United Workers' Union v Aryzta Australia Pty Ltd T/A Aryzta
[2022] FWC 89
•20 JANUARY 2022
| [2022] FWC 89 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
United Workers’ Union
v
ARYZTA Australia Pty Ltd T/A ARYZTA
(B2022/10)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 20 JANUARY 2022 |
Proposed protected action ballot of employees of ARYZTA Australia Pty Ltd (Vic)
On 12 January 2022 the United Workers’ Union (the Applicant) made two applications B2022/10 (first Application) and B2022/11(second Application) under s.437 of the Fair Work Act 2009 (the Act) for protected action ballot orders.
On 13 January 2022, ARYZTA Australia Pty Ltd (the Respondent) notified the Fair Work Commission (Commission) that it objected to the Applications on the basis that the Applicant has not been, and is not, genuinely trying to reach agreement with the Respondent.
Section 441 of the Act provides that the Commission must, as far as practicable, determine the application within 2 working days after the application is made. The Applications were listed for conference however they did not resolve. At the conclusion of the conference the matters proceeded to a Mention/Directions hearing. During the directions hearing the parties requested that the matters be set down for hearing on 19 January 2022. The request was granted and directions were issued, the matters were listed to be heard and determined concurrently.
At 7:03pm on the 18 January 2022 the Applicant notified my Chambers that a bargaining meeting had been scheduled for 20 January 2022. In the interests of maintaining a collaborative relationship the Second Application was discontinued. The First application proceeded to hearing.
The Applicant filed and served submissions and a statement of Mr Tim Benfatto, an Organiser at the UWU. Mr Benfatto has been involved in the enterprise bargaining negotiations with the Respondent since their commencement.
The Respondent filed and served submissions and a statement of Ms Montse Martos, Human Resource Manager at ARYZTA Australia Pty Ltd. Ms Martos did not attend the first bargaining meeting however she was present for all subsequent meetings on:
(a) 7 July 2021,
(b) 28 July 2021,
(c) 23 November 2021,
(d) 30 November 2021,
(e) 7 December 2021, and
(f) 14 December 2021.
There were no contentions or objections raised as to the content of the evidence contained in the witness statements of Mr Benfatto and Ms Martos by either of the parties to the proceedings. The parties consented to the witness statements being entered into evidence and the witnesses were not required to be cross-examined on their evidence.
The orders sought by the Applicant are in relation to negotiations for a new enterprise agreement to replace the ARYZTA Australia Pty Ltd (Vic) Agreement 2020 (the Agreement).
The Respondent objects to the application submitting that the Applicant seeks the inclusion of a non-permitted matter and is therefore not genuinely trying to reach agreement.
Legislative Framework
Section 437 enables a bargaining representative to apply for a protected action ballot order (PABO),subject to the restrictions in s. 437(2A) and s. 438. Section 443 sets out the limited circumstances in which a PABO can be made. Section 443 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).”
The Commission does not have discretion in relation to whether to make an order if it is satisfied that there has been a valid application made and that the applicant has been genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
Relevant facts and circumstances
On 31 May 2021, the Respondent gave notice to the relevant employees pursuant to s.173 of the Act and the Applicant was duly appointed as a bargaining representative in relation to the Agreement.
On 23 June 2021, the Applicant presented its Log of Claims. The log of claims contained 10 itemised claims. Claim 4 and Claim 10 as set out in the log of claims are as follows:
“4. That Aryzta is committed to job security for all workers-
· Clear pathways for casual workers to transition to permanent positions;
· Clear pathways for directly employed workers to transition through employment categories, including part-time workers to transition to full-time employment;
· Aryzta shall only use agency casual workers if they receive the same rates of pay and conditions as direct employees; and
· Aryzta will allow delegates and Union representatives to meet with casual workers during their inductions on paid time.
