Transport Workers' Union of Australia v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia)
[2024] FWC 3222
•25 NOVEMBER 2024
| [2024] FWC 3222 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.229—Bargaining order
Transport Workers’ Union of Australia
v
Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia)
(ADM2024/11, B2024/1517)
| DEPUTY PRESIDENT LAKE | BRISBANE, 25 NOVEMBER 2024 |
Application for bargaining order – Application for interim orders – Interim orders not granted – Application for interim orders dismissed
On 20 November 2024, the Transport Workers’ Union of Australia (the TWU) made an application for bargaining orders and a related application for interim orders under s.589 of the Act. The matter concerns a proposed ballot of employees of Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia) (Veolia) in relation to a new enterprise agreement.
The interim orders sought from the TWU in their Form F1 are as follows:
1. Until the hearing and determination of the accompanying application for bargaining orders, or further order, the Respondent take no further steps under ss 180 and 181 of the Fair Work Act 2009 (Cth) (FW Act), or otherwise, to submit the proposed Veolia Brisbane & Gold Coast (Collection Services) Enterprise Agreement 2024 (proposed agreement) to employees proposed to be covered by it for approval.
2. Such further or other orders as the FWC considers appropriate.
I was allocated both applications on 21 November 2024. The TWU asked for an urgent hearing, as the ballot would be opening at 6:00am on Monday, 25 November 2024.
I listed the matter for hearing on 22 November 2024 to determine whether interim orders should be granted. The TWU was represented by Mr Robert Reed of Counsel. Veolia was represented by Ms Samantha Maddern from Mills Oakley. I granted leave for both parties to be represented under s.596 of the Act, as it is a complex procedural matter and there would be no unfairness to either party.
I determined that interim orders would not be granted. The substantive s.229 application will be listed for hearing at a later date. The application for the interim orders is dismissed. I delivered my decision ex tempore on 22 November 2024. These are the reasons for my decision.
Background
On 18 November 2024, the TWU sent Veolia a letter of concerns, arguing that Veolia was not meeting its good faith bargaining obligations under s.228(b) and (e) of the Act.[1]
Approximately two years ago, Veolia acquired the business of Suez. A key objective of Veolia in these negotiations was to develop one agreement where previously there had been three and to harmonise the pay and conditions across the workgroups. Former Suez employees will now be covered under the proposed Veolia Brisbane & Gold Coast (Collection Services) Enterprise Agreement 2024 (the proposed Agreement). Under the proposed Agreement, the former Suez employees will receive increases, however at a lesser rate than employees under older Veolia agreements – this is to assist in the achieving of parity in conditions and pay for the whole workforce. The former Suez employees are approximately one-third of the cohort of employees to be covered by the proposed Agreement.
The Respondent does not contest that the former Suez employees are treated differently to other employees under the proposed Agreement. Under the Suez Brisbane and Gold Coast C&I Agreement 2020 (the Suez Agreement), the former Suez employees receive a substantially higher rate of pay than the Veolia employees who are performing the same duties. Veolia has indicated that it intends to achieve pay parity between its workers and as such, the former Suez employees will receive lower pay increases than the other Veolia employees, until pay parity is achieved.
The parties have been bargaining for five months.
On 20 June 2024, the TWU submitted a draft log of claims to Veolia. The log of claims on 20 June 2024 includes:
4. No reductions in existing terms and conditions of employment including any custom and practice, and incorporation of the Waste Management Award 2020. The current agreements form the basis of the new EA document, with the agreement provisions reviewed and proposed changes agreed before alteration and tracked transparency.
…
13. Wage Industry – with Industry Rates of pay- with the Nudgee (Suez) Agreement rates, with suitable CPI increases applied from 1 July 2024 to compensate employees for significant losses when comparing Brisbane/ Gold Coast CPI increase of 18.5% whilst their Agreement increases totalled approx. 7.5%.[2]
On 25 October 2024, Veolia indicated the latest offer on wages and conditions to the TWU bargaining representative. TWU submits that the offer presented on 25 October 2024 created an “extremely unfair distribution of Wages and Conditions outcomes”.[3] They say that the former Suez employees would receive between $7,000 to $20,000.00 per annum less than the other Veolia employees.[4] Veolia’s external bargaining representative, Mr Ethan Callan, indicated on 25 October 2024 that Veolia was considering putting the offer to a vote.
