United Workers' Union v Inghams Enterprises Pty Limited

[2023] FWC 2076

[2023] FWC 2076

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Inghams Enterprises Pty Limited

(B2023/854)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 23 AUGUST 2023

Proposed protected action ballot of employees of Inghams Enterprises Pty Limited

1. This is an application by the United Workers’ Union (UWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Inghams Enterprises Pty Limited (Inghams or Employer). 

1. On 18 August 2023, the Commission was advised that Inghams, in effect, objected to the Application. The substantive basis of objection was a contention that the UWU “did not make genuine attempts to reach an agreement.” This raises, in effect, the contention that the UWU has not met one the prerequisites for the granting of the application.

1. In the circumstances, I have conducted a hearing to deal with that aspect, and some other, largely drafting issues. Having done so, on 22 August 2023 I issued the order largely in the form as sought by the UWU with some modifications discussed with the parties. My reasons for doing so are set out herein.

1. Section 443 of the Act relevantly provides as follows:

“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).

… ….”

1. The UWU must demonstrate that it has met (and where relevant continues to meet) these requirements. The substantive issue contended by the Employer is whether the UWU has been and is genuinely trying to reach an agreement with it – s.443(1)(b) of the Act.

1. In support of its proposition that it has met s.443(1)(b), the UWU relied upon the statement[1] and oral evidence of Elizabeth Vergara, UWU Organiser, which sets out the steps taken in bargaining with the Employer. This includes the following context, events, and actions:

·  There are 2 union bargaining representatives involved in the negotiations for the proposed enterprise agreement: the UWU and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

·  The UWU served a log of claims in relation to the proposed agreement in March 2023.

·  Inghams provided its own proposals in mid-March 2023.

·  The UWU and AMWU are, in effect, acting as single barging unit.

·  The UWU has site delegates and these and the general membership have been consulted, largely through lunch time meetings and 1 mass meeting, on progress of the negotiations.

·  There have been at least 10 bargaining meetings and the UWU has been represented and participated in each meeting.

·  The UWU (and AMWU) have changed positions including by amending and withdrawing some claims.

·  An agreement proposed by Inghams was comprehensively rejected by a vote of employees in late July 2023.

·  Further meetings have been held and progress in the negotiations has been made since that time.

·  Despite an improved offer recently made by Inghams, which has addressed some of the major claims, there are some outstanding issues that presently prevent an agreement being reached between the bargaining representatives. The UWU has consulted its membership about these matters prior to providing a response.

·  Further bargaining meetings are proposed and the UWU will participate.

·  The UWU remains committed to reaching an enterprise agreement with Inghams.

1. The UWU also provided comprehensive written submission contending for the approach to be adopted to the present matter and addressing the stated issues raised by Inghams.

1. Inghams’ objection was largely based upon the following context and propositions:[2]

·   On 31 July 2023 Inghams conducted a ballot and had a no vote for the proposed enterprise agreement.

·   A bargaining meeting was held on 14 August 2023 with 3 union delegates and union officials.

·   Inghams at the meeting was informed by the UWU and AMWU that the primary matters which remained in contention were wages and breaks.

·   The UWU and AMWU did not state all the issues outstanding at the meeting.

·   At the meeting, Inghams asked what wages the employees were seeking, the UWU and AMWU stated they wanted to seek their members views and they were attending the meeting “to listen” to Inghams and “did not make any reasonable effort to bargain.”

·   The UWU and AMWU were “adamant” that their members would not consider a reduction of their existing four breaks. At the bargaining meeting, Inghams proposed to maintain the existing four breaks and made a new wage offer.

·   Inghams since that time has not received a response to the offer from the unions. Inghams proposed another bargaining meeting on 21 August 2023 received no response from the UWU and a decline from AMWU. Inghams has rescheduled the meeting to 24 August 2023.

·   The UWU or AMWU did not at any time indicate that they were intending to take protected industrial action.

·   The UWU lodged a protected action ballot order for Inghams WA site (Osborne Park and Hazelmere) “to coordinate with and maximise its protected action ballot for Inghams worksites located in South Australia, without having made genuine effort towards reaching an agreement at WA (Osborne Park and Hazelmere).”

·   Inghams is willing to continue bargaining and is of the view that a proposed agreement for the Osborne Park and Hazelmere site is close to completion.

1. In submissions, Inghams also expressed its frustration as to what it claimed to be the reliance of the UWU on the actions of the AMWU and the UWU’s lack of preparation and contribution at times. Further, it contended, in effect, that the application was unnecessary at this point as a means of advancing the negotiations and was being taken for an ulterior purpose – to support the bargaining at Inghams’ South Australian operations. These matters were all disputed by the UWU.

