United Workers' Union v Allied Pinnacle Pty Limited T/A Allied Pinnacle

[2020] FWC 4472

[2020] FWC 4472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Allied Pinnacle Pty Limited T/A Allied Pinnacle
(B2020/456)

DEPUTY PRESIDENT YOUNG MELBOURNE, 24 AUGUST 2020

Proposed protected action ballot of employees of Allied Pinnacle Pty Limited T/A Allied Pinnacle.

[1] This is an application for a protected action ballot order pursuant to section 437 of the Fair Work Act 2009 (Cth) (Act). The application concerns a proposed ballot of certain employees of Allied Pinnacle Pty Limited T/A Allied Pinnacle (Allied Pinnacle).

[2] Allied Pinnacle opposes the application on the basis that the United Workers Union (UWU) is not genuinely trying to reach agreement.

[3] At the hearing Mr Martin de Rooy, Industrial Officer, appeared for the UWU and Mr Robert Lee, General Manager, Human Resources, appeared for Allied Pinnacle. Neither party led any witness evidence.

Statutory framework

[4] Section 437 of the Act enables a bargaining representative to apply for a protected action ballot order. Subject to the restrictions in section 437(2A) and section 438 (which are not presently relevant), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in section 443. This section, relevantly, 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).”

[5] The Act does not vest in the Commission a general discretion as to whether a ballot order should be issued. Rather, section 443 requires the Commission to make the protected action ballot order if it is satisfied of the matters set out in that section.

Relevant context

[6] Allied Pinnacle and the UWU, as bargaining representative of at least one of the employees to be covered, are bargaining for an enterprise agreement to replace the Allied Mills Tullamarine Food Manufacturing Enterprise Agreement 2016-2019 (Proposed Agreement). 1 The existing enterprise agreement has a nominal expiry date of 30 September 2019.

[7] On or about 29 November 2019 the UWU tabled a “log of claims” with Allied Pinnacle. 2

[8] Bargaining commenced on 9 December 2019. 3

[9] Since that time there have been no less than three meetings held between the parties for the purpose of negotiating the Proposed Agreement. The UWU has been represented in each of those meetings by a UWU official and three UWU delegates. A fourth delegate was able to attend only two of these meetings due to working night shift. 4

[10] Whilst progress has been made, the parties have not reached an agreement. The primary matter in contention relates to the proposed wage increase. 5

[11] On or about 18 June 2020 the UWU made an application for a protected action ballot order (B2020/326) (First PABO Application). The First PABO Application was not opposed by Allied Pinnacle. The First PABO Application was determined by the Commission on 22 June 2020 6 and an order for a protected action ballot issued on the same date.7

[12] It appears uncontested that the last meeting between the parties in relation to the Proposed Agreement was on 3 July 2020, following which the UWU sent correspondence to Allied Pinnacle on 6 July 2020. That correspondence was responded to by Allied Pinnacle on 13 July 2020.

[13] The results of the First PABO Application were declared on 30 July 2020 (Declaration of Results). Of the 41 employees on the roll of voters for the ballot, only four employees returned ballot papers. 8 Accordingly, the ballot did not authorise the taking of industrial action.9

[14] The UWU contends that the First PABO Application was affected by postal delays due to COVID-19. 10 At hearing, the UWU submitted that following the Declaration of Results it held a telephone discussion and zoom meeting with its delegates and members and it was decided to make a further application for a protected action ballot order.

[15] That application was made on 20 August 2020 and is the subject of this decision.

[16] The UWU’s evidence is that the UWU has been, and is, genuinely trying to reach agreement with Allied Pinnacle. 11 At hearing it submitted that the circumstances of the present application are not materially different to those of the First PABO Application. It submits that it has not refused to meet with Allied Pinnacle nor engaged in unfair or capricious conduct. Whilst noting that the latter of these matters is more properly relevant to good faith bargaining requirements, Allied Pinnacle does not contend that the UWU has refused to meet or that it has engaged in unfair or capricious conduct.

[17] Allied Pinnacle does not dispute that the UWU has been genuinely trying to reach agreement but says that the Commission cannot be satisfied that the UWU is genuinely trying to reach agreement. It submits that this is an ongoing requirement that the UWU must meet at the time its application for a protected action ballot order is determined. 12 It submits that since the Declaration of Results on 30 July 2020 and the present, the UWU has not sought to conduct any further discussions or negotiations with Allied Pinnacle in relation to the Proposed Agreement.13 It submits that in light of this, the Commission cannot be satisfied that the UWU is genuinely trying to reach agreement in accordance with section 443(1)(b) of the Act.14 Allied Pinnacle relies on the Full Bench decision in Coles Supermarkets (Australia) Pty Ltd v Australasian Meat Industry Employees Union15(Coles).

[18] In relation to the asserted postal delays affecting the First PABO Application, Allied Pinnacle submits that the UWU has provided no particulars of this or any evidence. 16 Further, it submits that another protected action ballot approved by the Commission (B2020/325) between the parties was completed by postal vote, conducted by the same protected action ballot agent, in the same period, in the same city. It submits that in that application 83% of employees on the roll of voters voted. I infer from this submission that Allied Pinnacle disputes that the failure of the First PABO Application to authorise industrial action was as a result of, or affected by, any postal delays.

[19] Irrespective of the reason for the failure of the First PABO Application, Allied Pinnacle does not dispute that the UWU is able to make a further protected action ballot order application.

Consideration

[20] It is common ground that the UWU has made a valid application under section 437 of the Act.