The TWU’s bargaining representative responded by indicating that if the proposed Agreement were put to a vote, then the TWU would be immediately filing a s.240 application, followed by a scope order application to “scope out those who were intentionally included and severely adversely affected by the presented offer”.[5]
After further discussion between Veolia and the TWU, Mr Mark Dowley, State Manager of Transport for Veolia, indicated that the matter would not be put to a vote and the parties would continue to bargain.[6] Mr Dowley was not able to attend the hearing on 22 November 2024 as he was on an international flight at the time.
Mr Callan sent a copy of the draft agreement with tracked changes to the TWU for comments prior to the next bargaining meeting, which was scheduled for 7 November 2024.[7]
Between 25 October 2024 and 7 November 2024, Veolia held “toolbox meetings” in which they presented the packaged offer to employees to gain their views on the offer.[8] Prior to the meeting, the TWU bargaining representative, Mr Russell Vieritz, requested an updated claims tracker from Veolia. This was provided to Mr Vieritz by Mr Callan.
At the meeting on 7 November 2024, Veolia presented the draft agreement for the attendees to consider.[9] Mr Vieritz offered feedback on the draft agreement in relation to the legal indemnity clause.[10]
At the end of the meeting, Veolia presented a draft offer which they say contained concessions for the former Suez employees at Level 3 and 4, as it increased the one-off payment those employees were to receive from approximately 4% to 6.3% of the employees’ annual base rate of pay. Following the meeting, Veolia requested that its employer bargaining representatives stay behind to continue working on the draft agreement.[11] The TWU later commented on this:
In hindsight the company’s request (on the 7th November ) during the negotiations for all company bargaining representatives to remain back (on double time) to work on the draft document, indicated Veolia’s true intention was to deceive the TWU and all Bargaining Representatives, as the Vote access period and intention to ballot was announced just 2 Business days after that negotiation on the 12th of November.[12]
On 12 November 2024, Mr Callan emailed the TWU and the other employee bargaining representatives and advised that Veolia would be putting the proposed Agreement to a vote.
Mr Callan stated:
The agreement represents Veolia’s best offer, which is conditional on all proposed changes to the agreement being accepted.
It is our view that our employees should now be given an opportunity to vote for our offer.
Subject to any final feedback on the drafting, the following will be the voting timeline:
Step Date Commence access period 15 November 2024 Vote open and closes 25 November 2024 - 27 November 2024
Please provide your views by 5.00 pm, 14 November 2024. If I do not hear from you, then I will proceed to commence the access period for the agreement.[13]
Mr Vieritz responded on 13 November 2024, apparently rejecting the draft agreement and asking that bargaining recommence.[14] I have not been provided with a copy of Mr Vieritz’s email. On 14 November 2024, Veolia responded to Mr Vieritz indicating that it had considered his email and had decided to continue with the access period.[15]
The TWU alleged that Veolia had breached its good faith bargaining obligations, specifically in relation to disclosure of relevant information under s.228(b) and capricious and unfair conduct under s.228(e) of the Act.[16] The TWU requested that Veolia scope out the former Suez employees “on the basis that they have not been fairly chosen”.[17] On 15 November 2024, the TWU also filed a s.240 bargaining application in the Commission.
The TWU submits that the following conclusions can be drawn from Veolia’s conduct:
24. In light of the facts set out above, there is at least an arguable case that:
(a) The respondent has not disclosed relevant information about its intention to put the
proposed agreement to ballot in a timely manner.
(b) The respondent has not disclosed relevant information that it had reached a final
position, and the nature of that position, in a timely manner.
(c) The respondent, knowing of the applicant’s critical concerns about the disadvantaged industrial position of the new Veolia employees, and the applicant’s desire to alter the scope of the proposed agreement to exclude those employees, has acted unfairly, and contrary to the objectives of the FW Act by rushing to put the proposed agreement to ballot.
(d) The respondent, knowing of the matters in (c) above, has acted unfairly by attempting to thwart the applicant’s statutory right to make, and have determined,
an application for a scope order.
(e) The unfair conduct engaged in by the respondent has the effect of undermining
collective bargaining in this case.
(f) In the circumstances, the respondent has not met the good faith bargaining
requirements in s 228 (b) and (e) of the FW Act.