10. Union rights including-
· Recognising the role of union delegates and paid training leave for delegates;
· Paid time to attend union meetings;
· Payroll deductions of union dues;
· Allow the union to induct new employees and casuals; and
· Site access for union representatives separate to the ROE provisions”
On 30 November 2021, the parties exchanged draft proposed clauses relating to a number of claims. On 10 December 2021, Mr Paul Atkinson emailed Mr Benfatto providing him with updated versions of the draft wording for the proposed “JCC and Rights of entry” clauses. An in-principle agreement was reached by the parties in relation to matters contained within claims 4 and 10 of the Applicants log of claims, now known to be the Version 2- Right of Entry Document (V2 ROE)[1]. The V2 ROE document contains two clauses, clause 1 consists of a number of paragraphs being (a)- (h). Clause 1(i) of the V2 ROE document provides the following:
“(i) Induction of new employees
With prior consent by the Company, UWU delegates and UWU officials will be able to meet with new employees and any labour hire workers performing work that would otherwise be covered by this agreement for the purposes of introducing and explaining this agreement.”
The Respondent submits the V2 ROE document contains non-permitted matters. Ms Martos submits she was not aware at the time the parties reached an in-principle agreement that the proposed clause contained a non-permitted matter.
At no time during the negotiations did the Respondent express concerns that any of the Applicants claims were about non-permitted matters. In his witness statement Mr Benfatto states that to the best of his knowledge and belief the claims being pursued by the Applicant were about permitted terms in an enterprise agreement.
On 12 January 2022, the Application was made. Prior to the lodgement of the application there were two claims that remained outstanding between the parties. The outstanding claims were overtime pay provisions and the annual wage rates.
On 13 January 2021, Ms Martos sought legal assistance for the first time in relation to the Agreement to respond to the Application. It was at this time the Respondent became aware that some of the contents within the V2 ROE document contained possible non-permitted matters.
After receiving legal advice, the Respondent objected to the PABO application on the basis that the Applicant was pressing claims that included non-permitted matters.
Consideration
The Respondent contends that the Applicant has not been genuinely trying to reach agreement because the Applicant is advancing claims about labour hire workers that relate to non-permitted matters and, as such, the Commission cannot be satisfied that the Applicant has been, and is, genuinely trying to reach agreement with the Respondent.
The contentious aspect of the Applicants log of claims is that the Applicant sought to have the Respondent allow delegates and the Union representative meet with labour hire workers during their inductions on paid time. The Respondent submits that, as labour hire workers are not a party to the agreement, matters pertaining to their remuneration cannot form part of the agreement.
The Applicant submits the claims as set out in their log of claims were to the best of their knowledge permitted matters as they pertained to the employee’s job security and that a claim for labour hire workers and casuals to receive benefits and wages no less than those in the proposed enterprise agreement has previously been determined to be a permitted matter.
During these proceedings the Applicant submitted that the V2 ROE document was agreed to in-principle by both parties prior to the parties becoming aware that the clause may contain non-permitted matters. The Applicant submitted that whilst at the time of the negotiations they held the belief that the claim sought related to the job security and safe induction processes for casual and other labour hire workers, it was willing to seek legal clarity as to the proposed clause and held a willingness to amend the previously agreed clause as necessary.
In his statement, Mr Benfatto submits that the Union did not intend to advance claims about non-permitted matters. Mr Benfatto submits that the Applicant is committed to working on the previously in-principally agreed clauses with the Respondent to ensure that the replacement Agreement does not contain any non-permitted matters within the meaning of s. 172 of the Act.
During proceedings Ms Lee for the Applicant made the following submission:
“I reiterate that from this point forward the Union has no wish to put any provisions within the agreement that can’t be enforced, it is against our members best interest to have unenforceable provisions in an agreement.”
Ms Lee was asked to confirm the Applicants position in relation to the V2 ROE document. Ms Lee responded stating:
“Well our position is we are happy to let that particular provision go, we want to work on it more with the Respondent to ensure that it can be enforceable.”
The Respondent submits that although the Applicant has stated they are happy to “let the provision go”, or have the provision as currently drafted in the V2 ROE document redrafted, they have not let the claim itself go. The Respondent submits the Application is still not capable of being granted because the Applicant continues to pursue its log of claims. The Respondent submits that the Applicant’s log of claims seeks to have labour hire workers attend inductions with union delegates on paid time. They submit the Applicant’s log of claims contains matters that relate to the remuneration of labour hire workers and therefore should not be included in the agreement.
