims within the log of claims:

6)        status quo;

7)        consultation;
           17, 18) driver safety clauses; and

22)      voluntary redundancies.

  1. Mr Wilkinson gave an explanation on the day about these clauses and said they would give further clarification on the delegates charter. Mr Wilkinson reported that the clauses would not be out of keeping with terms already established in other Linfox agreements.

  1. Mr Wilkinson received a text message from Mr Smit on 20 April 2022, asking if he could attend a P2P negotiation on 4 May 2022, but there was no further communication about Armaguard agreement negotiations. Mr Wilkinson sent the following text in reply:

“Hey mate, I [thought] with the short weeks we were pushing back armaguard and point 2 point to the 18th may?”

  1. It is to be noted that there were four public holidays (Monday to Friday) in four consecutive weeks in Queensland during April and May 2022.  Accordingly, there were four weeks in a row where only four days of work was performed Monday to Friday.

  1. On 17 May 2022, Mr Wilkinson sent Mr Smit a text seeking assurance that delegates would be released to attend the negotiation meeting for the Armaguard agreement on 18 May 2022.

  1. Mr Wilkinson attended the negotiation meeting on 18 May 2022 where the Respondent then tabled its log of claims. Mr Wilkinson asked for additional detail regarding the ATM allowance which the Respondent wanted to remove from the base rate of pay and the Respondent’s proposal concerning one-person crewing. At the meeting, 8 June 2022 was set as the next date for a negotiation meeting. 

  1. The meeting of 8 June 2022 was postponed to 15 June 2022 by the Respondent.

  1. On 10 June 2022, Mr Wilkinson sent the following email to Mr Byrne:

“Good morning Blake,

I hope this email finds you well?

Just a quick email to see if the company has released All delegates for the meeting on Wednesday for armaguard?

Also, we will be seeking more information on the company [log of] claim,

·  What was the amount for the ATM allowance that the company wanted to take out of the base rate?

·  What information was available for one man crewing?”

  1. Mr Byrne replied that day:

“Kobie – please confirm the status of the Delegates release.

We will table the responses to question 1 and 2 during the meeting on the 15th.”

  1. The meeting of 15 June 2022 did not proceed as Mr Smit was hospitalised.  Attempts were made to have Mr Narishen Naidoo, Head of Operations attend.  Mr Byrne informed Mr Wilkinson by text message:

“If he can’t, the meeting won’t go ahead.

The operation have all authority to make decisions so if they’re not there the meeting will be useless

PH in Melbourne so hard to get a hold of anyone.”

  1. On 16 June 2022, Mr Wilkinson held yard meetings with members to report back progress on the enterprise agreement negotiations. Various meetings were held between 5:00am and 8:00am that day. All of the meetings endorsed the TWU applying for a protected action ballot to further the enterprise agreement claims.

  1. Mr Wilkinson said he was told by Mr Smit and Mr Byrne that there will be no increase in the Armaguard agreement; it will be a zero increase unless members want to give up a long list of entitlements.

  1. Mr Wilkinson said he has continually raised the issue of bargaining for the Respondent when he has attended the P2P negotiations as the Respondent is the parent company of P2P. P2P negotiation meetings have occurred on:

·  9 February 2022;

·  9 March 2022;

·  23 March 2022;

·  16 April 2022; and

·  18 May 2022.

  1. On 28 June 2022, the following text messages were exchanged:

“Mr Byrne:I just noticed there’s a P2P meeting in the calendar for tomorrow – is this going ahead?

Mr Wilkinson:            I have not planned for it mate, as I was waiting for the company to come back to me with the next meeting for both point 2 point and armaguard. I have planned another meeting for tomorrow morning

Mr Byrne:That’s sweet mate will schedule something to kick it back off again”

  1. This application was filed on 1 July 2022.

Evidence given during the hearing

  1. Mr Wilkinson accepted that there has been no hindrance by the Respondent to permit Mr Wilkinson speaking with members on site. 