25. There is a serious issue to be tried as to those matters. Misleading conduct during
bargaining is prima facie unfair within the meaning of s 230 of the FW Act[18]
I note that the TWU has not applied for a scope order in the Commission to date.
Veolia denies that it has breached its good faith bargaining obligations, and points to the fact it consistently asked for feedback from the TWU, including on 12 November 2024 when it announced that it would be putting the proposed Agreement to a vote, it invited the TWU to provide feedback by close of business, 14 November 2024.[19] The TWU submitted during the hearing that this request for feedback was “illusory” as the access period had been announced for 15 November 2024, and if Veolia were to update the proposed Agreement, they could not have done so without restarting the access period, which they would have been unlikely to do.
Consideration
Section 589 of the Act provides that the Commission may make interim decisions.
589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a)on its own initiative; or
(b)on application.
(4) This section does not limit the FWC’s power to make decisions.
It is well established that s.589 of the Act does not provide an independent source of power to grant relief, the power to make interim orders is informed by the substantive provision under which the application is made. In Mayson v Mylan Health Pty Ltd and others[2020] FWC 1404 (“Mayson”), Deputy President Colman considered the application of s.589 generally:
[17] Section 589(2) states that the Commission ‘may make an interim decision in relation to a matter before it.’ It is not an independent source of power to issue interim orders, whether in the nature of interlocutory administrative injunctions or any other temporary decision. Absent a particular ‘matter before it’, the Commission has no power to do anything at all under s 589(2). To the extent that it might be contended that s 589(2) can be used in respect of any ‘dispute’ that might be referred to the Commission, s 595 makes clear that the Commission may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.’ Section 589(2) is not such a provision.
…
[24] Moreover, the Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires.
In Wills v Grant and the Government of New South Wales (“Wills”), the Full Bench of the Commission affirmed the reasoning Deputy President Colman above,[20] and stated:
Section 589 is in subdivision B of Division 3 of Part 5–1 of the FW Act which deals with the conduct of matters before the Commission. These provisions are procedural in nature in the sense that they facilitate the effective and efficient exercise of the Commission’s substantive powers. They are not remedial or beneficial provisions in the sense contended by the Appellant.[21]
In Wills, the Full Bench considered the power to grant interim orders in relation to a substantive anti-bullying application under s.789FC of the Act. The Full Bench dealt with the issue of whether the common law test for an interlocutory injunction should apply. The Full Bench agreed with the analysis of Deputy President Colman in Mayson, which also dealt with an anti-bullying application, where the Deputy President stated:
[18] The ‘matter’ now before the Commission, for the purpose of s 589(2), is an application made under s789FC. That application alleges that a worker has been bullied at work. It seeks an order under s 789FF to prevent a worker from being bullied by an individual or group. Any order I make in relation to this application will be an order under s 789FF. The relevant requirements of that section must be satisfied.
[19] Section 789FF confers jurisdiction on the Commission to make an anti-bullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need to make factual findings about what has occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of ‘bullied at work’ in s 789FD(1). This would require the Commission to reach a conclusion as to whether the impugned conduct was repeated and also unreasonable, that the conduct was towards a worker, and that it created a risk to health and safety.
(emphasis added)
In Wills, the Full Bench held as follows:
[46] The general approach reflected in the FW Act is to use express language to confer a function or authorise the exercise of a power. The FW Act is replete with proscriptive limitations on the Commission’s jurisdiction and upon the powers it may exercise. Sections 789FF and 595 serve to illustrate this point. These structural features, and the terms of s.789FF, tells against the construction advanced by the Appellant. The express terms of s.789FF operate to delineate the circumstances in which interim relief may be granted.
[47] It is also relevant to consider the consequences that might flow from the Appellant’s submission if we were to adopt it. Interpretation by reference to the consequences of adopting a particular construction is an incident of the purposive approach to interpretation.
