United Workers' Union v Rsea Pty Ltd

[2020] FWC 1687

[2020] FWC 1687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
RSEA Pty Ltd
(B2020/182)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 MARCH 2020

Proposed protected action ballot of employees of RSEA Pty Ltd.

[1] At 10.52am on 23 March 2020, the United Workers’ Union (UWU) applied for a protected action ballot order (the Application). In doing so, the UWU seeks an order that those employees of RSEA Pty Ltd (RSEA) who are members of the UWU, and who will be covered by the proposed enterprise agreement, be balloted to see if they support the taking of protected industrial action.

[2] The Application was accompanied by a statutory declaration declared on 20 March 2020 by Mr Brad Donnelly, an Organiser for the UWU.

[3] Email correspondence was sent by the Fair Work Commission to RSEA on the same day seeking advice as to whether it opposed the Application. In a reply email Ms Helen Lloyd, Chief Human Resources Officer for RSEA, advised RSEA objected to the Application on following basis:

“We object on the following grounds:

•  RSEA has been bargaining in good faith and we only commenced negotiations on 17 December 2019.

•  We have had 3 meetings and have been discussing the Log of Claims, providing consideration for all claims presented.  As we are in the early stages of negotiation, reaching an agreement is still be discussed.

•  The UWU were advised in writing by RSEA that we were not in a position to continue negotiating given the current economic environment and we indicated that we would review this in July 2020.  At no time did we indicate that we would not consider negotiations in this communication.

•  This decision was not taken lightly and given the current global environment we are unable to consider negotiating until such time as the Coronavirus is not a threat to people and businesses.

•  Under the Biosecurity Act, RSEA has been declared an ‘Essential Business’ and for this purpose we have an obligation to our customers in the community to support them and provide essential items for their wellbeing. This includes the distribution of stock through our Distribution Centre based at Wetherill Park where the threat of Protective Action is pending. The government has requested that we support the health sectors to ensure the safety of the health workers/employees, which we have agreed to do. If this Protective Action was to take place we believe that people in our communities may be affected, not just in the health sector who are saving lives but general people who are looking for hand sanitizers, masks, gloves, eye protection and more.

We are committed to supporting the communities and ensuring our employees are safe and remain in jobs.”

[4] In response, an email was sent from the Commission to the UWU seeking its views. The response received from the UWU stated:

“As per the application, 3 bargaining meetings have been held so far. The applicant has attended these meetings in good faith for the purpose of genuinely trying to reach agreement. 

The respondent recently wrote to the applicant cancelling any further bargaining meetings until July. The union is considering a separate application pursuant to s. 228 and 229 in relation to this behaviour and has today set out our concerns to the respondent in writing. 

From the applicant's perspective, the union has been and is available to continue bargaining meetings, whether these be via teleconference or other means. 

For the reasons set out above and in the union's application and accompanying statutory declaration, our position is the union has met the statutory requirements. 

Respectfully, the respondent's correspondence does not address any of the relevant statutory grounds it may rely on in opposing this application. Should the respondent wish to press its objection, I would suggest it should set out in detail how the union has not been and is not genuinely trying to reach an agreement.”

[5] In a final email sent on 23 March 2020, RSEA was asked in a further email sent from the Commission whether, in light of the UWU’s response, it wished to press its objection to the Application.

[6] At 10.47am on 24 March 2020, Ms Lloyd replied by email, stating:

“I understand from the applicant's perspective, the union is available to continue bargaining meetings, whether these be via teleconference or other means.  The Respondents, RSEA is prepared to continue bargaining from July when we have a clearly understanding of the economic environment that we are faced with today due to the Coronavirus.   At this point in time we are unable to establish certainty around business and we are not prepared to continue to bargain when we are currently working hard to secure the business and ensures its success.

It is not our intent to breach regulations, but we are simply not in a position to bargain right now as we are trying to secure jobs for all employees and we don’t need the distraction of bargain in this very uncertain environment.

We believe the current environment needs to be taken into consideration, as we are not operating in a environment that we have been used to.

We would appreciate your consideration in this matter.”

[7] The UWU responded with an email stating:

“Respectfully, the respondent's reasons for why it does not wish to hold further bargaining meetings until July are not relevant to this application. 

The union has written to the respondent and explained that in our view, the respondent is not meeting its good faith bargaining obligations. The union also put the respondent on notice that it is considering making an application pursuant to s. 229. Should it be necessary, the respondent can articulate its position in that forum. 

Despite the respondent's position in relation to further bargaining meetings, the union has been and is genuinely trying to reach an agreement. As outlined in our application, the accompanying materials and this correspondence, our view is the Commission ought to be satisfied the application has met the relevant statutory requirements. 

The relevant considerations as to whether the Commission may grant a protected action ballot order application are contained in s. 443. Unless the respondent wishes to object to this application on grounds relevant to s. 443, we respectfully suggest the respondent consider withdrawing its objection.”

