United Workers' Union v Coles Group Supply Chain Pty Ltd

[2019] FWC 8219

[2019] FWC 8219

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Coles Group Supply Chain Pty Ltd
(B2019/1270)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 11 DECEMBER 2019

Proposed protected action ballot of employees of Coles Group Supply Chain Pty Ltd; whether there is a notification time in relation to the proposed agreement; whether employer had agreed to bargain; application dismissed.

[1] On 15 November 2019, I dismissed an application made by the United Workers’ Union (UWU) under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) of certain employees of Coles Group Supply Chain Pty Ltd (Respondent) currently covered by the Coles Goulburn (NUW) Distribution Centre Enterprise Agreement 2016 (Goulburn Agreement). 1 I decided to dismiss the applicationas I was not persuaded that there had been a notification time in relation to a proposed enterprise agreement.2 In a decision dismissing the application published on 15 November 2019, I said that reasons for my decision would follow in due course. These are my reasons for that decision.

[2] The application was lodged on 4 November 2019 and on 6 November 2019 the Respondent advised that it objected to the application on the basis that there had been no notification time in relation to the proposed enterprise agreement. Directions were thereafter issued and the matter was listed for hearing on 14 November 2019.

[3] Pursuant to s.437(2A) of the Act, a bargaining representative of an employee who will be covered by a proposed enterprise agreement cannot apply to the Commission for a PABO unless there has been a notification time in relation to the proposed enterprise agreement. There is no dispute that the UWU is a bargaining representative of certain employees of the Respondent, however, the issue in dispute is whether there has been a notification time in relation to the proposed enterprise agreement.

[4] The legislative note to s.437(2A) refers to the definition of ‘notification time’ in s.173. Relevantly, s.173(2)(a) of the Act provides that the notification time for a proposed enterprise agreement is the time when the employer agrees to bargain, or initiates bargaining, for the agreement.

[5] A Full Bench of the Commission in The Maritime Union of Australia v Maersk Crewing Australia Pty Ltd 3dealt with the purpose and construction of s.437(2A) of the Act and relevantly concluded as follows:

“1. Subsection 437(2A) provides that an application for a PABO, under s.437(1), cannot be made unless there has been a ‘notification time’ (within the meaning of s.173(2)) in relation to the enterprise agreement proposed by the PABO applicant. The subsection does not require there to have been a notification time for the particular enterprise agreement proposed by the PABO applicant. It is sufficient that there has been a notification time ‘in relation to’ the agreement proposed by the PABO applicant.

2. Subsection 437(2A) was enacted for a limited purpose – to overcome the effect of the decision in J.J Richards and ensure that protected industrial action cannot be taken until after bargaining has commenced – that is, after the time when the employer agreed to bargain, or initiates bargaining (or one of the other circumstances constituting the ‘notification time’ within the meaning of s.173(2)). Hence, for the purposes of s.437(2A), the commencement of bargaining is defined by reference to s.173(2).” 4

[6] At the time of hearing this application, it was uncontroversial that a majority support determination, scope order or low-paid authorisation had not been made in relation to any proposed enterprise agreement relating to the Goulburn site. Therefore, the Commission must, as a matter of jurisdictional fact, decide whether there is a notification time within the meaning of s.173(2)(a) of the Act.

[7] The UWU says that following an announcement by the Respondent of its intention to close three distribution centres, 5 the UWU and the Respondent commenced discussions in February 2019 about severance arrangements for the affected employees of the distribution centres, one of which was the Goulburn site.6 An in-principle agreement was reached between the parties on 11 July 2019 which proposed to increase severance payments to employees at the affected distribution centres, however, it was conditional on a majority of employees at each site voting in favour of the deal.7 Clause 13 of the in-principle agreement stated that the change to Goulburn team members’ redundancy entitlement would be subject to a majority of team members ‘approving a variation to the existing Goulburn EA.’ The first vote held at a site in Sydney failed and as a result the discussions were said to be abandoned.8

[8] Mr Robert Rondinelli, Head of Employee Relations and Compliance for the Respondent, gave evidence that the Respondent met with officials of the UWU to discuss a sensible and proactive path forward. He said from his observations they were not interested in bargaining over a new enterprise agreement when there was a real probability that the site would close shortly after the nominal expiry date of the Goulburn Agreement, being 7 June 2019. Therefore, he said that that the parties met to seek to vary the Goulburn Agreement by extending the life of the agreement and reflecting any agreed wage increases and/or redundancy terms. 9