1. Ms Kavanagh, who represented the employer in the bargaining and the hearing of this matter, did not lead evidence but cross-examined Ms Vergara. I draw no adverse inference from this approach and have determined this matter having regard to the evidence before the Commission and the submissions advanced by the parties.

1. There is ultimately no significant dispute about the major objective facts of the matters. The subjective views about intent and the consequences of the events expressed in the propositions of both parties evident in their outlines above are in dispute and are largely matters for the Commission to determine. There was a dispute about whether Ms Vergara accepted an electronic invitation (issued on 16 August 2023) to attend a bargaining meeting scheduled by the Employer for 21 August 2023. In any event, the evidence is that by Friday 18 August, the AMWU, having consulted with the relevant UWU officials, had advised Inghams (copied to the UWU) that the Monday meeting was not suitable for any of the officials and proposed Thursday (24 August) instead. This was, in effect, a response on behalf of both unions.

1. The approach required as to whether a party has been, and is, genuinely trying to reach an agreement has been summarised, in effect, by the Full Bench in Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers’ Union.[3] This includes, as relevant to this matter:

·  While there is a relationship between the good faith bargaining requirements in s.228 of the Act and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.[4]

·  The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.[5] The Commission should have regard to all of the relevant facts and circumstances of the particular case.[6]

·  It is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement.[7]

·  The reference to the Commission being ‘satisfied’ means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant union. The expression ‘has been, and is’, imports temporal considerations. The Commission’s attention is thereby directed to the applicant’s prior conduct at the time the application for a protected action ballot order is determined.  Given the context the reference to ‘an agreement’ is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the Act.[8]

1. The expression “genuinely trying” has also been taken to be concerned with the genuineness or authenticity of the trying; that is, the efforts, by the applicant to reach the stated goal, being an enterprise agreement that meets the requirements of the Act.[9]

1. In this case, the evidence before the Commission supports the notion that the UWU has been and is genuinely trying to reach an agreement with Inghams. It has also meaningfully engaged and continues to engage with the bargaining process that has been underway for many months with the genuine objective of reaching an agreement. The fact that the UWU may have relied upon the AMWU to be more proactive at times in advancing claims, and did not always immediately respond with positions or counterproposals, is not an indicator that it is not genuinely seeking an agreement. Further, the evidence is that it has consulted with its members at appropriate points, including when the most recent proposal was advanced by Inghams, and doing so at that point was consistent with seeking to achieve an agreement. It has also not refused to attend meetings and there is no evidentiary basis for the proposition that the UWU is seeking to delay the bargaining or has some ulterior motivation in taking this application at this point in time.[10]

1. To the extent that Inghams’ position indirectly raises the notion that the UWU may not be meeting the good faith bargaining requirements of the Act, this has certainly not been made out. In any event, I have taken into account the concerns that are directly relevant to the determination of the present matter, where supported by the evidence.[11]

1. I would be open to the suggestion that progress in the negotiations has been made and remains possible without recourse to protected industrial action. However, this is not the test for a PABO to be issued and protected industrial action as part of bargaining, provided that the various statutory requirements have been met, is part of the scheme of the Act.

1. I observe that although prior advice may occur, there is no requirement that a PABO applicant advise an employer of their intention to lodge such an application. The requirement[12] is that the application is provided by the applicant to the employer (and the proposed ballot agent) within 24 hours after it has been made. This has taken place in this matter.

1. I find that the UWU has met the requirements of s.443(1)(b) of the Act.

1. On the basis of the material before me, I am also satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443 of the Act have been met, including those not in contest and not expressly dealt with in this decision. On that basis, and given that s.443(2) does not apply, I was obliged to issue the Order.

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[13] and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 11 September.[14] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR765354.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Exhibit A1.

[2] Based upon correspondence to the Commission dated 18 August 2023.

[3] [2015] FWCFB 210.

[4] Ibid at [18].

[5] Ibid at [34] - drawing upon Total Marine Services Pty Ltd v The Maritime Union of Australia[2009] FWAFB 368 (Total Marine).

[6] Ibid at [57].

[7] Ibid at [35] - but qualifying a further statement made in Total Marine.

[8] Ibid at [54].

[9] J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 9963 at [89].

[10] These matters were also not put to Ms Vergara during cross-examination.

[11] Noting that the two concepts are related but should not be conflated.

[12] Section 440 of the Act.

[13] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[14] This is, in effect, fourteen (14) working days from the date effect of the Order, as sought in UWU’s application.

Printed by authority of the Commonwealth Government Printer

Appearances:

A Purdy and L Dillon of the United Workers Union.

M Kavanagh of Inghams Enterprises Pty Limited.

Hearing details:

2023
August 22
by MS Teams Video.

<PR765355>