TWU v CRT Group Pty Ltd
[2009] FWA 425
•8 OCTOBER 2009
[2009] FWA 425 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
CRT Group Pty Ltd
(B2009/10699)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 8 OCTOBER 2009 |
Proposed protected action ballot by employees of CRT Group Pty Ltd – whether applicant was genuinely trying to reach an agreement.
[1] The Transport Workers’ Union of Australia (TWU) made an application on 22 September 2009 for a protected action ballot in relation to its members employed by CRT Group Pty Ltd (CRT). The matter was heard on 24 September 2009. At the end of the hearing I indicated that I would make an order (PR989489). I said that I would provide written reasons for my decision at a later date.
[2] Section 443 of the Fair Work Act 2009 (the Act) provides that FWA must make a protected ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under s.437; and
(b) FWA 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.
[3] If the relevant requirements are met, FWA is obliged to make the order. Conversely, FWA can only make an order where those requirements are met.
[4] During the hearing, CRT opposed FWA making the proposed order. Most of CRT’s submissions were in support of the contention that the TWU was not genuinely trying to reach an agreement with CRT. These written reasons are focussed on that issue.
The evidence
[5] Evidence was given by Mr Houniet (National Operations Manager, CRT) and Mr McNess (senior negotiator for the TWU).
[6] CRT and its employees are currently covered by a pre-reform Certified Agreement made with the TWU and the National Union of Workers (NUW). It has a nominal expiry date of 3 March 2009.
[7] CRT commenced negotiations towards the end of 2008 in pursuit of a national union collective agreement under the Workplace Relations Act 1996 with the TWU and the NUW, covering employees in NSW, Victoria and Queensland. Several meetings occurred over the first half of 2009, and in June 2009 CRT presented a draft agreement to the unions. The company’s proposal was rejected at a series of meetings held by the unions with their membership and further discussions continued after the Fair Work Act commenced on 1 July 2009. On 1 July 2009 CRT formally gave notice to its employees concerning their representational rights under the Act.
[8] On 7 July 2009 Mr Roche (who was CRT’s National Human Resource Manager at the time) sent an email to Mr McNess, who was negotiating on behalf of the TWU, asking him to ‘specify the area(s) in which the parties are apart.’ A similar email was sent to Mr Richardson, who was negotiating on behalf of the NUW.
[9] On 8 July 2009, Mr McNess responded in the following terms:
“The areas that we are apart, in regards to TWU members, are as follows.
NSW – 2 or 3 agreement only
Grade 6 too general, no recognition of the specialised skills required to work the discharge tanker, the pod and the rotary. Drivers working on all three components are being paid the same as drivers doing only one of the above or driving a truck only
No recognition of the specialised skills of the rail interface workers who are responsible for the rail manifests and loading correct weight on trains
Productivity bonus currently stands at 1% an increase to 2% is sought
Preference clause, employees to be utilised prior to the engagement of sub-contractors. Employees currently losing work to a sub-contractor they believe is not adhering to safe working hours requirements
Back pay to 1 March 2009
Vic - 2 year agreement 4% + 4%
Back pay to 1 March 2009
Payment of a DG/dirt allowance
Seeking confirmation of Qld issues; believed to be a shorter duration as well as some concerns with the pay increase structure.”
[10] An ‘off the record’ meeting took place on 23 July 2009 between CRT, the TWU and the NUW at the TWU’s offices in Melbourne.
[11] On 4 August 2009, Mr Roche sent Mr McNess a draft enterprise agreement. The same day, Mr Houniet sent a letter to the General Secretary of the NUW, Mr Donnelly (with a copy to the TWU) proposing two alternatives for the unions’ consideration. Option 1 consisted of a revised version of the company’s previous offer with a three year agreement (instead of four years) and a series of ‘minor changes’ and other changes ‘necessary to reflect the requirements of the Fair Work Act 2009’. The second option involved these changes, plus a different set of arrangements for pay rates. The letter also re-confirmed CRT’s rejection of the TWU’s demands in relation to a clause granting preference to employees over sub-contractors, a dangerous goods allowance and further distinction of skills within the level 6 classification. Finally the letter indicated that the bonus program had been removed from the proposed agreement and back payment would take effect from the beginning of the month in which agreement was reached.
[12] On 3 September, the NUW wrote to Mr Houniet indicating that its membership had considered the company’s proposal and rejected it, based on ‘the need for all employees to receive a minimum wage increase of 3% for each year of operation of the proposed agreement’ and ‘The back payment of the first wage increase to 17 March 2009, being the nominal expiry date of the current agreement.’ The company then made a revised proposal on 4 September 2009 incorporating some changes in the area of wages. On 10 September 2009 the NUW wrote again to CRT indicating that this revised proposal had been accepted by the majority of members. The letter concluded by asking Mr Houniet to liaise with Mr Richardson ‘to facilitate the formal approval and filing of this agreement at the earliest opportunity.’ Despite this letter Mr Richardson sent an email to Mr Houniet on 14 September attaching a revised draft of the proposed agreement, and indicated there were 14 ‘key issues where either the Union has a difference of opinion to CRT or further discussion is required.’ These issues included the role of unions and ‘union recognition matters’, preference for permanent employees, and union picnic day.
[13] Another meeting was held on 14 September 2009 between CRT and the NUW. Mr McNess, at the last minute, indicated he was unable to attend.
[14] On 15 September 2009, Mr McNess sent an email to Mr Houniet stating the following:
“The position for TWU members at CRT is that the current offer from the company has been rejected. The two issues separating us are; Dangerous Goods Allowance
; Preference clause
Delegates and members, especially in NSW and VIC, inform me they are knocked off after 8 hours and contractors are given 12 hours. Casuals are brought in on the weekends whilst fulltime employees are not considered for this work. Whole sections of work are handed to outside fleet management. The response from local management is that “they will manage the company as they see fit.”
