Transport Workers' Union of Australia v Sims Group Australia Holdings Limited T/A Sims Metal
[2023] FWC 3184
•1 DECEMBER 2023
| [2023] FWC 3184 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Transport Workers' Union of Australia
v
Sims Group Australia Holdings Limited T/A Sims Metal
(B2023/1309)
and
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Sims Group Australia Holdings Limited T/A Sims Metal
(B2023/1314)
| COMMISSIONER WILSON | MELBOURNE, 1 DECEMBER 2023 |
Protected action ballot order of employees of Sims Group Australia Holdings Limited T/A Sims Metal
The matters before me are applications by the Transport Workers’ Union of Australia (TWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for protected action ballot orders (PABO) in relation to employees of Sims Group Australia Holdings Limited T/A Sims Metal whose employment is presently covered by the Sims Metal SA Collective Agreement 2020[1] (the Agreement). The nominal expiry date of the Agreement is 30 June 2023. The applications are made pursuant to Part 3 – 3 of the Fair Work Act 2009 (the Act) and are now consented to by Sims Metal.
The application in B2023/1309 was made by the TWU pursuant to s.437 of the Act on Tuesday 28 November 2023 at 8:37 PM AEDT and the application in B2023/1314 was made by the AMWU pursuant to the same section on Wednesday 29 November 2023 at 1:07 PM AEDT.
The applications originally named the Respondent’s legal entity as “Sims Limited” and its trading name as “Sims Metal Management Limited”. The TWU later amended its application to refer to the Respondent as “Sims Group Australia Holdings Limited T/A Sims Metal”. The Respondent consents to the amendment of each application and orders will be issued by me making the change.
As the currently applicable Agreement covers each of the TWU and the AMWU and bargaining for a replacement agreement has involved each union in single bargaining meetings and the questions sought for inclusion in the PABO are the same I considered it appropriate to hear and determine the two applications jointly.
On 29 November 2023 at 12:49 AM, that is before the application in B2023/1314 was lodged, and after it had after by notified by the Fair Work Commission (the Commission) of the application in B2023/1309, the Respondent advised that it objected to the making of the application on the ground that Question 2 as proposed by the Applicants lacked “sufficient clarity” and raised “potentially unknown safety concerns”. These objections have since been withdrawn.
As a result of the Respondent’s initial objection matter B2023/1309 was assigned to me for hearing and determination on Thursday 30 November 2023 at 2:10 PM AEDT and matter B2023/1314 at 2.20 PM AEDT. A hearing was held by me on Friday 1 December 2023 commencing at 3:00 PM AEDT at which Mr William Cheffirs, Industrial Officer, appeared for the TWU and Mr Paul Donnell, State Organiser, appeared for the AMWU. Mr Damon Hodges, Employee Relations Manager, APAC, appeared for Sims Metal. Prior to the hearing each party was directed to file and serve any additional written material in support of their case by no later than Friday 1 December at 12.00 PM AEDT.
Section 441 of the Act provides that the Commission must, as far as practicable determine an application for a protected action ballot order within 2 working days after the application is made. However as a result of the initial objections made by Sims Metal and the need to afford procedural fairness to all concerned in relation to those matters the TWU application has not been decided within the indicated timeframe. The Commission’s obligation to extend procedural fairness to a party extends, in the absence of any express provision to the contrary, to the exercise of the Commission’s powers such as those set out in the Act’s protected action ballot provisions.[2]
The TWU and AMWU seek to ballot all employees of Sims Metal who are members of the unions and will be covered by the proposed enterprise agreement, being a replacement for the Sims Metal SA Collective Agreement 2020 and for whom the Applicants are their bargaining representative. The material filed in this application by the TWU and AMWU asserts that each is a bargaining representative for the purposes of s.176(1) of the Act.
As a result of the Respondent’s objections, the TWU and AMWU have agreed to remove Question 2 from the orders they each sought from the Commission and the Respondent now consents to the making of the PABO’s. That question as originally drafted sought authorisation of industrial action in the form of an “unlimited number of indefinite partial work bans”. The Applicants now propose 6 separate questions with a short preamble to which respondent employees will need to answer with a ‘yes’ or ‘no’ response to each question. The questions and preamble proposed to be put are as follows:
“In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:
Question 1
An unlimited number of indefinite or periodic 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 4 hours?
(Yes/No)Question 4
An unlimited number of stoppages of work for 12 hours?
(Yes/No)Question 5
An unlimited number of stoppages of work for 24 hours?