  1. Mr Wilkinson asserted that bargaining should have been happening since November 2021 and the TWU was prepared since then.  He stated that a log of claims had been prepared from November 2021 but since bargaining meetings didn’t promptly occur, they were revised.  The log of claims was settled by delegates at the meeting of 8 March 2022 and presented to the Respondent at the first negotiation meeting on 7 April 2022. 

  1. Mr Wilkinson said that he has not been satisfied with the frequency of meetings with the Respondent given the same people meet more regularly for P2P agreement negotiations.  He stated that the Respondent asked the TWU not to hold meetings during the Easter and May public holidays.

  1. Mr Wilkinson denied that the purpose of making the application was so that TWU members who work for P2P or the Respondent can take protected industrial action at the same time.

  1. When asked when it was he “continually raised the issue of bargaining” with the Respondent, he said he raised it with Mr Smit at the conclusion of at least one meeting.  Mr Smit’s response was that he would discuss the request with Mr Phil Prior.  Mr Wilkinson accepts that Mr Byrne was present at all P2P negotiation meetings except for two.  He did not raise this issue with Mr Byrne.

TWU submissions

  1. The TWU submitted that the Respondent has not provided any proper grounds to support its objection to the application. Reference was made to the decision of Flick J in JJ Richards & Sons Pty Ltd v Fair Work Australia,[1] where His Honour said at [58]:

“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 terms – its attitude as to the proposed agreement.”

  1. The TWU noted the Full Bench decision in John Holland Pty Ltd v Automotive, Food, Metals, Engineering Printing and Kindred Industries Union[2] as an authority for the proposition that an applicant has the onus of proof in establishing that they are ‘genuinely trying to reach agreement’. However, JJ Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[3] made clear that where an applicant had called acceptable evidence demonstrating that they were ‘genuinely trying to reach an agreement’, the onus then shifts to the respondent to prove otherwise.

  1. It is contended that there is no requirement for the TWU to have exhausted negotiations, nor is there any requirement for the TWU to concede to the Respondent’s claims in order to establish that they are ‘genuinely trying to reach agreement’. Nor is the test whether or not the TWU has been meeting the good faith bargaining requirements. In Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the AMWU & the AWU and Another,[4] the Full Bench held at [18]:

“In any event, while there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.”

  1. In CFMEU v Bulga Underground Operations Pty Limited,[5] Saunders C (as he then was) held at [54]:

“…One of the objects of Part 2-4 of the Act is to “provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits”. However, that provision does not impose a positive obligation on a participant in a bargaining negotiation to identify or explain the productivity benefits that would be delivered by a claim made by them in connection with negotiations for a new enterprise agreement……”

  1. The TWU submitted that it is clear from Mr Wilkinson’s statement that the TWU has been trying to genuinely reach agreement for many months; the log of claims was served on the Respondent three months ago.  Where the Respondent has asked questions of the TWU relevant to common terms within enterprise agreements such as status quo, consultation and delegates’ rights, the TWU asserts that these are not new or novel concepts to the Respondent. 

  1. The TWU asserted that these are the circumstances reflecting how the bargaining has been proceeding:

·  The parties have had two meetings however the TWU has been trying to meet with the Respondent since November 2021, as demonstrated by Mr Wilkinson’s correspondence with the Respondent;

·  Nothing is preventing further enterprise bargaining negotiations from occurring except the Respondent’s conduct;

·  The TWU has been struggling to get the Respondent to set dates for meetings since February 2022;

·  The TWU tabled a log of claims in early April 2022;

·  The TWU has responded to the log of claims tabled by Linfox Armaguard;

·  The TWU has continually stressed a sense of urgency for further negotiations; and

·  The Respondent was aware the TWU conducted yard meetings with Linfox Armagaurd members over a fortnight ago and that members had directed the TWU to apply for a Protected Industrial action ballot.

  1. The TWU submitted that it is disingenuous for the Respondent’s witnesses to say they were “shocked” to receive this application.

  1. Following the conference of 5 July 2022, the Respondent advised that negotiation meetings will take place on 11 and 20 July 2022, which the TWU is acutely keen to participate in.  The TWU is also prepared to meet at any other reasonable time with the Respondent in order to try and achieve an agreed bargain. The TWU wants assurance that given what it considers to be the Respondent’s poor conduct to-date, members soon have the option of taking protected industrial action to advance their position. 

