United Workers' Union v Accolade Wines Australia Limited T/A Accolade Wines
[2024] FWC 2704
•3 OCTOBER 2024
| [2024] FWC 2704 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
United Workers' Union
v
Accolade Wines Australia Limited T/A Accolade Wines
(B2024/1266)
| COMMISSIONER THORNTON | ADELAIDE, 3 OCTOBER 2024 |
Proposed protected action ballot of employees of Accolade Wines Australia Limited
This is an application by the United Workers’ Union (UWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Accolade Wines Australia Limited trading as Accolade Wines (Accolade Wines or Employer).
On 26 September 2024, the Employer advised the Commission it objected to the Application on two grounds. These can be summarised as:
(a) The ballot questions proposed in the application lack sufficient clarity to enable the employees to make an informed decision; and
(b) The UWU is not genuinely trying to reach agreement with the Employer.
I conducted a hearing to determine the matter on 27 September 2024. The UWU rejected each of the objections of the Employer and contended that all of the requirements of the Act had been met for the application to be granted. The UWU was represented by Mr Simon Blewett and it relied upon the declaration[1] of Tasha Linke, an Organiser with the Union who had been representing union members in the bargaining. Accolade Wines was represented by Ms Adela Sajevic, Senior Legal Counsel.
In general terms, there is little factual dispute between the parties. The differences involve matters of characterisation and the implications of the facts for the statutory requirements.
At the conclusion of the hearing, I advised the parties that the application met all of the statutory requirements for the protected action ballot order (PABO) to be made and subsequently issued the order. My reasons for doing so are set out below.
Section 437 of the Act provides as follows:
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 the application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
Section 443 of the Act provides:
“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.
I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter. Further, most of the matters raised in the provisions above were also not in dispute.
The UWU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. There is no dispute that the UWU was entitled to bring the application. For reasons set out below I find a valid application has been made under s.437 of the Act. The substantive requirement that must be met is whether the UWU has been and is genuinely trying to reach an agreement with the Employer pursuant to section 443(1)(b) of the Act.
The Employer did not lead evidence in the hearing, however, did cross examine the evidence given by Ms Linke orally and in a statutory declaration. The facts are not generally in dispute.
Genuinely trying to reach agreement
The evidence before the Commission demonstrates a comprehensive history of bargaining, where 11 bargaining meetings have been held between the parties between 18 April and 24 September 2024. In the same period, the UWU has held 11 meetings directly with members at different sites of Accolade Wines to discuss matters arising from the bargaining and communicated with members not present at meetings by email, text message and telephone.
On or about 16 September 2024, the Employer put what it described as a “formal full package offer”[2] to the UWU in writing. I understand from the Employer’s submissions that the formal full package offer was a fulsome response to the outstanding issues in the bargaining, for the UWU and its members to consider as a package.
The UWU responded to the formal full package offer by email on 19 September 2024, and further discussions occurred at the bargaining meeting held on 24 September 2024.
The Respondent contended in their correspondence with the Commission in opposing the application for the order that “it is clear that since 10 September 2024, the UWU had not been genuinely trying to reach agreement”[3] but at the hearing confirmed that the date from which they assert the UWU had ceased genuinely trying to reach agreement was 16 September 2024 onwards. I understand the Employer limited their allegation that the UWU was not genuinely trying to reach agreement to commence from 16 September 2024 because they take issue with the conduct of the UWU in the bargaining after Accolade Wines released their full package offer.
To the extent that the Employer asserted that the UWU was not bargaining in good faith from 16 September 2024 onwards, the reference to “good faith” in the Employer’s position is to the good faith bargaining requirements set out in s.228 of the Act. Section 442(1)(b) only requires that the Commission satisfy itself that each applicant has been and continues to genuinely try to reach an agreement with the employer.
The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has also previously been summarised, in effect, by the Full Bench in Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers’ Union.[4] This includes, as relevant to this matter:
(a)While there is a relationship between the good faith bargaining requirements in s.228 of the Act and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.[5]
(b)The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s.443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied.[6] The Commission should have regard to all of the relevant facts and circumstances of the particular case.[7]
(c)It is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement.[8]
(d)The reference to the Commission being ‘satisfied’ means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant union. The expression ‘has been, and is’, imports temporal considerations. The Commission’s attention is thereby directed to the applicant’s prior conduct at the time the application for a protected action ballot order is determined. Given the context the reference to ‘an agreement’ is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the Act.[9]
I understand the Employer’s assertions in this matter that the UWU was not bargaining in good faith is a conflation of the concepts of bargaining in good faith and genuinely trying to reach agreement, and accept the Employer’s submissions are directed to the latter. As the PABO application does not stop the bargaining, the obligation to bargain in good faith remains on the parties.
