United Workers' Union v Brand Developers Aust Pty Ltd
[2021] FWC 5647
| [2021] FWC 5647 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
United Workers' Union
v
Brand Developers Aust Pty Ltd
(B2021/876)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 10 SEPTEMBER 2021 |
Proposed protected action ballot of employees of Brand Developers Aust Pty Ltd
On 8 September 2021 an application was made by the United Workers’ Union (UWU) under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Brand Developers Aust Pty Ltd (company).
The company opposed the making of a protected action ballot order on the basis that the UWU had not been, and was not, genuinely trying to reach agreement with the company for a new enterprise agreement. The matter was allocated to my chambers on 9 September 2021. I listed the application for hearing at 1.00pm on 10 September 2021. Mr Conor Serong appeared for the union. Mr Joppu Varghese appeared for the company. At the conclusion of the hearing, I advised the parties that I was satisfied that the requirements for the issuing of an order had been met and briefly summarised my reasons. I stated that I would shortly issue a protected action ballot order, as well as a written decision, which I now deliver.
The UWU submitted that its application and the declaration of its organiser, Mr Michael Power, demonstrated that the statutory requirements for the making of a protected action ballot order had been satisfied: a valid application had been made under s 437; there had been a ‘notification time’ in relation to the proposed agreement, namely a majority support determination of 16 April 2021 (see [2021] FWC 2105); and the union had been and was genuinely trying to reach an agreement with the employer of the employees to be balloted (see s 443). The union noted that no enterprise agreement currently covers the relevant employees and that the restriction in s 438 of the Act is therefore not relevant. The UWU further submitted that it had complied with the requirement of s 440 by providing a copy of the application to the employer and to the Australian Electoral Commission. It contended that, because all of the relevant requirements had been met, the Commission was required by s 443 to make the order.
The company contended that the UWU had not been, and was not, genuinely seeking to reach an agreement. It submitted that this lack of genuineness was reflected in the UWU’s bargaining claims, which were uncommercial and would, if accepted, make the business unviable, and that this had been explained to the UWU at the first bargaining meeting and also in writing. The company submitted that, after the second bargaining meeting, the UWU had provided a short update to its log of claims, in which it had revised its position in certain respects, but that the union had not provided the company with any substantial information to explain its log of claims, nor had it provided any considered feedback on the matters raised by the company. The company said that during a third bargaining meeting, the UWU failed to engage meaningfully with the information that the company had provided and continued to press its uncommercial claims.
The company further submitted that the parties had had only three bargaining meetings, that the UWU had not provided a draft agreement, and that in the circumstances the application for a protected action ballot order was premature. It contended that the UWU had unreasonably insisted on speaking with the company’s CEO, even though the company’s representative in the negotiations, Mr Joppu Varghese, has complete authority in the matter. The company also contended that certain employees had reported to Mr Varghese that they were unhappy with the UWU and that this suggested that the union was not acting in employees’ interests or genuinely trying to reach agreement with the company. More generally, the company submitted that the UWU had failed to explain its position and simply repeated its bargaining claims, and that it had not responded to the issues raised by the company.
In response to these matters, the UWU maintained that its efforts to reach agreement with the company had been and were genuine. The union had served a log of claims on the company on 2 June 2021, and there had been four, not three, negotiation meetings, at which these claims had been discussed. The UWU submitted that, although the parties remain apart on a number of important issues, including the question of wage increases, rostered days off, and a union rights clause, progress had nevertheless been made. The evidence of Mr Power was that the union had compromised by withdrawing certain claims, and revising others, including its wages claim. Mr Power affirmed in his declaration, which he adopted in his sworn evidence, that the union had been and was genuinely trying to reach an agreement with the company.
Section 443(1)(b) requires that, before a protected action ballot order can be issued, the Commission must be satisfied that the applicant ‘has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted’. I am comfortably satisfied that this is the case in the present matter. It is clear that the union wants to reach an agreement with the company to cover relevant employees, and that it has been and is genuinely trying to accomplish this goal. I accept Mr Power’s evidence in this regard. The fact that the company considers the UWU’s claims to be excessive does not in my opinion call into question the genuineness of the union’s efforts to reach agreement. If the claims advanced by the UWU were fanciful, there might be some question about whether it was genuinely trying to reach agreement, but that is not the case here. Although the UWU’s initial log contained a claim for 10% per annum pay rises over three years, this was clearly an ambit claim, and it has already been revised down to 4% per annum.
There have been four enterprise bargaining meetings at which the terms of the proposed agreement have been discussed. This has resulted in some progress towards an agreement, and some matters have been agreed. The parties remain quite a way apart on key conditions of employment that will be included in the agreement. But that does not mean that either party is not genuinely seeking to reach an agreement. There is no evidence or suggestion that the union is pursuing some ulterior or extraneous purpose. I appreciate that the company considers a number of the union’s claims to be unreasonable, but this does not mean that the claims are not genuine. The union is entitled to drive a hard bargain. The company is entitled to do the same. The Act does not impose any obligation on a party to agree to claims.
I am not persuaded that the UWU has failed to consider, or respond to, the company’s position. The UWU has revised its claims for wages and redundancy benefits, and has withdrawn other claims, including its claim for a term imposing a ratio of permanent employees to casual and labour hire workers. It is apparent that the company has provided detailed responses to each of the union’s claims, principally explaining why the company does not accept various claims. The UWU’s articulation of its position appears so far to have been much briefer, but there is nothing wrong with this. I note that the UWU has recently identified for the company four of its 17 claims that are the highest priority for employees.
The company’s contention that certain employees are dissatisfied with the union has no bearing on the question of whether the UWU has been, and is, genuinely trying to reach an agreement with the company. The union represents members at the site and genuinely wants to reach an agreement with the company for an enterprise agreement that covers those members. Further, the fact that the UWU has not provided a draft agreement to the company is hardly surprising, given that bargaining is at an early stage and many terms and conditions remain to be agreed. The absence of a draft agreement is not suggestive of an absence of genuineness in the union’s efforts to reach an agreement with the company. As to the company’s contention that the UWU had insisted on the participation of the company’s CEO in bargaining meetings, Mr Power gave evidence that, although the union would like the CEO to be involved, this was not a precondition to further bargaining. I accept Mr Power’s evidence.
Finally, I reject the company’s contention that the application is premature. Section 443 contains two temporal dimensions. The Commission must be satisfied that the applicant for an order has been, and is, genuinely trying to reach agreement. The use of the present perfect continuous tense connotes that at least some bargaining must have occurred. In the present case, it clearly has. More generally, there is nothing inappropriate or unusual about a union applying for a protected action ballot order at an early stage of bargaining. This is merely the first step in attracting statutory protection for industrial action in support of an enterprise agreement. It does not mean that such action will necessarily take place.
Having considered all of the materials filed and the evidence given in this matter, as well as the submissions of the parties presented at the hearing, I was satisfied at the time of making the order that the UWU had been, and was, genuinely trying to reach an agreement with the company. All of the requirements for the making of a protected action ballot order had been met. The Commission was therefore required by s 443 to make a protected action ballot order.
An order was issued separately earlier this afternoon in PR733713.
DEPUTY PRESIDENT
Appearances:
C. Serong for the UWU
J Varghese for Brand Developments Aust Pty Ltd
Hearing details:
2021
Melbourne
10 September
Printed by authority of the Commonwealth Government Printer
<PR733712>
0