United Workers' Union v Compass Group (Australia) Pty Ltd t/a Medirest and Compass Group Healthcare Hospitality Services Pty Ltd t/a Medirest

[2020] FWC 4845

[2020] FWC 4845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Compass Group (Australia) Pty Ltd t/a Medirest
and
Compass Group Healthcare Hospitality Services Pty Ltd t/a Medirest
(B2020/511)

DEPUTY PRESIDENT MANSINI MELBOURNE, 9 SEPTEMBER 2020

Proposed protected action ballot – whether application made prematurely – whether applicant has been, and is, genuinely trying to reach an agreement.

[1] On 7 September 2020, the United Workers’ Union (UWU) filed an application for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (Act).

[2] I have determined that the statutory criteria are met and therefore the Commission must make an order pursuant to s.443 of the Act. The reasons for this decision follow.

Context

[3] The application concerned a proposed ballot of employees of Compass Group (Australia) Pty Ltd and Compass Group Healthcare Hospitality Services Pty Ltd (both trading as, and hereinafter referred to collectively as, Medirest). The employees in question are those who would be covered by the proposed enterprise agreement (being the Compass Group (Medirest ACT Hospital Cleaners) Enterprise Agreement 2020 (the Proposed Agreement)) and for whom the UWU is a bargaining representative. 1

[4] Section 441 of the Act provides that the Commission must, as far as practicable, determine an application for a PABO within two working days after the application is made. The application was made on 7 September 2020 and, in response to correspondence from the Commission, an objection was raised by Medirest. The matter was allocated to my chambers on 8 September 2020 and was listed for hearing at 2.30pm on 9 September 2020.

[5] Mr Alex Snowball of the UWU appeared for the union at the hearing and was deponent to the unwitnessed statutory declaration which accompanied the application. Ms Sarah Ellis, Lead Organiser of the UWU, provided a witness statement on behalf of the UWU which was affirmed at the hearing. Mr Andrew Chamberlain, National Workplace Relations Manager of Compass Group (Australia) Pty Ltd, appeared for Medirest. Mr Chamberlain did not file any evidence on behalf of the Respondent and did not raise any objection to or seek to test the UWU’s evidence in cross examination.

Statutory framework

[6] Section 437 of the Act enables a bargaining representative to apply for a PABO. Subject to the restrictions in s.437(2A) and s.438(1) (which are not presently relevant), the Commission must make a PABO in relation to a proposed enterprise agreement in the circumstances set out in s.443. Section 443 relevantly provides:

“443 When the FWC must make a protected action ballot order

(1) [When FWC must make a protected action ballot order]

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) [When FWC must not make a protected action ballot order]

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) [Content of protected action ballot order]

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.

(3A) [Ballot to be conducted expeditiously]

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.

…”

[7] Whether an applicant “has been, and is, genuinely trying to reach an agreement” within the meaning of s.443(1)(b) is a question of fact to be decided by reference to all of the circumstances of the bargaining in question. 2 It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.3 There are two temporal components to s.443(1)(b): the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement.

[8] In Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia, 4 the Full Bench adopted and referred to the majority in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia.5 The relevant passages are as follows:

“[87] In J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia Lawler VP and Bissett C gave consideration to evidentiary issues relevant to the question of genuinely trying to reach agreement within the meaning of s.443(1)(b). Lawler VP and Bissett C said:

…

[63]In circumstances where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act a finding that the applicant was not “genuinely trying to reach an [enterprise] agreement” within the meaning of s. 443(1)(b) will necessarily involve accepting evidence establishing that the applicant had some other, extraneous purpose in seeking the ballot. Indeed, when there is evidence from an applicant for a protected action ballot order that they have been and are “genuinely trying to reach an [enterprise] agreement” under the FW Act, it is difficult to conceive of circumstances where it could properly be found they were not, unless there is cross-examination or other evidence establishing that the applicant in truth has some other, extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act…

[88] The observations of the majority in J.J. Richards reproduced above should not be taken as meaning any more than in the usual course of events when an applicant leads relevant evidence on the question whether it is generally trying to reach an agreement, prima facie, that will be sufficient to establish that fact… 

[89] The majority in J.J. Richards also said:

[58]The expression “genuinely trying” in s.443(1)(b) is, clearly enough, concerned with the genuineness of the “trying”, the efforts, to reach the stated goal, namely an enterprise agreement that meets the requirements of the FW Act. It is directed at the authenticity of the applicant’s efforts to reach that goal. The genuineness or authenticity of an applicant’s efforts to reach that goal will turn on its motivation - the intention, object or purpose.”