(Yes/No)Question 6
An unlimited number of indefinite or periodic work-to-rule actions?
(Yes/No)”
In considering this application I must apply sections 437 and 443 of the Act which provide:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1)A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2)Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a cooperative workplace agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note:For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
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; and
(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note:The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
“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;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(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.
(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 or 120 hours (whichever is applicable), 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.”
To begin, I am satisfied that the applications have been made in accordance with s.437(1) of the Act. I am also satisfied that the provisions of s.437(3)(a) and (c) have been met which require specification of the group to be balloted and the name of the ballot agent. I am further satisfied and that all other relevant provisions of s.437 have been met.
It is well settled that the Commission’s power to make a PABO under s.443 of the Act is not discretionary in nature with s.443(1) imposing “a duty on the Commission to make an order if two conditions have been met: first (in paragraph (a)), that an application for such an order has been made under s.437 and, second (in paragraph (b)), that the Commission is satisfied that each applicant for an order has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted”.[3]
In relation to the requirement in s.443(1)(b), dealing with the matter of the Applicants genuinely trying to reach an agreement with the employer of the employees who are to be balloted I note there was no objection by Sims Metal to such a finding.
An applicant for a PABO carries the evidential onus of establishing that they have been and are genuinely trying to reach an agreement.[4] The requirement in s.437(1)(b) for the Commission to be satisfied that “each applicant has been, and is, genuinely trying to reach agreement” invites a temporal consideration: in order to be so satisfied the Commission must consider an applicant’s conduct not only at the time of the Commission’s decision but also at the date of application for the PABO.[5]
Determination of whether an applicant has been genuinely trying to reach agreement “involves a finding of fact applied by reference to the circumstances of the particular negotiations”. While all of the circumstances of the case require being considered, which frequently requires consideration be given to the extent of progress in negotiations and the steps taken in order to try and reach an agreement, it is ultimately the test in s.443 that must be applied. There will be consideration given to the extent of progress in negotiations and the steps taken in order to try and reach an agreement [6]
In forming my views on the subject I take into account that the Applicants submit they have been and are genuinely trying to reach an agreement, noting that bargaining commenced on 8 May 2023 when a log of claims was served and that there have been 9 bargaining meetings between that date and 22 November 2023. The Applicants also note that the Respondent served its log of claims on bargaining representatives on 26 May 2023. The Applicants also submit they remains ready, willing, and able to discuss claims with Sims Metal as well as consider any proposal or counter proposal it puts. Material provided by the TWU as part of its submissions confirm that bargaining is progressing and that further bargaining is scheduled.
As a consequence of these matters I am satisfied that the Applicants have been and are genuinely trying to reach an agreement with Sims Metal, being the employer of the employees who are to be balloted.
I am thus satisfied that that the provisions of s.443(1)(a) and (b) have been complied with. I must therefore make a protected action ballot order, as sought by the TWU and the AMWU. My order will be issued shortly.
In relation to the conduct of the ballot:
B2023/1309 – Application by the TWU – the ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is Friday 15 December 2023. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
- B2023/1314 – Application by the AMWU – the ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 30 working days after the making of the Commission’s Order, namely Wednesday 17 January 2024.[7] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
Orders consistent with this determination have been separately issued in PR768910 (B2023/1309, TWU) and PR768911 (B2023/1314, AMWU).
These matters will also be the subject of a compulsory conciliation conference before me pursuant to s.448A. An Order, Directions, and a Notice of Listing for that purpose will be issued separately to this decision.
COMMISSIONER
Appearances:
Mr W. Cheffirs for the TWU
Mr P. Donnell for the AMWU
Mr D. Hodges for the Respondent
Hearing details:
Melbourne (via video conference);
1 December;
2023.
[1] AE514349.
[2] CEPU v Abigroup Contractors Pty Ltd [2013] FCAFC 148, [118] – [119], per Katzmann and Rangiah JJ, see also [46] – [48] and [55], per Buchanan J.
[3] National Tertiary Education Union v Curtin University[2022] FWCFB 204, [37], see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (NSW) Pty. Ltd[2023] FWCFB 132, [52].
[4] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Kraft Foods Limited[2010] FWA 4404, [34].
[5] Coles Supermarkets (Australia) Pty Ltd v The Australasian Meat Industry Employees Union[2015] FWCFB 379, [44] – [46].
[6] Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368, [31] – [32]; see also Esso Australia Pty Ltd v AMWU, CEPU) and AWU [2015] FWCFB 210, [35].
[7] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.
Printed by authority of the Commonwealth Government Printer
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