  1. In answering questions from me in closing submissions, relevant to whether the TWU has provided a considered response to any demands made by the Respondent, the TWU submitted that it had asked questions relevant to two of seven Respondent claims, and that it hasn’t had an opportunity to properly do so because of the lack of meetings held since 18 May 2022.

Evidence and submissions of the Respondent

Witness Statement of Blake Byrne

  1. Mr Byrne is the Workplace Relations Manager of the Respondent, having been in this position since September 2021. He has approximately 10 years’ experience in human resources with the last five years heavily involved in enterprise agreement negotiations.

  1. Mr Byrne has been involved in the negotiations for the replacement Armaguard and Transport Workers Union Queensland Road Crew Enterprise Agreement 2019 (the Armaguard Agreement) and the Point 2 Point Secure and Transport Workers’ Union of Australia Queensland Operations Enterprise Agreement 2013 (P2P Agreement).

  1. Mr Byrne said that his role within these negotiations is to facilitate dialogue between the operational management, the TWU, delegates and employee bargaining representatives. Mr Smit has operational and commercial authority to agree to changes to terms and conditions as part of both negotiations. Mr Smit has been present in each meeting for P2P and Armaguard as has Mr Wilkinson for the TWU.

  1. There have been six P2P negotiation meetings:

·  9 February 2022;

·  23 February 2022;

·  9 March 2022;

·  23 March 2022;

·  16 April 2022; and

·  18 May 2022.

  1. During the P2P meetings, the parties have exchanged log of claims documents, clarified claims, amended, and dropped claims in an attempt to reach agreement.

  1. In contrast, there have been only two negotiation meetings for the Armaguard agreement:

·  7 April 2022; and

·  18 May 2022.

  1. In these meetings, the parties have exchanged their respective log of claims and the Respondent has responded to the TWU’s log of claims, but no further progress has been made.

  1. With respect to the negotiation meeting scheduled for 8 June 2022, Mr Byrne stated that it was rescheduled to 15 June 2022 to accommodate enterprise agreement negotiations in South Australia between the Respondent and the TWU.

  1. On 13 June 2022, Mr Byrne was made aware that Mr Smit had been hospitalised and was unable to attend the scheduled negotiation meeting on 15 June 2022. He immediately made contact with Mr Wilkinson and advised him that Mr Smit was in hospital and he was trying to get Mr Smit’s manager, Mr Naidoo to attend in his place to allow the meetings to continue.

  1. On 14 June 2022, Mr Byrne spoke to Mr Naidoo who advised he would be unable to attend the negotiation meeting the next day as he was required to attend budget meetings to finalise the financial plan for new financial year. Mr Byrne advised Mr Wilkinson on 14 June 2022 that the meeting on 15 June 2022 would not be able to proceed as they had no operational management available to participate in the meeting.

  1. On 28 June 2022, the text messages at [32] were exchanged. 

  1. Between Mr Byrne’s last text message on 28 June 2022 and the TWU lodging the application for a protected ballot order on 1 July 2022, Mr Byrne said he received no further communication from the TWU. On Monday, 4 July 2022, Mr Byrne telephoned Ms Dalton-Bridges to advise, amongst other things:

·  Armaguard and P2P had received the respective PABO applications;

·  Armaguard would be objecting to the making of the order on the basis that only two meetings had occurred and the parties had not actually conducted any bargaining; and

·  P2P would not be objecting to the making of the Order however sought agreement on extending notification time from three (3) days to five (5) days.

  1. Mr Byrne said that he was told by Ms Dalton-Bridges that she would need to seek instruction from Mr Wilkinson with respect to the extension of time and she would call Mr Byrne back. Ms Dalton-Bridges subsequently called Mr Byrne back and advised that Mr Wilkinson was not willing to agree to the extension of time and the TWU would be pressing the application for the protected action ballot for the Respondent. Ms Dalton-Bridges further advised that the TWU would be pressing the application on the basis of its members feeling the Respondent was reluctant to meet.

