United Workers' Union v Toll Transport Pty Ltd T/A Toll Customised Solutions

[2020] FWC 6987

[2020] FWC 6987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

United Workers' Union
v
Toll Transport Pty Ltd T/A Toll Customised Solutions
(B2020/845)

DEPUTY PRESIDENT CROSS SYDNEY, 22 DECEMBER 2020

Toll Transport Pty Ltd T/A Toll Customised Solutions.

Introduction

[1] This decision concerns an application by the United Workers’ Union (the UWU) for an order pursuant to s.229 of the Fair Work Act 2009(Cth) (the Act) requiring Toll Transport Pty Limited (Toll) to refrain from conducting a vote of its employees to approve a proposed enterprise agreement that was filed on Thursday 17 December 2020. That vote is currently scheduled to occur on 23 December 2020.

[2] Due to the urgency of the matter, a hearing regarding whether interim orders should be made was conducted on Monday 21 December 2020.

[3] The order sought was in the following terms:

1. Toll Transport Pty Ltd is to defer the vote to approve the draft Toll Global Logistics (Healthcare - NSW) Enterprise Agreement 2020 scheduled for 23 December 2020 until at least 22 January 2021, unless there is agreement between Toll Transport Pty Ltd and the United Workers’ Union to an earlier date.

2. Toll Transport Pty Ltd and the United Workers’ Union will schedule a minimum of three meetings at an agreed time and place, commencing no earlier than 11 January 2021.

Background

[4] Toll operates a warehouse that distributes pharmaceutical products. The agreement currently covering that site is the Toll Customised Solutions (NSW – Healthcare) Enterprise Agreement 2015 (the Enterprise Agreement). The Enterprise Agreement expired on 30 November 2019.

[5] Bargaining for an agreement to replace the Enterprise Agreement did not begin until October 2020. That delay was agreed to by the UWU at the request of local Toll management in March 2020, who had asked the UWU not to visit the site during the COVID-19 pandemic.

[6] On 2 October 2020, Mr Johnathon Dixon, a Coordinator with the UWU, wrote to Toll’s site manager Mr Ashley Edwards, and attempted to arrange a bargaining meeting. They agreed on 20 October 2020, as the date for the first meeting, however Mr Edwards subsequently declined the meeting four days before 20 October 2020, due to various operational reasons.

[7] In addition to the UWU, there were two employees nominated as bargaining representatives by employees who are not members of the UWU - Vito Tizzone and Margaret Moevasa (the Employee Bargaining Representatives). It was accepted by the parties in the hearing that the Employee Bargaining Representatives represented the majority of employees at the site.

[8] The first bargaining meeting instead took place on 11 November 2020, and a further two bargaining meetings occurred on 2 and 10 December 2020. The first two meetings went for approximately one hour, and the third meeting went for approximately 30 minutes.

[9] Mr Dixon conducted a mass meeting of UWU members on Friday 11 December 2020. In this meeting UWU members discussed the state of bargaining and voted on adopting an updated position that included some new claims (the UWU Counter Proposal). As Mr Dixon left the site that day, Mr Edwards approached him in the car park and asked him to attend a bargaining meeting the following Monday, 14 December 2020. Mr Dixon advised he was not available and that the UWU wanted to meet the week of 11 January 2021, to put their members’ updated position.

[10] On 11 December 2020 at 12.43 pm, Mr Edwards received an e-mail from Mr Dixon in the following terms:

As previously foreshadowed relevant UWU officials are unavailable for a further bargaining meeting until on or after 11 January 2020. This is due to a combination of relevant officials taking annual leave during our shutdown period over the Christmas and New Year period and prior commitments that cannot be changed.

The UWU is currently formulating a revised bargaining position. This process will be concluded by 11 January 2020. Members have also raised a number of questions about the company’s offer, which the UWU intends to raise in bargaining.

We look forward to discussing the revised offer and the questions raised by members at a bargaining meeting on or after 11 January 2020.

[11] On Sunday 13 December 2020, Mr Dixon received a calendar invitation from Mr Edwards for a bargaining meeting on Monday 14 December 2020. He responded via an email to Mr Edwards again advising that he was unavailable.