Evidence and submissions

[9] The background to the application is set out in Ms Ellis’ witness statement of 9 September 2020.

[10] In early 2020, Medirest agreed to bargain for the Proposed Agreement.

[11] There have been five bargaining meetings in relation to the Proposed Agreement, on 25 June, 16 July, 23 July, 13 August and 28 August 2020. Ms Ellis is a bargaining representative for UWU members who would be covered by the Proposed Agreement and has participated in all but one negotiation meeting to date (she was not in attendance on 16 July 2020).

[12] Ms Ellis gave evidence that the UWU’s claims have been the subject of much discussion during the negotiation meetings and have been outlined to Medirest representatives and further explanation provided on specific claims where requested. In addition to bargaining meetings, draft clauses have been exchanged between the parties.

[13] Ms Ellis said that in principle agreement has been reached in relation to a number of claims including the introduction of a joint consultative committee, that the Cleaning Services Award 2020 would be the underpinning award, the inclusion of a casual conversion clause and “an ADO system”. Ms Ellis acknowledged there had been no discussion about a nominal expiry date but her evidence was that this is “not hugely important” to UWU members and the UWU is open to negotiating any nominal expiry date.

[14] A matter that is not yet agreed is the wages outcome. On 25 June 2020, the UWU requested a wages proposal which was ultimately forthcoming on 11 August 2020 (by email). On 13 August 2020, Medirest explained the wages offer and the UWU responded that it would need to discuss the proposal with its members however indicated the wages offer would not be acceptable to the members.

[15] During the course of bargaining to date, the UWU has held several report back discussions with its members to update them on the progress of negotiations and to seek their feedback on Medirest proposals. Ms Ellis gave evidence that the UWU held several discussions with members about the Medirest wages offer, the overwhelming view was that the members disagreed and wished to maintain their claim in relation to wages.

[16] On 21 August 2020, the UWU emailed Medirest and rejected the wages offer on the basis of member feedback. Reasons for the rejection were provided and the UWU’s claim was reiterated.

[17] In the most recent bargaining meeting, on 28 August 2020, Medirest provided further detail about its wages offer but the quantum of the offer was unchanged. During that meeting, the UWU rejected the wages offer and a further bargaining meeting was scheduled for 11 September 2020.

[18] After that meeting, the UWU sought further feedback from members who again said it was not acceptable to them. On 4 September 2020, the UWU emailed Medirest in which it advised that the offer was rejected and restated the UWU’s position.

[19] On 7 September 2020, the UWU caused this application for a PABO to be filed with the Commission.

[20] At the time of the hearing on 9 September 2020, the UWU confirmed that a further bargaining meeting was scheduled for 11 September 2020.

[21] Ms Ellis’ evidence provided on the day of the hearing was that “the UWU intends to continue to meet with Compass (Medirest) to progress negotiations and remains committed to eventually reaching agreement”.

[22] Medirest objects to this application for a PABO on the basis that it was made prematurely and the UWU has not met the requirement at s.443(1)(b) of the Act. Specifically it contends that, notwithstanding the UWU was not previously aware of the differential between employees’ current wages and the Medirest wages offer, the UWU dismissed the further clarification of the Medirest wages offer (as provided on 28 August 2020). Medirest essentially said that the swift and uninformed rejection of the Medirest wages offer in addition to “the haste with which this application was made” was indicative that the UWU had given little or no consideration to its wages offer and therefore the UWU can not establish that is has been and is still genuinely trying to reach an agreement. As I understand the submission made at the hearing Medirest asks the Commission to infer, by the UWU’s timing of making this application and what Medirest says is the “hurried” sequence of events, that the UWU is in fact pursuing the extraneous purpose of a “PR exercise” rather than genuinely trying to reach an agreement.