  1. Mr Byrne recalled advising Ms Dalton-Bridges that the Respondent was prepared to meet and they could lock dates in while on the phone to give the TWU’s members comfort. No dates were scheduled for future meetings. 

  1. Following the telephone conference before me on 5 July 2022, Mr Byrne sent the following email to Mr Wilkinson:

“Hello James,

Following todays teleconference with Commissioner Hunt which concluded just now, I would like to schedule negotiation meetings (full day sessions) with you and the Delegates on the following dates:

·  Monday, 11 July 2022; and

·  Wednesday, 20 July 2022.

I am hopeful that by confirming with you these proposed meeting dates you are satisfied of our intentions to bargain for a replacement Agreement for the Qld Road Crew.

If you could respond ASAP that you will be available to meet so we can make the necessary operational arrangements for the Delegates to be released to participate in paid time.

Kind regards,

Blake Byrne | Workplace Relations Manager”

  1. On receipt of the email, Mr Wilkinson called Mr Byrne to confirm that the Respondent would release regional delegates to attend the negotiation meetings. Mr Byrne affirmed the commitment in the email to Mr Wilkinson that the delegates would be released to attend. Mr Wilkinson advised Mr Byrne that he would come back to him to confirm whether the proposed dates would be suitable.

  1. On 6 July 2022 at 9:58am (AEST), Mr Byrne sent a further email to Mr Wilkinson to confirm that regional delegates would be released to attend negotiations and further requested confirmation of his attendance at the scheduled meetings. At 10:29am on the same day, Mr Wilkinson confirmed that he would be willing to meet on 11 and 20 July 2022, subject to the delegates being able to attend the meetings. At 10:43am the same day, Mr Smit responded to Mr Wilkinson advising him that all delegates would be released to attend.

  1. On 6 July 2022 at 11:32am (AEST), Mr Byrne emailed Mr Wilkinson the clarification and further details he sought on two claims from the Respondent’s log of claims. 

  1. Mr Byrne confirmed that on behalf of the Respondent, he is ready and willing to have meetings with the TWU and the Respondent’s employees for the purposes of bargaining.

Evidence given during the hearing

  1. In cross-examination, Mr Byrne accepted that the existing Armaguard Agreement requires the parties to commence negotiations for a new agreement three months prior to the nominal expiry date.  This would equate to negotiations needing to commence late September 2021.

  1. He stated that the TWU has asked questions in relation to only two of the seven items contained within the Respondent’s log of claims.  Where permanent part-time work was discussed in the meeting of 18 May 2022, the TWU’s response to the Respondent’s position has not been given.

  1. He considers the P2P negotiations to be different to the Armaguard negotiations, as there are only approximately 20 P2P employees covered by the agreement and they are based in the Brisbane metro area. Employees covered by the Armaguard agreement are located in regional areas as well as Brisbane.

Witness Statement of Kobie Smit

  1. Mr Smit is the CIT Operations Lead – QLD/NT of the Respondent. He has held this role since 1 November 2021, having worked within the Respondent in various roles since June 2014.  Mr Smit has approximately 12 years’ experience in the Cash in Transit (CIT) industry. 

  1. The Respondent runs a fleet of armoured and non-armoured vehicles that distribute and collect cash, coin and other valuable products from their customers (which include retail outlets, banks and ATM’s within Australia). Mr Smit stated that the Respondent operates 7 depots with approximately 352 employees within the state of Queensland and has approximately 140 employees covered by the Armaguard Agreement.   

  1. Mr Smit contends that his understanding of bargaining meetings is as follows:

·  The parties would tell each what they were seeking;

·  The parties would describe, explain and clarify why they were seeking what they were seeking;

·  The parties would leave each meeting and return with a preparedness to reach agreement; and

·  Only after each side had outlined what they were seeking could they genuinely start the bargaining process in an attempt to reach agreement.

