Transport Workers' Union of Australia v Remondis Australia Pty Ltd

[2017] FWC 3357

[2017] FWC 3357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v
Remondis Australia Pty Ltd
(B2017/498)

COMMISSIONER CAMBRIDGE SYDNEY, 23 JUNE 2017

Proposed protected action ballot of employees of Remondis Australia Pty Ltd.

[1] On 20 June 2017, the Transport Workers’ Union of Australia (TWU), made an application for a protected action ballot Order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the TWU who are employees of Remondis Australia Pty Ltd (the employer) whose employment is to be regulated by a proposed agreement to replace the Remondis Australia Sunshine Coast Waste Collections Greenfields Agreement 2014-2017.

[2] The application seeks a ballot of employees of the employer who are members of the TWU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Craig Williams (the Statement) dated 19 June 2017. In summary, the Statutory Declaration provided information about events involving attempts made by the TWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 20 June 2017, advising that the employer opposed the application for a protected action ballot Order. The application was listed for Hearing before the Commission in Sydney with a video link to Brisbane on 23 June 2017, at which time the following appearances were recorded:

Ms M Cerrato appeared for the TWU;

Mr D Williams of Minter Ellison appeared for the employer.

[4] The Commission granted permission for the employer to be represented by lawyers or paid agents over the objections of the TWU. The Commission was satisfied that the requirements of s. 596 of the Act were met because certain complexity was identified and the assistance of lawyers or paid agents would enable the matter to be dealt with more efficiently having regard for the complexity of the matter.

[5] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“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.

(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.”

[6] In this instance, the employer opposed the application essentially upon the basis that it was asserted to be premature. The employer sought to rely upon evidence of the history of bargaining negotiations involving meetings held on 8 and 9 June 2017, and a further meeting anticipated for 23 June 2017, as establishing basis upon which the Commission should conclude that the TWU was not genuinely trying to reach an agreement with the employer.

[7] Consequently, the employer submitted that the Commission could not be satisfied that the requirements of subsection 443 (1) (b) of the Act had been met. The employer contended that the TWU was not genuinely trying to reach agreement with the employer and it urged that the application be dismissed accordingly.

[8] In the event that the Commission granted the application, the employer also provided evidence upon which it sought to have the written period of notice for the taking of protected industrial action extended. In this regard the employer asserted that exceptional circumstances justified an extension of the period of written notice to a period of five working days. In summary, it was asserted that the evidence established that exceptional circumstances existed because of certain potential impacts to the public that may arise in respect to failed or delayed garbage collection particularly in respect to putrescible waste. The employer provided evidence of potential difficulties that it said may arise because it was the only authorised provider of putrescible and public domestic waste collection services in the Sunshine Coast Regional Council Area. In this regard, evidence of the particular climatic circumstances of the Sunshine Coast Regional Council Area was said to contribute to the existence of exceptional circumstances.

[9] Having considered the evidence and the competing submissions, I have not been persuaded that the TWU has not been genuinely trying to reach an agreement with the employer. The TWU sent communication to the employer on 10 February 2017, requesting the commencement of negotiations for a new enterprise agreement, and foreshadowing the provision of a log of claims which was subsequently provided. In March 2017, the employer provided the TWU with a draft enterprise agreement document which set out, inter alia, certain wage outcomes during an anticipated period of operation of four years. Although the enterprise agreement negotiations have not been extensive or prolonged, the respective positions of the Parties have been clearly articulated. In such circumstances I am unable to find that the TWU has not been genuinely trying to reach an agreement with the employer.

[10] The bargaining is clearly unfinished, but it has undeniably involved the genuine pursuit of a replacement enterprise agreement. I can identify no basis upon which to deny the TWU the opportunity to seek to ultimately engage in protected industrial action as part of the well understood legislative scheme upon which the enterprise bargaining regime has been established. It may be observed that this application has been made at a fairly early stage of the enterprise bargaining process. However, as is frequently the case, during the period of time before which the protected action ballot might conclude the Parties may be able to successfully advance the enterprise bargaining to a satisfactory conclusion.

[11] In respect to the extension sought by the employer for the notification period for the taking of any protected industrial action I have not been persuaded that the evidence has established exceptional circumstances as required by subsection 443 (5) of the Act. The potential for particularly adverse public impacts to be caused by any cessation or delay to garbage collection, even in a warm locale, would be a circumstance that would be likely to arise in respect of numerous waste collection operations around Australia.

[12] Further, potential issues that might arise in respect to the employer being the sole provider of putrescible waste and public domestic waste collection services in the Sunshine Coast Regional Council Area could and should be addressed by way of contingency planning involving, inter alia, the potential sub-contracting of any critical services to other waste management operators. Such contingency planning would be able to be undertaken during the 25 working days period before which any protected action ballot is to be finalised. Further, in the event that any contingency planning was ultimately ineffective, and significant issues of public health or safety were to arise, the employer would be able to make an appropriate application under s. 424 of the Act.

[13] In summary, I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[14] Therefore, pursuant to subsection 443 (1) of the Act, the Commission must make a protected action ballot Order. The Order shall be made in the terms as broadly sought by the TWU. Accordingly an Order [PR593992] is issued separately.

COMMISSIONER

Appearances:

Ms M Cerrato appearedfor the Transport Workers’ Union of Australia.

Mr D Williams of Minter Ellison lawyersappeared for the employer.

Hearing details:

2017.

Sydney and Brisbane (video hearing):

June, 23

Printed by authority of the Commonwealth Government Printer

<Price code A, PR593990>