Transport Workers' Union of Australia v Prosegur Australia Pty Limited T/A Prosegur

[2017] FWC 2647

[2017] FWC 2647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Prosegur Australia Pty Limited T/A Prosegur
(B2016/1338)

COMMISSIONER GREGORY MELBOURNE, 15 MAY 2017

Proposed protected action ballot of employees of Prosegur Australia Pty Limited.

Introduction

[1] The Transport Workers’ Union of Australia (“the TWU”) has made an application for a protected action ballot order under s.437 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of its members employed by Prosegur Australia Pty Limited T/A Prosegur (“Prosegur”). The employees are primarily involved in driving armoured vehicles in conjunction with cash delivery and collection.

[2] The application was originally lodged on 22 December 2016 and Prosegur subsequently advised that it opposed the application. The Commission accordingly indicated it would now be set down for hearing to deal with the objections. It is also noted that the Act requires that applications made under section 437 be dealt with expeditiously. The Commission originally scheduled the matter for hearing on 10 January 2017, however, it has been adjourned on a number of occasions since that time at the request of the parties. It was finally dealt with in a hearing on 5 May 2017. At the conclusion of that hearing the Commission handed down a decision in transcript. This decision confirms the decision handed down at that time. It contains some minor amendments and corrections, however, these are not intended to alter the intent of the decision contained in transcript.

[3] The following matters were raised by Prosegur in response to the application.

• It initially took issue with the validity of the application, but noted that this objection was dealt with in the amended application filed by the TWU on 7 April 2017.



• It claims question 8 is not expressed with enough certainty to enable employees to understand what is being asked of them in the ballot. However, the TWU indicated in response it was prepared to enter into discussions with Prosegur with the intention of reaching agreement about amended wording. The parties subsequently advised that an agreed position had been reached. Prosegur subsequently raised a further issue to do with question 2, and whether it proposed a course of action proscribed by s.415(1)(c).



• Prosegur sought to extend the notice period to be provided before any protected industrial action was taken from the minimum period of 3 working days to 5 working days. The TWU indicated in response, on a without prejudice basis, that it was prepared to agree to a 5 day notice period.



• The remaining objection advanced by Prosegur is that an order should not be made because the TWU is not “genuinely trying to reach agreement” as required by s.443(1)(b) of the Act.

[4] Mr Bill Baarini appeared on behalf of the TWU. Ms Simone Caylock of Rigby Cooke Lawyers was given permission to appear on behalf of Prosegur under s.596(2)(a) of the Act as the matter involves a degree of complexity and her involvement might enable it to be dealt with more efficiently.

The Legislation

“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.”

……………………..

437 Application for a protected action ballot order

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

…………………….

414 Notice requirements for industrial action

Notice requirements - employee claim action

(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.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot Order for the employee claim action specifies a longer period of notice for the purposes of this paragraph that period of notice.” 1

Consideration

[5] Section 443(1) states when the Fair Work Commission must make a protected action ballot Order. It indicates that the Commission must make a protected action ballot Order in relation to a proposed enterprise agreement if an application has been made under section 437 of the Act and the Commission is satisfied that each Applicant has been, and is, genuinely trying to reach agreement with the Employer of the employees who are to be balloted.

[6] I have already indicated that my understanding of the relevant authorities in regard to this requirement is that an Applicant can be said to be genuinely trying to reach agreement if the Applicant has approached the Employer and advised it of the general ambit for which the agreement is sought and the Employer has foreshadowed in response, even in the most general terms, its attitude towards the proposed agreement.

[7] I accept that this process in this case has played out over an extended period of time. The original log of claims, as I understand it, was served by the TWU on 16 May 2014 so it is now almost three years since that time. That initial position was obviously rejected by Prosegur. There have since been a series of further developments, including a proposed agreement being put to a vote of the employees by Prosegur, which was rejected in the subsequent ballot. There have obviously been a whole range of other things that have also occurred subsequent to that time.

[8] I understand the submissions that have been made that in more recent times there has perhaps been some uncertainty from Prosegur’s point of view as to what the position of the Union was at any one particular point in time. There seems to be a similar view on the Union’s part as well, and an acknowledgement that there has not been a meeting of the minds in regard to a clear understanding about each party’s respective position.

[9] However, I can at least identify from the evidence that in more recent times the witness statement of Mr Bainbridge – Robb appears to indicate that following a conference in the Commission in February of this year he had conveyed to him a position put by the Kensington road crew about what would be acceptable to them at that time in terms of an outcome from the negotiations. It was also quite clearly indicated in response by Mr Bainbridge – Robb that this proposal was not acceptable to the business.

[10] I am also mindful of the evidence of Mr Pavlou relating to the discussions that took place on 20 February 2017, and while there may have been a range of matters discussed at that time his evidence indicates that he conveyed a position to Mr Bainbridge – Robb at that time about what he believed would be a position that the employees would be prepared to accept.

[11] I also acknowledge that in all of this, while those positions may have been put, ultimately they have got to be put to a vote of employees before an agreement is ultimately concluded, so that in both cases neither the Kensington road crew or Mr Pavlou could be providing an absolute guarantee of a position that would be voted up in any subsequent ballot to approve the Agreement. However, in terms of what I am required to be satisfied about in the context of section 443(1)(b) of the Act, and whether I am satisfied that the Applicant for the present orders is genuinely trying to reach agreement, I am satisfied that the evidence indicates that this requirement has been met.

[12] I can indicate as well that in regard to the issue that has been raised about question 2, and whether it is an appropriate question to be put in the ballot, I think the views that I have already expressed in the exchange with Ms Caylock about the inclusion of that question properly continue to be the views that I would have in regard to any decision about that matter as well.

[13] Section 443 of the Act provides that I must make an Order if an application has been made under section 437 and the Commission is satisfied that the Applicant is genuinely trying to reach agreement. I am satisfied that the TWU is a bargaining representative of the employees sought to be covered by the proposed Agreement. I am also satisfied that the TWU is genuinely trying to reach agreement. The application also specifies the group of employees to be balloted and the questions to be put, including the nature of the proposed action. I am also satisfied that s.440 of the Act has been satisfied. I accordingly propose to make an Order in terms that reflect the draft Order that has now been agreed upon by the parties. It will also require, as agreed by the parties, that a notice period of 5 working days be provided prior to any protected industrial action being taken. That Order will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

B Baarini for the Transport Workers’ Union of Australia.

S Caylock for Prosegur Australia Pty Ltd.

Hearing details:

2017.

Melbourne:

May 5.

 1   Fair Work Act 2009 (Cth).

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