Clearly this is a major issue for the employees, as this strips them of any opportunity to increase their income. The company has indicated during the negotiations that retention of its experienced personnel was important.
With this in mind, the Union requests that the company reconsider its position on a Preference clause and respond to the Union by close of business, Friday 18/9/09.”
[15] During cross examination Mr Houniet was asked when it was communicated to him that the TWU had agreed on rates. He replied that he had never suggested the TWU had agreed on rates. “I’ve just taken the communication from Mr McNess as being the outstanding items as being the actions that are before me for resolution”. 1 He also agreed that at the end of the day “it would be a total package that would be put up for acceptance or rejection”.2
[16] In response to a question from the tribunal, Mr McNess said the rates of pay issue was not referred to in his email of 15 September 2009 because “the rates were ongoing, they were a moving target”.
[17] On 17 September Mr Houniet sent a letter to Mr McNess with a proposed provision for inclusion in the agreement concerning the ‘preference’ issue.
[18] A further meeting was held by telephone on 22 September 2009 to discuss the draft agreement with Mr Houniet, Mr McNess, Mr Richardson, Mr Johnston (National Employee Relations Manager, CRT) and Mr Lucas (Employee Relations Manager with QR Freight – a member of the CRT Group). Mr Lucas had sent both Mr McNess and Mr Richardson a revised copy of the draft agreement earlier that day. The discussion proceeded through the document on a clause by clause basis. This included a proposed clause incorporating CRT’s response to the ‘preference’ issue. The evidence is that no objection was made by the union representatives to this clause, but during cross examination Mr McNess commented “If that’s a preference clause, it’s not a clause that has been accepted as yet and has been reviewed by the membership”. 3 When the discussion reached a clause allowing for agreement to the introduction of 12 hour shifts, Mr Richardson supported by Mr McNess objected to the deletion of a reference to consultation with ‘relevant unions’ that exists in the current Certified Agreement, and its replacement by a reference to consultation with employees ‘and if requested their representatives.’ The union representatives indicated that the issue of union representation was a major stumbling block. There was an agreement to adjourn the meeting until 24 September 2009. According to Mr McNess this would enable CRT to reconsider putting references to the unions back into a number of clauses.
[19] Mr McNess gave evidence that the first time he became aware of CRT’s changes in relation to employee representation issue was on 22 September 2009. 4 I note that the proposed removal of the reference to ‘relevant unions’ (together with other similar changes) was included in the draft agreement sent by CRT on 4 August 2009, but had not been included in the NUW draft sent on 14 September 2009. During his cross examination Mr Houniet acknowledged that the issue of union representation had not really been referred to or worked through until the meeting on 22 September 2009.5
Consideration
[20] CRT submitted that the TWU had identified on 8 July 2009 its outstanding matters. CRT then responded with a draft agreement. On 15 September 2009, Mr McNess then put forward a revised version of the TWU’s outstanding issues. These were a dangerous goods allowance and preference in employment. No reference was made to issues of union representation by the TWU until the meeting on 22 September 2009. According to CRT the fact that it was raised at that point, when it had not been raised previously, wascapricious conduct in relation to the negotiations, and was indicative of a failure to make a genuine attempt to reach an agreement.
[21] The TWU submitted that there were still four unresolved issues at the time of the hearing: rates of pay, a dangerous goods allowance, a preference clause and employee representation.
[22] In relation to the rates of pay issue, Mr McNess’s evidence was in effect that it was common knowledge that the parties were still apart on this issue, despite this not having been separately identified in his email of 15 September 2009. Mr Houniet’s evidence is that he had never suggested that the TWU had agreed on rates. It would nevertheless have been better if this had been spelt out as an unresolved issue in the 15 September email.
[23] As for the issue of giving preference to permanent employees, while Mr McNess appears to have been positively inclined to CRT’s proposal, I am satisfied that he had not advised CRT that it had been formally accepted by the TWU.
[24] I infer from the evidence that the issue of union representation arose primarily in response to CRT’s proposed changes to the current Certified Agreement. While these changes had been included in the draft sent on 4 August 2009, Mr McNess had not picked up on this until the meeting on 22 September when, for the first time, the parties started working through the text of the proposed agreement in detail.
[25] The evidence suggests that the negotiations have not been handled as well as they might have been by the TWU. CRT may have been led to believe that certain issues had been resolved when this was not in fact the case. Moreover, Mr McNess’s failure properly to assess the CRT draft, identify any concerns and convey them to the company prior to the meeting on 22 September 2009 was unfortunate, and possibly even unprofessional, but I do not consider it was indicative of a lack of good faith.
[26] While there is a relationship between ‘genuinely trying to reach an agreement’ and ‘bargaining in good faith’ it would be wrong simply to conflate the two terms. Even if I had found that the TWU was not bargaining in good faith – something I have not done – that would not necessarily mean that the TWU was not genuinely trying to make an agreement. Indeed the Explanatory Memorandum to the Fair Work Bill 2008 states, when dealing with the ‘genuinely trying to reach an agreement’ expression in s.413 (Common requirements that apply to industrial action to be protected industrial action):
“…The question whether a person is genuinely trying to reach an agreement requires a subjective assessment of the actual intention of the person and the overall circumstances. It is not limited to an assessment of whether the person is complying with the good faith bargaining requirements”.
[27] I am satisfied that the applicant in this matter was, both prior to, and at the time the application was made, genuinely trying to reach an agreement under the Act with CRT.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms T Walton for the TWU
Mr D Johnston for CRT Group Pty Ltd
Hearing details:
2009:
Sydney
24 September 2009.
1 PN202.
2 PN203.
3 PN382.
4 PN323.
5 PN200.
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