  1. Mr Smit stated that the above fundamentals are how he intended to approach the bargaining process for the replacement agreement. Mr Smit said he had dialogue with his direct manager (as he was at the time), Mr Phil Prior – National Operations Manager. Mr Smit outlined his fundamentals on how he intended to approach the bargaining process and Mr Prior agreed it was the correct process. Mr Prior advised Mr Smit that he would speak to the TWU and set up meetings as Mr Prior wanted to present the company overview at the first meeting. Mr Prior informed Mr Smit that he would need to attend the bargaining meetings in his capacity as the operational manager within the state of Queensland.

  1. Mr Prior is no longer employed by the Respondent; his last working day was 23 April 2022. Following Mr Prior’s departure, Mr Smit’s reporting lines changed, and his new manager became Mr Narishen Naidoo – Head of CIT Operations.

  1. Mr Smit outlined to Mr Naidoo his approach to the bargaining process with Mr Naidoo concurring it was the correct process. Mr Smit said that as he is operationally and commercially responsible for the day-to-day operations of the Queensland and Northern Territory business, Mr Naidoo instructed Mr Smit to continue with the bargaining and keep him across developments. At all times (other than Mr Smit’s period of incapacity), Mr Smit has been willing to meet and bargain with the employees and the TWU. Mr Smit rejected outright any assertion that Mr Smit or the Respondent has not been willing to meet for the purposes of progressing the negotiations.

  1. On 7 April 2022, Mr Smit participated in the first meeting which he described as a “kick off” meeting for the purposes of bargaining. Present in this meeting, along with Mr Smit, were:

·  Mr Prior;

·  Mr Byrne;

·  Mr James Watt – HR Business Partner;

·  Mr Wilkinson;

·  Mr Nathan Smythe – Road Crew;

·  Mr Russel Humphreys – Road Crew; and

·  Mr Steve Hurndell – TWU Official.

  1. The meeting was held at the Armaguard office in Murarrie, Queensland. Mr Prior provided a business update which included a series of slides detailing the current state of the business. Following Mr Prior’s business update, Mr Wilkinson presented the TWU’s log of claims dated 4 April 2022.

  1. The TWU proceeded to clarify their log of claims and were asked a series of questions by Mr Prior and Mr Byrne. Mr Byrne requested copies of draft clauses that aligned to some industry clauses (changes to consultation, dispute resolution, delegates’ rights and others). The meeting came to a conclusion and a secondary meeting was scheduled for 18 May 2022. Mr Smit said that it was agreed at this meeting that the TWU would supply those draft clauses for consideration.

  1. On 18 May 2022, Mr Smit participated in the second meeting. This meeting was scheduled to allow the Respondent to table its log of claims and respond to the log of claims put forward by the TWU. Including himself, the following people were present:

·  Mr Byrne;

·  Mr Watt;

·  Mr Wilkinson;

·  Mr Smythe;

·  Mr Humphreys; and

·  Mr Hurndell.

  1. The meeting was held at the TWU office. Mr Byrne, participating by Microsoft Teams, tabled the Respondent’s log of claims and spoke to it.  The TWU asked some questions including to request a draft clause with respect to one-man crewing and permanent part-time employment.

  1. Mr Smit stated that Mr Wilkinson did not provide his draft clauses as agreed in the first meeting; rather, he advised Mr Byrne that the members would like the ‘Linfox clauses from the heads of Agreement’. Mr Smit’s evidence is that he found this to be an odd comment as they were negotiating an Armaguard Agreement and had never previously used Linfox clauses in their agreements.

  1. The meeting concluded and it was agreed that they would meet again to allow the TWU to respond to the Respondent’s log of claims and commence the negotiations with respect to narrowing claims in an attempt to reach agreement.

  1. In Mr Smit’s view, the parties had not commenced bargaining at this point. Simply, both sides just told each what they were seeking and got into a position to commence the bargaining and negotiating process at the next meeting. A third meeting was scheduled, however Mr Smit was hospitalised and the meeting did not go ahead. 