Genuinely trying to reach agreement

[23] Before a PABO can be issued, the Commission must be satisfied that the UWU has been, and is, genuinely trying to reach agreement with Medirest. I have considered the company’s objection to the application. In my view, for the reasons below, the matters raised by Medirest do not impinge upon the upon the genuineness of the UWU’s efforts to reach agreement with Medirest.

[24] It was not factually contentious, and I accept, that there have been five bargaining meetings since the parties agreed to bargain earlier this year.

[25] It is clear from the evidence that some progress has been made in bargaining. The UWU has presented claims, provided responses to requests for clarification and exchanged draft clauses with Medirest for inclusion in the Proposed Agreement. Ms Ellis’ evidence about this progress, as well as of in principle agreement on a number of claims being reached, was not disputed. I accept that some progress has been made in bargaining and that further negotiations are imminently scheduled.

[26] That the UWU quickly responded to the further clarification of the wages offer on 28 August 2020, without first consulting with all of its members, may be subject of some legitimate criticism. However even if that indication was initially swift, it was not misplaced. The evidence is that this rejection was consistent with the views of UWU members which was subsequently verified and a formal written rejection was subsequently provided on the basis of that further consultation.

[27] Some three days later, this PABO application was filed. The unchallenged evidence supports a finding that this PABO application is directed at advancing the UWU members’ claims. There is no evidence sufficient to draw an inference that the applicant in truth has some other, extraneous intention or is seeking something other than an enterprise agreement under the Act. Indeed, I find the evidence demonstrates the contrary.

[28] Further discussions are scheduled to take place on 11 September 2020. It is apparent that those further discussions are an opportunity to continue to discuss the wages offer, including the response on behalf of employees represented by the UWU, and may well advance an agreement being reached.

[29] To the extent that Medirest contends that this application is premature, it is not necessary to show that negotiations for the Proposed Agreement or an item of the Proposed Agreement have been exhausted before a PABO is made or that such action is a matter of last resort. 6 The central question is whether the UWU has demonstrated that it has been, and is, genuinely trying to reach agreement with the employer of the employees whom it proposes to ballot.

Conclusion

[30] Section 443(1) states that the Commission ‘must’ make a protected action ballot order in relation to a proposed enterprise agreement if an application has been made under s.437 and the Commission is 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”.

[31] Having regard to all of the circumstances of the bargaining, I am satisfied that the UWU, the applicant, has been, and is, genuinely trying to reach agreement with Medirest.

[32] I am satisfied that an application has been made pursuant to s.437 of the Act and that the restrictions on the making of an application under section 437(2A) and 438(1) are not applicable in the circumstances of this application. The other statutory criteria for the granting of a PABO in the application have been met.

[33] Pursuant to s.443(1) of the Act, a protected action ballot order is issued in PR722648.

DEPUTY PRESIDENT

Appearances:

Mr A. Snowball for the Applicant
Mr A. Chamberlain for the Respondent

Hearing details:

2020
Melbourne (by Video).
9 September 2020.

Printed by authority of the Commonwealth Government Printer

<PR722654>

 1   Email from the Respondents to the Commission dated 8 September 2020.

 2   Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union at [2015] FWCFB 210 at [57].

 3   Total Marine Services Pty Ltd v Maritime Union of Australia[2009] FWAFB 368 at [32]; (2009) 189 IR 407 at [32]; National Union of Workers (NUW), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Sakata Rice Snacks Australia Pty Ltd[2016] FWC 6262 at [25].

 4   [2014] FWCFB 1317.

 5   [2010] FWAFB 9963.

 6   CEPU and AMWU v Kraft Foods Ltd (2010) 197 IR 12 at [40].