[48] The Appellant submitted that if its construction of s.589(2) is not accepted, the result is that the Commission has no effective capacity to grant interim relief in respect of anti-bullying matters in order to preserve the subject matter of the application before it, with the result that the purpose of Part 6-4B may readily be defeated (for example, by dismissing an employee) before the final hearing. We do not agree. The Appellant’s submission proceeds on the apparent assumption that, at an interlocutory hearing in which an applicant for an anti-bullying order seeks an interim decision pursuant to s.589(2), it would not be possible for the Commission to reach the requisite state of satisfaction concerning the matters specified in s.789FF(1)(b)(i) and (ii). That assumption is not valid. What provisions of this nature require is ‘an opinion or satisfaction formed reasonably upon the material before the decision-maker’. We can see no reason why, for the purpose of an interlocutory hearing, it would be impossible for an applicant to put before the Commission sufficient material for the Commission to reach the requisite state of satisfaction under s.789FF(1)(b)(i) and (ii) at that time. In this case in particular, it seems to us that the primary facts of the Appellant’s case that the conduct of the disciplinary process to date has been unreasonable can for the most part be established on the basis of the written communications passing between the parties, with the question of whether the Commission may be satisfied as to the 789FF(1)(b)(i) and (ii) matters turning on the proper inferences to be drawn from those primary facts. Once the requisite state of satisfaction has been reached, the Commission has a wide discretion under s.789FF(1) as to the making of appropriate interim orders to remain in place pending the final hearing and determination of the application.
(emphasis added, citations omitted)
Noting that this matter involves a s.229 application, rather than a s.789FC application, and noting that there is some divergence in single Member decisions of the Commission in relation to interim orders under s.229 of the Act, I invited the parties to make submissions during the hearing on which test they say applies.
Specifically, I was interested in submissions on which one of two alternative tests apply. Either it is the common law test for an interlocutory injunction of a “serious issue with a reasonably arguable case is to be determined” and the balance of convenience must favour the making of the order. Alternatively, the Commission must have “an opinion or satisfaction formed reasonably upon the material before the decision-maker”, that is, the Commission must be satisfied on the material before it that the good faith bargaining requirements have not been met.
The TWU submitted that the common law test for an interlocutory injunction applies, citing the Full Bench decision in Health Services Union v Victorian Hospitals’ Industrial Association [2012] FWAFB 2901 (“HSU Decision”). Veolia submitted that the Commission must reach a state of satisfaction that the good faith bargaining requirements have not been met, submitting that the test in Wills applies equally here.
In the HSU Decision, the Full Bench of Fair Work Australia heard an appeal in relation an application for an interim order preventing the employer from putting the draft agreement to a vote under ss.180 and 181 of the Act, pending determination of the s.229 application. The Full Bench noted that Commissioner Cribb at first instance had applied the test of whether there was a serious issue to be tried and whether the balance of convenience favoured the granting of the interim order sought. The Full Bench stated briefly: “No issue was taken with this approach in the appeal and it is consistent with authority.”[22] The Full Bench went on to explain the application of the test:
The approach to a serious issue to be tried for the purpose of interim relief does not require the HSU to show that it is more probable than not that its substantive application would succeed; it is to show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the determination of its substantive application.[23]
I note that the Full Bench does not consider the issue of the correct test to be applied in detail in the HSU Decision. It seems to have been assumed that the common law test for an interlocutory injunction would apply.
In Application by Australian Municipal, Administrative, Clerical and Services Union (052V) [2022] FWC 1918, Deputy President Anderson held in relation to the correct test in to be applied for an interim order in relation to a s.229 application:
[5] The principles governing the making of interim orders are well established. For interim orders to be granted, the applicant bears the onus of satisfying the Commission that a serious issue with a reasonably arguable case is to be determined; that it may suffer prejudice that cannot be adequately remedied if the interim order is not granted; and that the balance of convenience favours the orders sought. The required assessment by the Commission will necessarily be of a preliminary nature only.
(citations omitted)
In Application by United Workers’ Union (108V) [2024] FWC 2209, Deputy President O’Neill stated in relation to the test to be applied for an application for interim relief connected to a s.229 application:
[82] The parties disagree on the approach required in considering whether to make interim orders. The UWU contends that the Commission must be satisfied that there is a serious issue to be tried and that the balance of convenience favours the making of the interim orders. It relies on the Full Bench decision in Health Services Union v Victorian Hospitals’ Industrial Association. Quantem, relying on the Full Bench decision in Wills v Marley & Others, contends that the Commission is only empowered to make an interim bargaining order if it reaches a state of satisfaction regarding the requirements of s.230 of the Fair Work Act 2009(Cth) (the Act), particularly s.230(1)(c), s.230(2) and s.230(3).