  1. On 28 June 2022, Mr Byrne informed Mr Smit that the TWU was waiting for a date for the next bargaining meeting and that Mr Byrne would ‘schedule something to kick it back off again’. Mr Byrne requested that Mr Smit confirm a date that would operationally suit the business to release the delegates for the purposes of a third meeting.

  1. On 1 July 2022, Mr Smit was served with a protected ballot order application. Mr Smit advised Mr Byrne that he had received the application. Mr Byrne commenced dialogue with the TWU from this point with respect to any matters dealing with the application and negotiations.

  1. Mr Smit’s evidence is that considering Mr Byrne’s commitment to the TWU to schedule a further meeting, he was shocked to receive the application three days later.  In Mr Smit’s view, the parties have not yet begun negotiating their respective log of claims, and had simply told each other what they want. Mr Smit advised that on behalf of the Respondent, he is ready and willing to have meetings with the TWU and the Respondent’s employees for the purposes of bargaining.

Evidence given during the hearing

  1. In cross-examination, Mr Smit said that during either the first or second P2P meeting, Mr Wilkinson asked for Mr Prior’s details.  Mr Smit thinks that he then contacted Mr Prior to say that Mr Wilkinson was after him to commence the Armaguard negotiations.

  1. When Mr Smit received the 29 November 2021 email from Mr Wilkinson, he forwarded it to Mr Prior as he thought Mr Prior would lead the Armaguard negotiations. 

  1. Mr Smit was asked why there was a long period of time between the first and second meetings being 7 April 2022 and 18 May 2022?  He stated that there were four short weeks during that period with many public holidays.  He stated that delegates agreed it would be inappropriate to have meetings in that period where there were regular public holidays.

  1. Mr Smit returned to work on 20 June 2022 after his hospitalisation.  He spoke with one delegate and at no time did the delegate inform him that a resolution had been reached by members to seek this application.

Respondent’s submissions

  1. The Respondent rejected the assertion made by the TWU that they have genuinely tried to reach agreement for the replacement of the Armaguard agreement and that the Respondent does not want to meet and has refused to give further meeting dates. The Respondent maintained that it has always been prepared to meet for the purposes of achieving a replacement agreement.

  1. On 28 June 2022, Mr Byrne gave a commitment to Mr Wilkinson that a meeting would be scheduled to “kick off” the negotiations. Mr Wilkinson did not respond to this text message.

  1. Following the filing of the application, Mr Byrne spoke with Ms Dalton-Bridges who advised that because the TWU members felt the Respondent was reluctant to meet they would be pressing their application. Mr Byrne advised Ms Dalton-Bridges that the Respondent was willing to confirm meeting dates immediately if that would quell their members’ concerns and therefore not require the need for the application to go ahead.

  1. On 5 July 2022, Mr Byrne requested Mr Wilkinson to confirm his attendance at bargaining meetings on 11 and 20 July 2022. On 6 July 2022, Mr Wilkinson confirmed his availability to attend these negotiations. The Respondent has committed to further meetings on 11 and 20 July 2022.

  1. The Respondent submitted that with respect to the test under s.443(1)(b) of the Act, the Full Bench found in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers’ Union (AWU) (Esso), at [57]:[6]

“Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad)” (footnotes omitted)

  1. In Total Marine Services Pty Ltd v Maritime Union of Australia[7] (Total Marine), the Full Bench relevantly stated:

“[31]      In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32]      We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to  satisfy the  test  that  the  applicant has  genuinely tried  to  reach an agreement, cannot be granted”

  1. The Respondent contended that both decisions stand for the proposition that a ruling should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The Respondent submitted that the entirety of the circumstances of the case must be taken into account.

  1. The Respondent said that the circumstances before the Commission are as follows:

·  The parties have had two meetings;

·  The Respondent has provided the information requested in the second meeting;

·  The TWU has not responded to the log of claims tabled by the Respondent;

·  The TWU has not stressed a sense of urgency to meet for further negotiations;

·  The Respondent has committed to two meetings on 11 and 20 July 2022.

  1. The Respondent submitted, based on the above, that the application made by the TWU is premature and has not met the threshold requirements under s.443(1)(b) of the Act. As such, the Respondent submitted that the order sought should not be issued.