The Respondent submits that the particular claim itself, being that labour hire workers attend inductions on paid time, is an impediment to the Application being approved. The Respondent argues that the provision is not related to job security, rather it is a provision that relates to the remuneration of labour hire workers when meeting with a delegate on site during an induction.
The Applicant argues that the claim as set out in the log of claims, which has been articulated as principles, is a separate matter from the draft V2 ROE document and the principles articulated in the log of claims relate only to permitted matters. The claim as set out in the log of claims states that “Aryzta will allow delegates and Union representatives to meet with casual workers during their inductions on paid time.” The Applicant submits that whilst paid time usually refers to the paid time for the delegates, it would be a permissible matter if it was to pursue a claim that casual and other labour hire workers would be entitled to terms no less beneficial than direct hire employees.
Genuinely trying to reach agreement - non permitted matters
Other than the exception of the non-permitted matters allegation, there has been no suggestion that the Applicant has not otherwise been genuinely trying to reach an agreement with the Respondent.
The Full Bench in Esso Australia Pty Ltd v AMWU[2], pointed out that there are a number of ‘contextual matters’ that are important in considering the significance to be attributed to a union’s pursuit of non-permitted matters.
The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular bargaining.[3] In this matter, taking into consideration the circumstances of the bargaining, I am not persuaded that the Applicant was not, and is not, genuinely trying to reach agreement.
I accept that neither party was aware the V2 ROE document agreed in principle may contain non-permitted matters. It is evident both the Respondent and the Applicant initially considered the contents in the V2 ROE clause to be capable of agreement between the parties.
Regardless, the Applicant by its undertaking given during these proceedings has dispersed of the concerns pertaining to the current wording in the V2 ROE document. The Applicant has undertaken to work with the Respondent to amend the clause so as to contain only permitted matters.
The Respondent’s remaining contention is with the log of claims being pursued by the Applicant. The question arises as to whether the Applicant is pursuing non-permitted matters and if so whether its claim for a non-permitted matter affects the genuineness of the efforts of the parties to reach an agreement.
The log of claims submitted by the Applicant seeks to have agency (labour hire) employees receive the same rates of pay and conditions as direct employees. I accept the Applicant’s submission that this portion of the claim is referable to job security of employees and is a permitted matter.
The contentious aspect of the claim being the latter part of the claim is expressed as allowing delegates and Union representatives to meet with casual workers during their inductions on paid time. It can be inferred that the latter part of the claim refers to both direct hire and labour hire casuals. The Applicant during these proceedings submitted the principle of the claim is to ensure the job security and safety of casual employees and labour hire contractors. How that claim would look in its practical terms was still to be determined between the parties given that the Applicant has abandoned the present wording within the V2 ROE document.
The principle of the claim the Applicant is seeking is to have casual and labour hire workers hired on terms and conditions no less favourable than the conditions of the direct hire employees. The Applicant undertook that the claim would not be pursued in terms that could legally be construed as a non-permitted matter as it was not in the best interests of its members to do so.
Taking into account the overall assessment of the factual circumstances I have formed the view that there is sufficient ambiguity around the status of the claim, therefore I am not persuaded the claim as expressed in the log of claims is clearly a non-permitted matter. Because of the ambiguity around the status of the claim, I am not persuaded the log of claims would prohibit the granting of an order in the terms sought by the Applicant.
Decision
Having regard to all of the circumstances of the bargaining in the present matter and the evidence before me, I am satisfied that the Applicant, as a bargaining representative for the proposed agreement has been and is genuinely trying to reach agreement with the Respondent. I am also satisfied the restrictions on making of an application under section 437(2A) and 438(1) are not applicable. I am satisfied that the statutory criteria for making an order have been met.
An order has been published separately to this decision in PR737598.
COMMISSIONER
Appearances:
J Lee of the United Workers’ Union for the applicant.
M Roucek of FCB Workplace Law for the respondent.
Hearing details:
2022.
Melbourne:
January 19.
[1] Exhibit R1, Annexure MM2
[2] [2015] FWCFB 210 at [72]
[3] Ibid
Printed by authority of the Commonwealth Government Printer
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