[8] This prompted Ms Lloyd to put forward the following proposition in an email sent at 12.45pm:

“I refer to the applicants correspondence below and will agree with the proposed protected action ballot under the following conditions:

That if we are still managing the effects of the Coronavirus the following applies:

1. An unlimited number of stoppages of work of 4 hours duration? – Removed from Ballot

2. An unlimited number of stoppages of work of 24 hour duration? – Removed from Ballot

The following items added:

3. Embroidery employees not to be affected.

4. An unlimited number of stoppages of work of 76 hour duration?

5. With an minimum of 2 weeks’ notice for the stoppages.

I fail to understand under in the current economic environment why the UWU would seek to discuss these options with employees when we are working so hard to maintain their jobs and all our employees jobs.   We are affected like all other businesses and adding this to our business will have a major impact if the action is taken.  It will affect our communities and people that are relying on us to provide a service.

Appreciate your consideration.”

[9] The matter was allocated to me and I listed it for a telephone mention. Ahead of the mention, the UWU sent further correspondence to my Chambers as follows:

“The respondent has failed to offer any basis for their objection to this application relevant to s. 443. 

The union rejects the proposal to remove or add any ballot questions or exclude certain workers from the ballot. In relation to the respondent's proposal to extend the notice period requirement, I would draw their attention to s. 443(5). 

I note this matter is now listed for Mention later this afternoon. I would ask that the respondent articulate their basis for objecting to this application with reference to s. 443 before that Mention so that it may proceed as efficiently as possible.”

[10] At the mention, RSEA advised that it objected to some of the proposed industrial action particularised in the Application. Further, it sought seven working days’ written notice regarding the proposed industrial action. RSEA did not seek to object to the Application on the basis of s.443(1)(b) of the Fair Work Act 2009 (the Act).

[11] As a result, the following directions were made:

a) RSEA was to file with the Fair Work Commission and serve on the UWU, by 12 noon AEDT Friday 27 March 2020,any submissions, including witness statements and materials or evidence in support of its objections to the form of orders sought and its position on s443(5) of the Act relating to the period of written notice that ought be given for the proposed industrial action.

b) The UWU was to file with the Fair Work Commission and serve on RSEA Safety any submissions, including witness statements and materials or evidence in support in response to the submissions of RSEA by 4.00pm on Monday 30 March 2020; and

c) The matter was listed for hearing at 2.00pm on Tuesday 31 March 2020 before me.

[12] At 10.13am on Friday 27 March, Mr Rowan Payne from the UWU sent an email to my Chambers, copied to Ms Lloyd, which stated:

“Following discussions between the parties, I understand that the respondent no longer objects to the union's application. Nor does it seek to alter or remove any forms of action as proposed in the union's application and draft Order. 

In turn, the applicant will consent to a four (4) working day notice period for any industrial action. 

On the above basis, we suggest the hearing for this matter listed Tuesday 31 March may be vacated.”

[13] Having noted what now appears to have been agreed between the parties, I now outline my reasons for granting the Application and Order sought.

Has the UWU been and is it genuinely trying to reach agreement with CHH?

[14] In the Form F34B Statutory declaration in support of an application for a protected action ballot order, Mr Donnelly declared that a log of claims had been served on RSEA on or about 17 December 2019 which was then followed by three meetings, during which time the UWU had changed its bargaining position and had withdrawn some claims. Mr Donnelly declared that while progress has been made, the proposed wage increase remains in contention. Further, during the course of the telephone mention before me, Mr Payne for the UWU stated that the UWU wants to continue negotiating. This is also borne out in the correspondence from the UWU on 23 March 2020 outlined above, in which it was stated by the UWU that it “is available to continue bargaining meetings, whether these be via teleconference or other means”.

[15] In these circumstances, I am satisfied that the UWU has been and is genuinely trying to reach agreement with RSEA. 1

[16] As to matters relating to s.443(1)(a) of the Act, I am satisfied based on the material before me that:

1. The UWU is a bargaining representative for the employees 2 and the restriction in s.437(2A) of the Act does not apply;

2. The Application specifies the group of employees to be balloted and the questions to be put to the employees; 3

3. RSEA received a copy of the Application when it was filed with the Commission and at the mention on 24 March 2020 and, based on advice from Mr Payne, the AEC was sent a copy of the Application by email at 11.02am on 23 March 2020, which was within 24 hours of the making of the Application; 4 and

4. The restriction in s.438(1) of the Act does not apply.

Conclusion

[17] On the basis of the material before me, I am satisfied the UWU has fulfilled the statutory prerequisites for a protected action ballot order, and accordingly, I must make a protected action ballot order. An Order will be issued separately to this decision.

DEPUTY PRESIDENT

Appearances:

Mr R Payne for the United Workers’ Union.
Ms H Lloyd for RSEA Pty Ltd.

Hearing details:

2020.
Melbourne (by telephone):
March 31.

Printed by authority of the Commonwealth Government Printer

<PR717910>

 1   Fair Work Act 2009 (Cth) at s.443(1)(b).

 2   Ibid at s.437(1).

 3   Ibid at s.437(3).

 4   Ibid at s.440.