The expression “genuinely trying” has also been taken to be concerned with the genuineness or authenticity of the trying; that is, the efforts, by the applicant to reach the stated goal, being an enterprise agreement that meets the requirements of the Act.[10] In the recent authority of Kuiper Australia Pty Ltd v The Australian Workers’ Union[11], the Full Bench of the Commission noted:
“The matter about which the Commission must be satisfied is whether the applicant has been, and is, genuinely trying to reach agreement with the employer. The authorities (with respect sensibly) have eschewed attempts to establish rigid or generally applicable rules as to what must have occurred in bargaining before the Commission is likely to be satisfied that an applicant is genuinely trying to reach agreement. The Commission is required to make an impressionistic assessment of whether an applicant is genuinely trying to reach agreement in light of the particular circumstances of each application.”[12]
The Respondent argued that the UWU was not genuinely trying to reach agreement since it made its formal full package offer because, despite meetings and communications with its members, the UWU was not authorised by its members to make a suitable counter-offer to the full package offer in the lead up to or at the bargaining meeting of 24 September 2024. The Employer argued the UWU ought to have sought endorsement of what they refer to as “guardrails” from their members to bring to the bargaining table so further offers could be exchanged at the bargaining meeting on 24 September 2024. I understand the reference to guardrails by the Employer is to an endorsed range of options to resolve the remaining bargaining that gave the UWU an approved scope for negotiation.
I understand that what the Employer is asserting is that they were dissatisfied with the response given by the UWU to their formal full package offer and had an expectation that the union would have been given instructions by their members when they met with them to bargain within an endorsed range of outcomes. Instead, the Employer asserted that what they received by way of a response from Ms Linke was “feedback on the Offer, which included comments in relation to the Offer”[13] but which Ms Linke described as “a member endorsed counter-offer.”[14]
The Employer’s dissatisfaction with the approach taken to negotiation by the UWU is not sufficient for me to find that the UWU was not genuinely trying to reach an agreement with the Employer.
Ms Linke gave detailed evidence about a range of matters including the processes the UWU had adopted to consult with members about the content of the bargaining and how the union had come to understand the views of their members about the subjects canvassed in the course of bargaining. Ms Linke’s evidence was largely unchallenged and I accept the evidence given by her.
Since 16 September 2024, when the Employer says the UWU had ceased to be genuinely trying to reach agreement, Ms Linke’s evidence was that the UWU held meetings with members at two sites of the Employer, that she had communicated with other members at two other sites, she had provided a response to the Employer’s formal full package offer verbally and in writing and attended a bargaining meeting on 24 September 2024. These actions are consistent with steps taken to genuinely reach an agreement with Accolade Wines.
The Employer also made a thinly veiled assertion that if the UWU had not obtained the endorsed position Accolade Wines considered they ought to have, that the meetings with members were held for an ulterior purpose or with an improper purpose. There was no evidence in this matter that supports that view.
Accolade Wines also raised broader concerns about the proposed action. They set out in submissions a concern that the broad range of stoppages allowed by the questions as put (if the ballot is successful) will not allow them to adequately prepare for the proposed industrial action. Accolade Wines sought to distinguish this case from the matter of NTEU v Curtin University based on the size and complexity of their enterprise. The Respondent submitted that their enterprise is a complex wine operation, the largest in the Southern Hemisphere, with employees working across day, afternoon and night shifts. No evidence was advanced at the hearing to support these assertions.
These concerns are issues that may arise in the future, if a bargaining representative gives written notice under section 414 of the Act that industrial action will be taking place. They are not concerns relevant to whether the PABO should be made.
In final submissions the UWU drew attention to what they perceive as a misconception on the part of the Respondent being that the “taking of protected industrial action is somehow incompatible with genuine agreement making.”[15] The UWU submits that the taking of protected industrial action is a right under the Act and is referenced in a part of the Act that deals with agreement making, and therefore cannot be incompatible with genuinely trying to reach agreement. The taking of protected industrial action is not of itself contrary to genuinely trying to reach agreement.
Further, the UWU sought to dispel what they say is an additional but related misconception held by Accolade Wines that bargaining negotiations have to be exhausted before employees resort to protected industrial action. The submission of the UWU was that the position taken by the Employer in this matter again emanates from an incorrect view that industrial action is incompatible with genuine negotiation.[16]
There is nothing in the Act itself or relevant jurisprudence that supports that view. The scheme of the Act expressly allows for the taking of protected industrial action in the context of bargaining as long as various requirements are met. None of the requirements set out in the Act relating to protected industrial action specify that negotiations for an agreement must be at a certain stage, be finalised, exhausted or even at an impasse for a PABO to be sought.