[9] In relation to the other two sites, Mr Rondinelli said it was agreed that new agreements would be negotiated and Notices of Employee Representational Rights (NERRs) were issued to employees in respect of proposed agreements for the two sites. Given that the Goulburn site was going to be dealt with by way of a variation, no NERR was issued to employees by the Respondent in respect of any proposed agreement for that site. 10

[10] Mr Rondinelli said that following the unsuccessful vote, on or around 9 August 2019, Mr Martin Cartwright of the UWU contacted him and they discussed that despite the unsuccessful vote the Respondent intended to continue to discuss the variation to the Goulburn Agreement. Mr Rondinelli said he explained to Mr Cartwright that he understood that the nominal expiry date of the agreement had passed and that team members would be concerned that if their employment ended their wage and redundancy entitlements would be pursuant to the Goulburn Agreement and not the terms in the in-principle agreement. He said he notified Mr Cartwright that the Respondent was willing to continue discussions around enhanced terms at the Goulburn site and would be in contact in relation to future meetings. 11

[11] Mr Rondinelli gave evidence that on 19 August 2019, Mr Cartwright contacted him and put him on notice that he would be sending a log of claims that would form the basis of continuing to hold variation discussions at the Goulburn site by reflecting matters previously discussed ‘with a few extras.’ 12

[12] The UWU served a log of claims on the Respondent by email on 19 August 2019. 13 The UWU submits that the following in the log of claims served on the Respondent is consistent with a request to enter bargaining for a new enterprise agreement for the Goulburn site:

“a. the employees’ request that the union ‘..forward this log of claims to you for a new agreement..’, and;

b. confirmation that the union ‘.. is a bargaining representative for those employees to be covered by the proposed agreement..’, and;

c. a claim (Claim 2) for the agreement to be a ‘full, comprehensive agreement ...to the extent that the provisions can be legally contained in the proposed agreement ..’, and;

d. confirmation that the union wishes ‘to commence bargaining and would like to meet you or your company’s designated representatives to discuss the above as soon as possible’, and;

e. an enquiry as to whether the company had issued a NERR and a request for a copy.” 14

[13] Since serving the log of claims, four meetings have been held between the parties, with the main issue discussed being severance pay. 15

[14] Mr Rondinelli said that the first meeting occurred on 13 September 2019 and in attendance was himself, Mr Stewart Kennedy (Goulburn Distribution Centre Manager), Mr Sean Atkinson (People & Culture Manager), Mr Cartwright and Mr Mark Corcoran from the UWU and approximately 8 delegates from the Goulburn site. He recalled that he acknowledged that the Respondent was now focused on negotiating a variation to the Goulburn Agreement in light of the unsuccessful vote and that they were not engaging in any negotiations at that meeting in relation to the other two sites as that would occur at a relevant time in the future. 16 Further, Mr Rondinelli said he had told the officials that the Respondent had not prepared its own log of claims nor did it intend to do so, that the Respondent was seeking a variation to the Goulburn Agreement and was committed to finalising that.17 He then responded to each of the claims in the log.

[15] At the second and third meetings held on 25 September 2019 and 13 October 2019, Mr Rondinelli said he continued to discuss the log in the context of a variation. The same representatives for the Respondent were in attendance for both meetings. For the second meeting Mr Cartwright, Mr Corcoran and Mr Ghazi Noshie represented the UWU and for the third meeting Mr Cartwright and Mr Noshie were in attendance. 18

[16] At the meeting on 30 October 2019, Mr Rowan Payne attended with Mr Noshie in place of Mr Cartwright. Mr Rondinelli said that neither Mr Payne nor anyone based at the Melbourne offices of the UWU had any interaction with the Respondent during the negotiation for the in-principle agreement or closure terms or after the unsuccessful vote until the meeting on 30 October 2019. 19 Mr Rondinelli said he provided Mr Payne with an overview of the history of the discussions between the parties, the context of the negotiations and then stated that the Respondent is continuing to seek a variation to the Goulburn Agreement.

[17] The UWU contends that the conduct of the Respondent and the nature and subject of the negotiations meetings are consistent with the behaviour of parties engaging in bargaining for an enterprise agreement. It contends this is so because the log of claims has been discussed, concessions have been made, the Respondent has at no stage rejected the request to begin bargaining for a new enterprise agreement and at no stage the Respondent made it clear that it was only willing to negotiate for a variation of the Goulburn Agreement. 20 The UWU submits that the Respondent agreed to bargain at the first bargaining meeting following the lodgment of the log of claims being 25 September 2019 when it says the Respondent responded to the log of claims.21

