Transport Workers' Union of Australia v Veolia Recycling & Recovery Pty Ltd

[2023] FWC 2227

[2023] FWC 2227

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Veolia Recycling & Recovery Pty Ltd

(B2023/918)

COMMISSIONER MCKINNON SYDNEY, 5 SEPTEMBER 2023

Proposed protected action ballot of employees of Veolia Recycling & Recovery Pty Ltd

1. The Transport Workers’ Union of Australia (TWU) has applied under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Veolia Recycling & Recovery Pty Ltd (Veolia). Veolia objects to the application because of the TWU’s approach in bargaining in relation to some of the matters in dispute. Veolia also seeks an extension of the notice period for protected industrial action on the basis that there are exceptional circumstances. A separate objection made by Veolia to one of the proposed ballot questions has now been resolved by agreement.

1. Section 437 of the Act deals with when a bargaining representative can apply for a protected action ballot order. Section 443 requires the Commission to make a protected action ballot order if certain conditions are met. On the material before me, including the declaration of TWU Organiser, Mr Russell Vieritz, written submissions from the parties and their oral submissions at the hearing on 5 September 2023, I am satisfied that these conditions are met. This is because:

1. there is a notification time in relation to the proposed agreement,

2. the application is made under section 437, and

3. the TWU has been, and is, genuinely trying to reach an agreement with Veolia.

Whether the TWU has been, and is, genuinely trying to reach agreement.

1. Veolia submits that the TWU is not genuinely trying to reach agreement because of its intentional delay in the discussion of wages pending resolution of other (mainly safety) claims, the late making of a claim for allowances for employees working on multi-unit dwellings (MUDs), a failure to explain the rationale for the rate at which RDO’s are sought to be cashed out, and a failure to respond to Veolia’s own response to the TWU’s claim for an indemnity clause covering legal support for drivers who are subject to legal action from third parties in the course of their duties. Veolia also points to the difference between it and the TWU in relation to how many outstanding claims there are.

1. There have been 13 meetings between the parties. Substantial progress has been made on their respective claims. The parties have regularly attended scheduled meetings, which have increased both in duration and frequency, in a bid to reach agreement. The TWU’s hope is that agreement will be reached at least before Christmas. As to the specific matters raised by Veolia:

1. It is not uncommon for the question of wages to be deferred until late in the bargaining process because of the reality that other claims may have a cost which needs to be factored into the overall wage outcome.

1. It is not ideal for a new claim to be made at a later stage in bargaining because of the effect this can have on the timely resolution of disputes as well as its potential to strain the goodwill of the parties. Even so, a late claim is not of itself an indicator that a party is not genuinely trying to reach agreement. It may simply be that the subject matter of the claim has only arisen in the course of bargaining, either because of how the discussions have progressed or because something has happened since the original claims were made. The claim in question remains subject to ongoing consultation within the group of employees. It may not proceed. It is nevertheless a claim genuinely made, for the purpose of inclusion in the proposed enterprise agreement, by employees who will be covered by its terms.

1. I do not share Veolia’s view that the TWU has failed to explain the rationale for its claim that rostered days off (RDO’s) be cashed out at 150%. The TWU has explained the claim by reference to the maximum weekly hours provisions of the National Employment Standards (NES), on the basis that hours of work in excess of those hours would ordinarily be characterised as overtime. It is a notorious fact that the NES does not provide for overtime, and the TWU’s claim is made in the context of a bargain between two experienced industrial parties who can be taken to understand the RDO mechanism and how it is affected by the underlying provisions of the modern award and enterprise agreement.

1. I am not satisfied that the TWU has failed to respond to Veolia’s response to the claim for legal support for drivers who are subject to legal action from third parties in the course of their duties. I have my own doubts about the extent to which this claim is about matters pertaining to the employment relationship. However, Veolia does not raise a concern of this kind and the log of claims put forward by the TWU is expressed to limit its claims to such matters. The claim must be read in this context, and it will be a matter for the parties to ensure that any final form of wording has operative effect. In the meantime, Veolia concedes that the TWU responded to the effect that it had received internal legal advice, and that Veolia’s alternative proposal was not accepted because one could “drive a garbage truck through it” in terms of the commitment, and certainty, that it offered. In my view, more progress on this claim could be made if the TWU provided specific feedback in the form of revised alternative wording. That it has not done so does not, however, mean it is not genuinely trying to reach agreement.

1. The different count of ‘outstanding claims’ takes the matter no further. This is simply a difference of perspective about what counts as ‘outstanding’. In my view, the parties are clear as between each other on the current status of bargaining, and their perspectives are not so different.

1. It follows that a protected action ballot order must be made.

Whether the period of notice of employee claim action should be longer than 3 working days

1. I am satisfied that there are exceptional circumstances justifying a period of written notice of 4 days for the taking of employee claim action. Veolia’s waste management task for the Brisbane City Council is a significant one – indeed, it is one of the largest in the southern hemisphere. This logistical feat covers approximately 150,000 daily residential waste collections, 3,700 bulk multi-unit dwelling collections and 2,500 parks and other public facility collections. Delivering on this task requires Veolia to roster its workers, including approximately 120 employees, 60 contingency workers and 23 contractors, across Monday to Friday (residential collections) and on the weekends (bulk and public area collections).

1. The continuous nature of the task means that Veolia has limited capacity to absorb backlogs due to delays in waste collection for any range of reasons, such as weather events or industrial action. Service interruptions require adequate notice to the Council so that mitigation strategies can be put in place, including public health and safety measures and traffic management plans relating to increased public use of refuse processing facilities. It may also require stakeholder engagement directly between Veolia and the thousands of community members who may be affected by changes to their waste collection at any one time.

Disposition

1. A protected action ballot order will issue separately (PR765809) and will provide for voting to close by 20 September 2023. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS, an approved eligible protected action ballot agent for the purposes of section 468A of the Act.[1] Separate orders will also issue for the conduct of a compulsory conciliation conference under section 448A of the Act.

COMMISSIONER

Appearances:

H Dalton-Bridges of the Transport Workers’ Union of Australia.
V Subramanian for the respondent.

Hearing details:

2023.
Sydney (by video)
September 5.

<PR765808>

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

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