…
[86] As described by the Full Bench in Wills v Marley, the requisite standard is ‘an opinion or satisfaction formed reasonably upon the material before the decision-maker’.
In Application by Shop, Distributive and Allied Employees Association (006N) [2024] FWC 1225, Deputy President Bell expressed the view:
While that material would have been sufficient to satisfy me of a ‘prima facie case’ or ‘serious question to be tried’ for an interim order, I indicated to the parties that my view was that the tests for an injunction did not apply to an interim order for bargaining orders. I expressed my view, which I hold, that the Commission must actually be “satisfied” of the matters in s 230 before an interim order could issue. As the issue was ultimately not canvassed in detail, it is sufficient for me to record that I share the tentative view expressed by Colman DP in The Trustee For P&J Cunningham Family Trust t/a Health Select Group v Victorian Ambulance Union Incorporated[2020] FWC 142at [25], and consider the principles are analogous to the Full Bench’s consideration of an interim order in Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another [2020] FWCFB 4514. Succinctly stated, the requirement that the Commission “is” satisfied in s 230(1)(c) and the matters that the Commission “must” in “all” cases be “satisfied” about required by s230(3) (which includes having not met the good faith bargaining requirements) precludes an interim order being made on the basis of a serious question or prima facie case and the balance of convenience. Rather, actual satisfaction of the statutory prerequisites must be held.[24]
Section 230 of the Act provides when the Commission may make a bargaining order. Particularly, s.230(3) states:
(3) The FWC must in all cases be satisfied:
(a) that:
(i)one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(c)that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.
(emphasis added)
Given s.230(3) of the Act requires the Commission to be satisfied that “one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements” then in my view, the correct test to be applied in relation to the application for an interim order is that Commission must be satisfied on the material before it that the good faith bargaining requirements have not been met, following the Wills decision.
The phrasing of s.230 and s.789FF are similar in that they both require the Commission to be satisfied that a set of factual circumstances exist before an order can be made. I note the Full Bench in Wills stated that: “What provisions of this nature require is ‘an opinion or satisfaction formed reasonably upon the material before the decision-maker’” In the circumstances, this means that an interim order cannot be made unless the Commission is satisfied, reasonably, on the material before it that the good faith bargaining requirements have not been met.
The TWU submitted that the Wills test should not be followed, as there needs to have been a substantive hearing on the merits before the Commission can be satisfied. I note a similar argument was made in Wills and was rejected by the Full Bench.[25]
However, I am also satisfied, for reasons set out below, that if the test of “serious issue with a reasonably arguable case is to be determined” and balance of convenience were applied, then the Application would also fail.
I note that in Application by Australian Municipal, Administrative, Clerical and Services Union (052V) [2022] FWC 1918, Deputy President Anderson stated, in relation to an application for interim orders restraining the employer from putting the agreement to a ballot:
[9] Firstly, I am not satisfied that the particular interim orders sought are within power in circumstances where the Commission has before it applications under s 229 for bargaining orders under s 230. These provisions of the FW Act do not expressly provide for interim relief. Powers to make interim orders under s 589 of the FW Act are not at large. As noted by a full bench in Wills v Grant and the Government of New South Wales the power to make interim orders under s 589 is not an independent source of power to injunct conduct. Whilst there is arguably a link between the commissioning by Utilities Management of the ballot and its good faith bargaining obligations, I am not satisfied that the conduct of ballots are “matters” before the Commission under s 229 such that the power in s 589 can be invoked. Section 229 applications deal with conduct in bargaining. It is the alleged breach of good faith bargaining obligations which are the “matters” before the Commission.
(citations omitted)
Given I am not satisfied that application for interim orders meets the requisite standard, it is not necessary for me to form a view on whether the Act allows for interim orders which restrain the employer from putting the Agreement to a ballot.
Consideration of whether Good Faith Bargaining Obligations have not been met
The TWU contends that Veolia should have disclosed its intention to put the proposed Agreement to a vote.[26] They allege that failure to disclose this was a breach of s.228(b) and s.228(e) of the Act. I am not satisfied that Veolia has breached s.228(b) or s.228(e) of the Act.
I am not convinced that the “information” which the TWU points to, being the knowledge that the employer would be putting the Agreement to a vote, is the kind of relevant information covered under s.228(b). The exclusion in s.228(b) of confidential or commercially sensitive information implies that information under that section is information to do with the employer’s business, rather than information about the employer’s negotiation strategies.