Considering all the relevant circumstances in this matter,[17] the evidence before the Commission supports the notion that the UWU has been and is genuinely trying to reach an agreement with the Employer. It has also meaningfully engaged and continues to engage with the bargaining process with the genuine objective of reaching an agreement. The union also appears to remain committed to negotiating a new enterprise agreement with the Employer and its actions confirm that it is doing so genuinely.
I find that the UWU has met the requirements of s.443(1)(b) of the Act.
Objection regarding proposed ballot questions
The questions set out in the order sought by the UWU are as follows:
“In support of reaching an enterprise agreement with Accolade Wines Australia Limited, do you authorise the taking of protected industrial action against your employer, separately, concurrently and/or consecutively, in the form of:
1. An unlimited number of stoppages of work of 1 hour to 24 hours duration?
YES [ ] NO [ ]
2. An unlimited number of bans on the performance of overtime of indefinite duration?
YES [ ] NO [ ]”
The Employer argues that the use of the words “unlimited” and “indefinite” in the ballot questions, as well as the provision for stoppages of work over the “broad duration” of 1 to 24 hours make the questions ambiguous, open-ended and uncertain.[18] It is the submission of Accolade Wines that the ambiguity in the questions will result in the employees voting in the ballot being incapable of responding to the questions.[19]
The objection concerning the proposed ballot questions raises the requirements of s.437(3)(b) and s.443(3)(d) of the Act. The Full Bench of the Commission in National Tertiary Education Industry Union v Curtin University[20] (NTEU v Curtin) described the task as follows:
“[50] Section 437(3)(b) also requires that the question(s) must include specification of “the nature of the industrial action”. In context, this is to be read as meaning that the “the nature of the industrial action” must be the subject of the question - that is, it must be the matter for which a “yes” or “no” answer is sought. The word “nature” is one of high generality, and in context refers to the “character, kind or sort”[21] of the industrial action. The proposed action specified in the question must be something that is capable of constituting “industrial action” within the meaning of the definition of that expression in s 19(1) of the FW Act.[22] However, it is not necessary that the specified action constitute industrial action in all conceivable circumstances, for the reasons stated by the Federal Court (Tracey J) in Ambulance Victoria v United Voice:
“Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.”[23]
(underlining added)
[51] The above passage points to the need to distinguish between what must be specified pursuant to s 437(3)(b) in an application for a protected action ballot order and what must be specified in a notice of employee claim action under s 414(1). In respect of the latter, s 414(6) requires that the notice “specify the nature of the action and the day on which it will start”. As stated in Prosegur[24] (2) albeit by reference to s 443(3)(d) rather than s 437(3)(b):
“[38] ... Sections 443(3)(d) and s 414(6) use different language and are concerned with different subject matters. The former provision requires specification of the nature of the ‘proposed industrial action’ in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise. By contrast, s 414(6) requires specification of the nature of ‘the action’ - that is, identification of industrial action which employees are actually going to undertake. In that circumstance, the precise form of the industrial action to be taken will be known to the bargaining representative. The provision’s purpose is to allow the employer an opportunity to take defensive measures in response to the industrial action. In that context, a greater degree of particularity may be required than under s 443(3)(d).”
[52] In a similar vein, the Full Bench in Total Marine Services said that “the precise timing and length of the action is not determined at the stage of authorisation.”[25]
[53] In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement[26] and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued). We therefore affirm that paragraph [19] of the decision in John Holland[27] states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange[28] are not consistent with that approach and should not be followed.”
I consider that the questions are expressed in ordinary ‘industrial’ terms that are capable of being understood and answered “yes” or “no” by the employees participating in the ballot.
The Employer also argued that a proper application was not made under section 437 because of the ambiguity of the questions to be balloted. Section 437(1) provides that a bargaining representative of an employee who will be covered by a proposed agreement may apply to the Commission for an order that a protected action ballot be conducted to determine “whether employees wish to engage in particular protected industrial action.”[29]
The Employer asserts that requirements of section 437(1) are not met in this case because the employees voting in the ballot will not be able to be certain about whether they wish to engage in the industrial action referred to in the questions because the industrial action is not clearly particularised.
For the action to be taken it must be authorised by the question in the ballot and the ballot needs to have been approved by a majority of employees voting. I have found that the questions in the ballot are capable of being understood and answered by an employee voting. Any need for clarity about the precise industrial action to be taken is a “problem down the track when the action is taken or the action is notified or in subsequent proceedings when the action is sought to be relied upon as being protected. It is not a problem at the question stage.”[30]
Accolade Wines argued that if the questions as drafted were put to employees in a ballot that the decision about the duration of the action will be delegated to the UWU when this is not permissible under the Act. The authority in John Holland and NTEU v Curtin University also makes clear that the actual industrial action to be taken is decided at a later stage when the employees decide whether to take the particular action.