[18] Mr Payne who gave evidence for the UWU, only attended one of the four bargaining meetings on 30 October 2019. 22 He gave evidence that at that meeting a variation to the Goulburn Agreement was not discussed and his understanding was that it was for the purpose of bargaining for a new enterprise agreement. He also gave evidence that during the meeting, the Respondent’s representative Mr Rondinelli anticipated that a PABO application would be lodged with the Commission.23 Mr Rondinelli’s evidence was that after Mr Noshie contemplated a protected action ballot process he responded by stating that team members need to think carefully before embarking upon industrial action and that the parties were better off continuing to hold discussions to try resolve the last primary issue of redundancy pay.24

[19] The UWU did not lead any evidence from Mr Cartwright disputing the evidence given by Mr Rondinelli that the Respondent had not agreed to bargain for a new enterprise agreement and therefore there had not been a notification time. During the hearing I raised with Mr Payne that he may make an adjournment application to enable him to have an opportunity to have Mr Cartwright give evidence to support the UWU’s contentions but he elected not to make such an application and decided to proceed with the evidence as given. Mr Rondinelli was present at all meetings and led the discussions between the parties in relation to the Goulburn site. The explanation for Mr Cartwright’s failure to give evidence is not satisfactorily explained, particularly in light of the invitation for an adjournment to enable Mr Cartwright to be called to give evidence. As there has been no evidence adduced by the UWU to dispute Mr Rondinelli’s evidence, I accept his evidence. Moreover, I draw an inference given the unexplained failure to call Mr Cartwright that his evidence would not have assisted the UWU. It appears that all discussions between the parties up until the time of hearing this application has been in relation to a variation to the Goulburn Agreement and not a new enterprise agreement at the Goulburn site.

[20] It is accepted that for the purposes of assessing whether an employer has relevantly agreed to bargain, such an agreement to bargain may be inferred from the conduct of the employer. Although the log of claims references a ‘new agreement’, all that may be said about the log of claims sent to the Respondent is that the UWU confirmed that it sought to commence bargaining. However, the Respondent did not respond in writing, 25 nor did it agree to bargain for a new agreement either expressly or through any conduct, for example, by issuing a NERR to employees. Although the issuing of a NERR is not determinative of the fact that there is a notification time, it can be said in the circumstances of this case taking into account Mr Rondinelli’s evidence and the absence of evidence from Mr Cartwright, that the absence of a NERR is consistent with Mr Rondinelli’s evidence that the Respondent has not agreed to bargain for a new enterprise agreement.

[21] Based on the evidence of the relevant dealings between the UWU and the Respondent set out above, I find that the Respondent has not, relevantly, agreed to bargain for a proposed agreement at any time. It seems to me that the Respondent has at all times maintained a position that it was negotiating for a variation to the Goulburn Agreement. It appears that the Respondent does not wish to engage with the UWU for a new enterprise agreement at the Goulburn site given that it will be closing shortly. It has not agreed and does not agree to bargain for a new agreement.

[22] In the circumstances, I do not consider that there has been a notification time in relation to the proposed agreement with the consequences that the UWU cannot make an application for a PABO. As earlier indicated in my decision of 15 November 2019, for the reasons stated the application is dismissed.

DEPUTY PRESIDENT

Appearances:

R Payne for the Applicant.

N Barkatsas for the Respondent.

Hearing details:

2019.

Melbourne:

November 14.

Printed by authority of the Commonwealth Government Printer

<PR714851>

 1   AE419530

 2   [2019] FWC 7640

 3   [2016] FWCFB 1894

 4   Ibid at [56]

 5   Exhibit 3 at [8]

 6   Outline of Applicant’s submissions dated 11 November 2019 at [2]

 7   Exhibit 3, Annexure RR-1

 8   Outline of Applicant’s submissions dated 11 November 2019 at [3]-[4]; Exhibit 3 at [20]

 9   Exhibit 3 at [11]-[13]

 10   Ibid at [14]-[16]

 11   Ibid at [21]

 12   Ibid at [22]

 13   Outline of Applicant’s submissions dated 11 November 2019 at [5]; Exhibit 2, Annexure; Exhibit 3, Annexure RR-2

 14   Ibid at [19]

 15   Ibid at [6]

 16   Exhibit 3 at [27]-[29]

 17   Ibid at [31]

 18   Ibid at [39]

 19   Ibid at [42]-[43]

 20   Outline of Applicant’s submissions dated 11 November 2019 at [21]-[24]

 21   Transcript of proceedings at PN167-PN172

 22   Ibid at PN37-PN40

 23   Exhibit 2 at [2]-[5]

 24   Exhibit 3 at [47]; Transcript of proceedings at PN153 and PN156

 25   Transcript of proceedings at PN127