Deputy President Asbury (now Vice President) thoroughly explores how ‘capricious or unfair conduct that undermines freedom of association or collective bargaining’ is to be assessed when determining bargaining orders in Construction, Forestry and Maritime Employees Union v Oaky Creek Coal Pty Ltd[2017] FWC 5380 at 165:
“In CFMEU v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal I endeavoured to set out some principles with respect to the application of the legislative provisions in relation to whether bargaining representatives have met good faith bargaining requirements in s 228(1)(e) of the Act, which can be summarised as follows:
· Section 228(1)(e) of the Act is directed to the process of bargaining and does not encompass conduct that may be capricious and unfair, but which is not directed to the bargaining process, or does not have (or is unlikely to have) an impact on the bargaining process. This is regardless of whether the conduct is capricious or unfair on an objective or a subjective basis
· There are two limbs to the good faith bargaining requirement in section 228(1)(e) being
a) That the bargaining representative has not refrained from conduct which is capricious or unfair or that the bargaining representative has engaged in conduct that is capricious or unfair; and
b) That conduct undermines freedom of association, or collective bargaining or both.
· Capricious conduct is conduct which is unaccountable, whimsical, irregular or unpredictable or conduct that is not valid, defensible or well founded.
· Conduct that is unfair is conduct that is not equitable or honest or not impartial or according to the rules.
· To undermine collective bargaining or freedom of association means to injure or damage including by secret or insidious means; (In relation to this point, I accept the submission of the CFMEU in the present case that it is not necessary that undermining be insidious or secret).
· It does not follow that because conduct adversely impacts on the position of a bargaining representative it will be conduct that undermines that position.
· While intent may be relevant to whether there has been a breach of good faith bargaining requirements, it is not determinative and there is no requirement to establish intent in order to find a breach.
· Fairness cuts both ways and the interests of employers and employees must be balanced. The good faith bargaining requirements do not require that an employer can take no action to protect its interests or to advance its position whilst bargaining is underway.
· The terms of s 231(2)(c) and (d) of the Act which provides that the Commission may make orders do not operate unless and until the Commission is positively satisfied to the required standard of proof that a bargaining representative is not complying with a good faith bargaining requirement; and
· Fairness in a given situation depends on the circumstances and the context in which it is assessed. That context includes:
- that the purpose of employees taking protected industrial action or is that it will cause loss and damage to an employer which will result in the employer changing or compromising its bargaining position.
- That the purpose of an employer in taking employer response action by locking out employees is to cause employees to compromise or change their bargaining position due to loss of wages.
- Parties are entitled to engage in hard bargaining; and
- A bargaining order cannot compel a party to alter its bargaining position.
(references omitted)
In Transport Workers’ Union v Transit Systems[2016] FWCFB 997 the Full Bench noted the following:
“[16] That is not to say that issues about the timing or conduct of a vote may not impinge upon the bargaining process. If, for example, an employer seeks to put an agreement to a vote without having participated in any meetings with employee bargaining representatives and/or without having responded to or genuinely considered proposals advanced by employee bargaining representatives, that might ground a finding that the good faith bargaining requirements had not been met and might justify the making of a bargaining order restraining the conduct of the vote until those steps had been taken (see, for example, CEPU v Contact Electrical Pty Ltd). However, in this case the TWU’s concern about the timing of the ballot during school holidays was not tangibly connected with the bargaining process, since it would (presumably) equally have arisen even if there was no complaint about the bargaining process at all. For that reason, we do not consider it was relevant to the consideration of whether the good faith bargaining requirements have been met.”