  1. The Respondent further seeks to point out that negotiations are currently afoot with Point2Point Pty Ltd (P2P), a wholly owned subsidiary of the Respondent. Mr Wilkinson and Mr Byrne have led the negotiations on behalf of the parties. The TWU have also made an application for a protected action ballot against Point2Point. These negotiations have consisted of several negotiation meetings in which the TWU and P2P have responded, altered and revised each side’s respective claims.

  1. The Respondent contended that it is perplexing that the TWU is able to have several meetings to progress negotiations, by reviewing and later altering these claims and even provide responses to the company claims in one negotiation (P2P), but not the other (the Respondent), and still allege to be genuinely trying to reach an agreement.

Consideration

  1. There is no requirement that a minimum amount of negotiation meetings must take place before a union can succeed in an application for a protected action ballot order.  The authorities make it clear that there are no rigid rules in place and each case will depend on the relevant circumstances which require assessment.

  1. It is also clear that it is the TWU’s conduct which is the consideration before the Commission; not the Respondent’s.  It is easy to conflate the test of genuinely trying to bargain in these matters.  I have reminded the parties it is inappropriate to do so.

  1. The TWU asserts that it has been ready, willing and able to bargain for a new agreement since November 2021.  While I accept that Mr Wilkinson initiated contact with the Respondent in late November 2021 to commence bargaining, no further action was taken with the Respondent until 7 February 2022 when Mr Byrne emailed Mr Wilkinson asking for his mobile number.  Clearly there was inactivity by the TWU to the Respondent throughout December 2021 and January 2022 with respect to negotiation of the Armaguard agreement. 

  1. The TWU, including Mr Wilkinson was actively negotiating the P2P agreement in early February 2022.  I accept that in a P2P negotiation meeting in February 2022, Mr Wilkinson asked Mr Smit for Mr Prior’s details.

  1. Much time was then spent by the TWU facilitating a state-wide meeting of delegates to endorse a log of claims for the Armaguard agreement.  This was not settled until 8 March 2022.  I do not accept that the TWU was in any position to bargain for an agreement with the Respondent at any time beforehand.  This is clear from Mr Wilkinson’s email dated 23 February 2022 at [17] where he indicated he wanted the delegates’ meeting to occur so that they could be “ready for the EA”.  Clearly, they would not be ready until the meeting occurred. 

  1. Further, the draft log of claims prepared by Mr Wilkinson in December 2021 looks starkly different from the log of claims put to the Respondent in April 2022.  This is understandable due to the input of delegates in March 2022.

  1. The TWU did not make a request for a negotiating meeting any earlier than April 2022, until such time as the log of claims was settled.   

  1. The final log of claims was prepared by Mr Wilkinson on 4 April 2022 and presented for the first time to the Respondent at the first negotiating meeting on 7 April 2022. I do not accept the TWU’s assertion that the Respondent essentially dragged the chain on the commencement of the negotiations.  Quite simply, the TWU was not ready until after 8 March 2022 to commence negotiations.

  1. Between 7 April 2022 and 18 May 2022, there was a significant number of public holidays in consecutive weeks in Queensland, decimating any sense of a normal working week.  I accept the evidence before the Commission that delegates reached agreement with management for negotiation meetings not to occur during this time. Operationally, it would have been very difficult for it to occur.  While one P2P meeting occurred in this period, there are fewer employees covered by the P2P agreement than the Armaguard agreement, and the P2P employees are in the Brisbane metropolitan area.

  1. Mr Wilkinson’s text message dated 20 April 2022 at [21] demonstrates his understanding that due to the large number of public holidays, the Armaguard negotiation meeting would not occur until 18 May 2022.  He did not express any concern.

  1. The second meeting occurred and for the first time, the TWU learned of the Respondent’s log of claims.  It consists of seven items. Only two of those items have elicited a response from the TWU, and a further question was asked at the meeting of 18 May 2022.

  1. I understand Mr Wilkinson’s evidence to be that his usual practice is to provide the TWU’s response to the Respondent’s log of claims at in-person meetings. It is not his practice to provide a written response in between meetings.