[21] Whether an applicant has been, and is, genuinely trying to reach an agreement is a question of fact to be decided by reference to all of the circumstances of the bargaining in question. 17 It will involve consideration of the negotiations and the steps taken in order to try to reach agreement.18

[22] Section 443(1)(b) requires that an applicant “has been and is” genuinely trying to reach agreement. There are therefore two temporal components to section 443; the Commission must be satisfied that the applicant has been genuinely trying to reach agreement, and that it is genuinely trying to reach agreement. In Coles 19the Full Bench of the Commission considered the temporal components of section 443(1)(b) and, relevantly, said as follows:

“The requirements in s.443(1)(b) of the Act that “the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement” involves two distinct temporal considerations. The use of the present tense “is genuinely trying to reach an agreement” requires satisfaction that, at the time of the determination, the applicant is trying to reach an agreement. The use of the past tense “has been genuinely trying to reach an agreement” requires satisfaction that the applicant had been trying to reach an agreement prior to the time of determination – applying the approach set out in Swire and JJ Richards in the course of the negotiations.

…

The temporal elements in s.443(1)(b) require that an applicant is trying to reach agreement at the time of determination (reflecting the evidence at the time of hearing) and that the applicant had been trying to reach an agreement before that time, determined by the application of the approach set out in Swire and JJ Richards. That gives purpose to the two temporal requirements within s.443(1)(b) of the Act.” 20

[23] Accordingly, as submitted by Allied Pinnacle, Coles makes it clear that section 443(1)(b) requires satisfaction that, at the time this application is determined (reflecting the evidence at hearing), the UWU is trying to reach an agreement.

Is the UWU genuinely trying to reach agreement?

[24] I am satisfied that the UWU has been genuinely trying to reach an agreement. As to whether the UWU is at the time of determination genuinely trying to reach an agreement, the UWU’s evidence is that it is, genuinely trying to reach agreement with Allied Pinnacle.

[25] I do not consider that the UWU’s conduct since the Declaration of Results, which Allied Pinnacle characterises as a lack of engagement, means that the UWU is not genuinely trying to reach agreement. The log of claims was tabled approximately nine months ago, and bargaining commenced on 9 December 2019. Since that time, the evidence before the Commission is that “not less than” three meetings in relation to the Proposed Agreement have occurred. The precise number of meetings between the parties and when they occurred is not in evidence before the Commission, other than it is agreed that the final meeting between the parties occurred on 3 July 2020. However, on the basis of the evidence that is before the Commission it appears that approximately three meetings have occurred in a period of almost nine months, with the last of those meetings occurring on 3 July 2020. As such, it appears that direct engagement between the parties in relation to the Proposed Agreement is somewhat episodic and does not occur on a particularly frequent basis. In relation to other communications between the parties, the full history of correspondence between the parties is not in evidence before the Commission. The evidence which is before the Commission is that there was last correspondence between the parties in relation to the Proposed Agreement on 6 July 2020 and 13 July 2020. Based on the evidence before the Commission it therefore appears that other communications between the parties in relation to the Proposed Agreement also did not occur particularly frequently.

[26] The Declaration of Results occurred on 30 July 2020. The current application was made on 20 August 2020 and heard today 24 August 2020. In the context of the manner in which bargaining has occurred between the parties, as set out above, most particularly the episodic nature and limited number of meetings between the parties, I do not consider that a period of slightly more than three weeks between the Declaration of Results and the determination of this application, where the UWU has not initiated further engagement with Allied Pinnacle in relation to the Proposed Agreement, means that the UWU is not genuinely trying to reach an agreement.

[27] As to the asserted postal delays in relation to the First PABO Application, the UWU did not lead any probative evidence of this. Further, whilst the failure of the First PABO Application is a relevant factual matter to which I have had regard, and explains why the current further application has been made, I do not consider that the reason for that failure is directly relevant to the matters currently in issue. It is not contested by Allied Pinnacle that the UWU may make a further application for a protect action ballot order. Additionally, the bringing of this application does not mean that the UWU is not genuinely trying to reach an agreement. To the contrary, taking steps to organise protected industrial action is a tool afforded by the Act for the UWU to utilise in an effort to incentivise agreement.

[28] In my view the evidence supports a conclusion that the UWU has been, and relevantly, is, trying to reach an agreement with Allied Pinnacle.

Conclusion

[29] Having regard to all of the circumstances of the bargaining, I am satisfied that the UWU has been, and is, genuinely trying to reach an agreement with Allied Pinnacle.

[30] I am also satisfied that the restrictions on the making of an application under sections 437(2A) and 438(1) are not applicable in the circumstances of the application, and that the other statutory criteria for the granting of a protected action ballot order have been met, noting that this was not in contest.

[31] A protected action ballot order has been issued separately in [PR722101].

DEPUTY PRESIDENT

Appearances:

M de Rooy for the Applicant

R Lee for the Respondent

Hearing details:

2020.
Melbourne (by telephone):
August 24.

Printed by authority of the Commonwealth Government Printer

<PR722105>

 1   Statutory declaration of Martin de Rooy dated 20 August 2020

 2   Ibid

 3   Ibid

 4   Ibid

 5   Ibid

 6   [2020] FWC 3275

 7   PR720411

 8   Declaration of Results dated 30 July 2020

 9   See section 459 of the Act

 10   Statutory declaration of Martin de Rooy dated 20 August 2020

 11   Ibid

 12   Email to Chambers of Gostencnik DP, dated 21 August 2020 at [6]

 13   Ibid at [4]

 14   Ibid at [6-7]

 15   [2015] FWCFB 379

 16   Email to Chambers of Gostencnik DP, dated 21 August 2020 at [3],[5]

 17   Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Unionand Others (2015) 257 IR 5 at 69; [2015] FWCFB 210 at 57

 18   Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368; Application by NUW [2016] FWC 6262 at 25

 19   [2015] FWCFB 379

 20   Ibid at [45]; [49]