(emphasis added)
In Construction, Forestry, Mining and Energy Union (CFMEU) (Mining and Energy Division) v Tahmoor Coal Pty Ltd [2010] FWAFB 3510, the Full Bench rejected the argument that the employer’s conduct in putting its proposal to a vote breached the good faith bargaining obligations:
“[30] We deal now with the ballot of employees. Although there may be circumstances in which the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements, it will not always be so. There is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot. In this case the Commissioner and the parties all referred to the notion of “impasse” as the touchstone by which to judge whether an employer who puts a proposed agreement to a ballot without the agreement of the other bargaining agent thereby fails to observe the good faith bargaining requirements. There was some debate about whether “impasse” had been reached at the relevant time. The Commissioner found that “negotiations for an enterprise agreement have reached a stalemate or using Tahmoor’s words: “an impasse”. Another way of approaching the matter, as the CFMEU intimated in its submissions, might be to ask whether there had been a reasonable opportunity to discuss Tahmoor’s latest proposal. Yet another formulation might be to ask whether negotiations had reached such a stage that the employer was entitled to put its proposal to a ballot in order to see if progress could be made. However it is put, we are satisfied that in arranging to put its proposed agreement to the employees in a ballot, Tahmoor was not acting capriciously or unfairly in the circumstances prevailing at the time.”
Veolia sought feedback from the TWU regarding the proposed Agreement on several occasions, including on 12 November 2024. While I agree that the TWU were given a short period to provide feedback, I am not satisfied by the TWU’s argument that the request for feedback was “illusory”. The TWU were given two days to provide feedback prior to the access period commencing. Mr Vieritz of the TWU did in fact respond to Veolia in this period. I have not been given a copy of Mr Vieritz’s email of 13 November 2024 so I cannot determine whether that email was providing feedback on the Agreement or was merely a request for bargaining to recommence.
Further, I note that the TWU had been told by Mr Callan on 25 October 2024 that Veolia was considering putting the Agreement to a vote. The TWU claims that Veolia later “rescinded” the claim that the Agreement would be put to a vote.[27] I note that the TWU did not lead evidence of Mr Vieritz, who was present during the meeting on 25 October 2024. However, Mr Callan, who gave evidence during the hearing, indicated that Veolia had merely stated that they would not that Veolia would “not go to a vote at that time and that we would continue bargaining”.[28]
Additionally, the TWU admitted that “with hindsight” it should have known that the Agreement would be put to a vote following the meeting on 7 November 2024.[29]
I am not satisfied that the TWU’s claims that they were misled or blindsided by Veolia have been made out.
The TWU also argued that Veolia has breached its good faith bargaining obligations by effectively preventing the TWU from applying for a scope order in the Commission.
I note that Veolia was aware of the TWU’s plans to apply for a scope order from at least 25 October 2024. Mr Vieritz had indicated on 25 October 2024 that the TWU would be applying for a scope order if the Agreement was put to a vote. To date, the TWU has not applied for a scope order.
The TWU has argued, rightly in my view, that the Act generally promotes that parties resolve disputes informally first before proceeding to litigation. The TWU submits that they should not be penalised for failing to make a scope order right away. While I agree that the Act promotes informal means of resolving disputes, I am not satisfied that Veolia has “acted unfairly by attempting to thwart the Applicant’s statutory right to make, and have determined, an application for a scope order”.[30] Veolia has argued that the TWU should not be penalised for making a scope order earlier, but neither should they be rewarded for it. The scope order application was for the TWU to agitate. Veolia was under no obligation to ensure that the TWU had filed an application for a scope order before they commenced the access period.
Balance of convenience
While I consider that the common law test for an interlocutory injunction does not apply, I will briefly consider the application of that test.
I accept that the Application involves a serious issue to be considered with a reasonably arguable case, as Veolia gave the TWU limited time to respond to the proposed Agreement before the access period was to commence. Additionally, the issue involves the wages and conditions of approximately one-third of the cohort of employees who would be covered by the Agreement, so I am satisfied that the issue is serious.
However, I do not consider that the balance of convenience favours the granting of the interim order.
The TWU has other opportunities to challenge the proposed Agreement. The TWU has stated that the former Suez employees are a minority voting bloc,[31] and therefore if the Agreement goes to a vote, a majority employees are likely to approve the Agreement. There are other ways for the TWU to challenge the Agreement without making an interim order. I note that the TWU has already commenced a “no” campaign amongst its members. If the Agreement comes before the Commission for approval, the TWU could challenge the Agreement on the basis that the group of employees covered was not fairly chosen, an argument which the TWU has already alluded to.[32]
The TWU has argued that the significant potential disadvantage to any former Suez employees outweighs any inconvenience to the employer in postponing the vote,[33] as the parties have only been bargaining for five months, which the TWU says is “not an exorbitant length of time”.