  1. It is understandable that members were dissatisfied when the scheduled meeting of 8 June 2022 was moved to 15 June 2022, and then the 15 June 2022 was abandoned on account of Mr Smit’s illness.  However, the TWU did not then press for a next meeting date.  It didn’t assert to Mr Byrne that a date ought to be set as a matter of priority.  It appears to me that no effort was made by Mr Wilkinson to communicate to the Respondent the members’ dissatisfaction, their appetite for this application, or to insist upon a next date for a meeting.

  1. By the time the members had resolved to instruct the TWU to make the application, the Respondent was no wiser as to the TWU’s views of the Respondent’s log of claims.  Per Mr Wilkinson’s practice, this would be communicated at the next meeting.

  1. The next meeting has now been scheduled for 11 July 2022.  In closing submissions, it was put by the TWU that there has not been an opportunity to put to the Respondent the TWU’s considered response to the Respondent’s demands.  The reason given was there had been no opportunity to do so until further meetings occur.

  1. The TWU’s own proposition is the reason why the application must fail.  The TWU has not provided a considered response to the demands made by the Respondent.  The Respondent’s log of claims is not lengthy by any stretch of the imagination.  It has been available to the TWU at any time to communicate in some fashion its considered response to the log of claims.  That it wishes to do so in-person at the next meeting, noting that the next meeting is scheduled just days away, demonstrates why the application has been made prematurely.

  1. The Full Bench in Total Marine declared that determining if an applicant has met the test of genuinely trying to reach an agreement will frequently involve considering the extent of progress in negotiations and the steps taken in order to reach an agreement.  I have no doubt that the TWU is seeking to commence the act of bargaining.  I am satisfied, however, that the acts taken by the TWU demonstrate that it is in the embryotic stage of bargaining with no present capacity to try to reach an agreement.  In sporting terms, the parties have shown the other side their playing roster, run onto the field, and are awaiting kick-off. 

  1. Mr Byrne offered to the TWU on 4 July 2022 to lock-in meeting dates.  No response was given by the TWU.

  1. No doubt, at the meeting of 11 July 2022 and thereafter, the TWU will provide a considered response to the Respondent relevant to the Respondent’s demands.  It has not yet done so, and accordingly the application is premature.  I consider it disappointing that given the commitment made by the Respondent to meet on 11 and 20 July 2022, the TWU did not withdraw this application. 

  1. The TWU’s assertions that the TWU has responded to the Respondent’s log of claims is not accepted because it has not wholly responded to the Respondent’s log of claims.  The TWU’s assertions that it has continually stressed a sense of urgency for further negotiations is not accepted. Following the cancellation of the 15 June 2022 meeting by the Respondent there was radio silence from the TWU.   The TWU’s assertions that the Respondent was aware that members had directed the TWU to make the application is not accepted on the evidence before the Commission. 

  1. To be clear, for the Commission to determine this issue, all evidence up until the time the decision is made is relevant.  The Commission is not limited to considering evidence up until the time the application is made.  The Respondent offered, on 4 July 2022 to have further meetings and no response was given by the TWU.  Together with my earlier consideration, this weighs heavily on my determination that the TWU is not presently genuinely trying to reach an agreement with the Respondent.  I have weighed that up against the TWU’s agreement, following the conference before me on 5 July 2022 to meet with the Respondent on 11 and 20 July 2022 while still pressing this application.

Conclusion

  1. For the reasons given above, I am not satisfied that the TWU is presently genuinely trying to reach an agreement with the Respondent.  Accordingly, I must dismiss the application as the statutory test at s.443(1)(b) has not been met.

COMMISSIONER


[1] [2012] FCAFC 53.

[2] [2010] FWAFB 526.

[3] [2010] FWAFB 9963.

[4] [2015] FWCFB 2010.

[5] [2017] FWC 3723.

[6] [2015] FWCFB 210.

[7] [2009] FWAFB 368.

Printed by authority of the Commonwealth Government Printer

<PR743460>

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0