I agree with the submissions of the UWU that there is no delegation of authority to the union to decide on the action to be taken from the nature of the questions in this matter. It is in fact the employee that makes the final decision when they decide whether to take the industrial action in the form notified to the employer.
In addition to the finding that the questions are expressed in ordinary terms that are capable of being answered yes or no, the questions also set out the nature of the proposed action that is of an identified character, kind or sort capable of constituting industrial action within the meaning of s.19(1) of the Act.
I find that the application and proposed order met the requirements of s.437(3)(b) and s.443(3)(d) of the Act.
Conclusion
On the basis of the material before me, I am satisfied that:
(a)a valid application has been made under section 437 of the Act;
(b)the UWU is genuinely trying to reach an agreement with the Employer;
(c)the questions contained in the orders sought meet the requirements of sections 437(1), 437(3)(b) and 443(3)(d) of the Act;
(d)there is a notification time[31] in relation to the proposed agreement; and
(e)that all of the requirements in s.443 of the Act have been met, including those not in contest and not expressly dealt with in this decision.
On that basis, and given that s.443(2) does not apply, I was obliged by the Act to issue the Order.
The ballot is to be conducted by the Democratic Outcomes Pty Ltd (CiVS).
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 16 October 2024.[32] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR779737.
Pursuant to s.448A of the Act, a compulsory conference was convened for the purposes of conciliation in relation to the Agreement.
COMMISSIONER
Appearances:
S Blewett of Selby Street Chambers with permission, on behalf of the United Workers’ Union.
A Sajevic for the Respondent, Accolade Wines.
Hearing details:
Adelaide
2024
27 September.
[1] Form F34B - Declaration in support of an application for a protected action ballot order of Ms Tasha Linke, dated 25 September 2024.
[2] Oral submissions of the Respondent at 49:04.
[3] Email containing the Respondent’s objection submissions, dated 26 September 2024 – at Ground 2, paragraph 3.
[4] [2015] FWCFB 210.
[5] Ibid at [18].
[6] Ibid at [34] - drawing upon Total Marine Services Pty Ltd v The Maritime Union of Australia[2009] FWAFB 368 (‘Total Marine’).
[7] Ibid at [57].
[8] Ibid at [35] - but qualifying a further statement made in Total Marine.
[9] Ibid at [54].
[10] J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 9963 at [58] and Kuiper Australia Pty Ltd v Australian Workers' Union[2024] FWCFB 378 at [26] to [30].
[11] [2024] FWCFB 378.
[12] Ibid at [27].
[13] Email containing the Respondent’s objection submissions, dated 26 September 2024 – at Ground 2, paragraph 3d.
[14] Email from Ms Linke to Ms Eyres, dated 23 September 2024 at 3:16pm.
[15] Oral submissions of the Applicant at 1:26:50.
[16] Ibid at 1:28:00.
[17] See Total Marine Services at [31] and [32].
[18] Email containing the Respondent’s objection submissions, dated 26 September 2024 – at Ground 1, paragraph 3. In oral submissions the Respondent indicated that they did not press their objections to the use of the words “indefinite” and “unlimited” but did press their objection to the board duration of 1 to 24 hours.
[19] Email containing the Respondent’s objection submissions, dated 26 September 2024 – at Ground 1, paragraphs 2 and 3.
[20] [2022] FWCFB 204. See also John Holland v AMWU[2010] FWAFB 526 at [19].
[21] Macquarie Online Dictionary.
[22] Ambulance Victoria v United Voice [2014] FCA 1119, 245 IR 375 at [19].
[23] Ibid at [18].
[24] Transport Workers’ Union of Australia v Prosegur Australia Pty Ltd[2021] FWCFB 1562 at [38].
[25] [2009] FWAFB 368, 189 IR 407 at [39].
[26] See ss 186(2)(a) and s 188.
[27] John Holland Pty Ltd v Automotive, Food, Metals Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)[2010] FWAFB 526 (‘John Holland’).
[28] National Union of Workers—New South Wales Branch v FreshExchange Pty Ltd[2009] FWA 221.
[29] See section 437(1) of the Act, emphasis added.
[30] Oral submissions of the Applicant at 1:07:07.
[31] Required by s.437(2A) of the Act.
[32] This is, in effect, 12 working days from the making of the Order and was the specific date sought in the application.
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