I note that a balancing consideration in favour of granting the interim order is that if the TWU were able to obtain a scope order, they could subsequently challenge the Agreement’s approval under s.187(2) of the Act.
However, on the whole, the balance of convenience does not favour granting the interim order.
Other matters
Veolia raised two additional matters in their submissions.
Firstly, Veolia argues that letter of 18 November 2024 is not a valid notice of concerns for the purposes of s.229(4)(b) of the Act.[34] I consider that it would be more appropriate to hear this argument when considering the substantive s.229 application, rather than the Application for interim orders. Additionally, I note that s.229(5) of the Act empowers the Commission to dispense with the notice requirements if it is appropriate to do so. Accordingly, I do not consider written notice to be a pre-requisite for the granting of an interim order.
Secondly, Veolia has raised a technical argument, claiming that the Commission does not have power to make the orders sought by the TWU.[35] I note that there was a slight discrepancy in the orders sought by the TWU in their Form F1 application and their Form F32 Application. In their Form F1 application, they asked for orders preventing Veolia from taking further steps under ss. 180 and 181 of the Act. In their Form F32 Application, the TWU referred to ss.181 and 182 of the Act. Veolia argued that the Commission has no power to prevent Veolia from taking “further steps” under ss.181 and 182 of the Act, as Veolia has already taken all the required steps to commence the voting process.[36]
Veolia also argued that “The FWC cannot issue an order the effect of which is to require an employee to not approve an enterprise agreement”.[37]
I reject Veolia’s submissions in this regard. The reference to ss.181 and 182 on the Form F32 appears to be an error. The Form F1 has the correct reference to ss.180 and 181.
I reject the argument that there are “no further steps to take”. The agreement has not yet actually been put to the employees for a vote and in that sense, the employees have not yet been requested to approve the Agreement. The vote is to be conducted by SMS voting. I confirmed that the Respondent has the power to cancel the SMS voting. I consider that the order the TWU is seeking is for the SMS voting to be cancelled. This Commission has power to grant this order, but for the reasons outlined above, I have declined to do so.
Conclusion
As I am not satisfied that Veolia has breached its good faith bargaining obligations, I cannot make the interim order sought by the TWU. The Application for interim orders under s.589 is dismissed. The substantive s.229 application will be programmed for a hearing at a later date. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
R Reed of Counsel for the Applicant
S Maddern of Mills Oakley for the Respondent
Hearing details:
22 November 2024.
Brisbane.
Via Microsoft Teams.
[1] Annexure 1A to TWU Form F1 application
[2] Annexure 1 to TWU Form F1 application
[3] Annexure 3 to TWU Form F32 Application.
[4] Annexure 3 to TWU Form F32 Application
[5] Annexure 3 to TWU Form F32 Application
[6] Ethan Callan Witness Statement [10]
[7] Ibid [11]
[8] Ibid [12]
[9] Ibid [15]
[10] Ibid [15]
[11] Annexure 3 to TWU Form F32 Application
[12] Ibid
[13] Annexure EC-2 to Ethan Callan Witness Statement
[14] Respondent Submissions 3(g)
[15] Ethan Callan Witness Statement [19]
[16] Annexure 3 to TWU Form F32 Application
[17] Letter from Richard Olsen to Mark Dowley dated 18 November 2024
[18] TWU Submissions [24]-[25]
[19] Annexure EC-4 to Ethan Callan Witness Statement
[20] Wills v Grant and the Government of New South Wales[2020] FWCFB 4514 at [34]
[21] Ibid at [53]
[22] Health Services Union v Victorian Hospitals’ Industrial Association [2012] FWAFB 2901 at [5]
[23] Ibid at [9]
[24] Application by Shop, Distributive and Allied Employees Association (006N) [2024] FWC 1225 at [5]
[25] Wills v Grant and the Government of New South Wales[2020] FWCFB 4514 at [48]
[26] TWU Submissions [24]
[27] Form F32, page 7 [20].
[28] Ethan Callan Witness Statement [10]
[29] Annexure 3 to TWU Form F1 Application
[30] Applicant Submissions [24]
[31] Form F1 Application, page 7
[32] Annexure 1A to TWU Form 1 Application
[33] Form F1 Application, page 7
[34] Respondent Submissions [5], [7].
[35] Ibid [9].
[36] Ibid [11].
[37] Ibid [12].
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