[12] The further bargaining meeting occurred on 14 December 2020. Mr Edwards attended together with Diana Babana and Michael Cameron from Toll, and with the Employee Bargaining Representatives. At that meeting, Toll proposed concluding the terms of the Enterprise Agreement on the basis of:

(a) 2% per annum across the 3 year agreement; and

(b) The provision of annual leave loading from year 2.

[13] Following the tabling of the above offer, one of the Employee Bargaining Representatives said: “can we have some time to talk to the team.” Toll provided this opportunity, and when the meeting resumed one of the Employee Bargaining Representatives said “we accept your in principle offer.”

[14] Later on Monday 14 December 2020, at 2.24pm, Ms Diana Babana, Senior Manager HR, sent an e-mail to Mr Dixon and Mr Edwards. It stated:

Jonathan

Thanks for your e-mail. I note your advice that the Union is not available for any further meeting or to respond until 11 January 2020. Whilst I understand the challenges caused by the Christmas period, my preference is not avoid delaying progress on this agreement. Further, the feedback I have received is that the proposal put forward today by Toll to the employee representatives is acceptable, and that there is a general appetite to move forward. On that basis, we will be putting the following proposal to a vote of employees:
Year 1
2%
Year 2
2%
Annual Leave Loading
Year 3
2%
Annual Leave Loading
If you need any further details please do not hesitate to reach out.
Thank you,

[15] On Tuesday 15 December 2020, Mr Matt Toner, Director – Logistics of the UWU, sent correspondence to Ms Babana outlining the UWU’s concerns that Toll was not bargaining in good faith and requesting that the vote not proceed and that Toll schedule a further bargaining meeting on or after 11 January 2021.

[16] Ms Babana responded to Mr Toner’s letter later on 15 December 2020. Ms Babana

rejected Mr Toner’s assertions and the request to hold a bargaining meeting on or after 11 January 2020. Instead, Ms Babana said that Toll would proceed to a vote of employees.

[17] The UWU did not receive a copy of the proposed agreement before the access period commenced. Instead, Ms Babana provided Mr Dixon with a copy of the proposed agreement at approximately 1.21pm on 16 December 2020, a day after the access period commenced. That delay was said by Toll to be caused by an oversight.

[18] On Wednesday 16 December 2020, Alex Snowball, an Industrial Coordinator with the UWU, sent an email to Ms Babana attaching the revised position that UWU members had endorsed in mass meetings on 11 December 2020. Mr Snowball also asked again that Toll cancel the access period and agree to a meeting on or after 11 January 2020.

[19] Also on Wednesday 16 December 2020, in a telephone conversation between Mr Dixon and Ms Ferrier, Group Head Employee Relations for Toll, a discussion occurred which included:

Dixon: I want to discuss whether we can agree some kind of resolution around the Healthcare Agreement. The UWU and members feel side lined. We want you to withdraw the vote and have a meeting next year.

Ferrier: It’s not an issue of side lining anyone. We have spoken to employee representatives and we think that there is broad support for the proposed agreement, so we think the vote should go ahead.

Dixon: I will be on leave next week. We should have another meeting next year.

Ferrier: We will absolutely be having another meeting if the vote doesn’t get up, but we think there is broad support for what’s proposed.

Dixon: We’ve provided our revised proposal. We want a response to that. It’s particularly important to us that the employees on grandfathered provisions are referred to in the agreement.

Ferrier: We can’t agree to the revised proposal. There are new claims in there that haven’t been discussed in bargaining. I’m not sure of all of the details about employees on grandfathered arrangements, however I wouldn’t agree to incorporating those matters into the enterprise agreement. The enterprise agreement is a collective document. Where there are matters that apply to individual employees they should be dealt with in a separate letter or document. I’d be happy for that to be included on the Commission file if you are concerned about these negotiators moving on from the Company.

Dixon: We would want the grandfathered provisions in the enterprise agreement so they are enforceable.

Ferrier: They don’t have to be in the enterprise agreement to be enforceable. They are enforceable as a matter of contract.

Dixon: We would prefer to have them included in the agreement.

Ferrier: I appreciate that but we don’t agree to it.

Dixon: We want you to defer the vote.

Ferrier: This agreement is really important to Toll. There is no upside to us in putting off the vote. We think that employees want the vote to go ahead, that is what we’ve been told. It doesn’t make sense to pull the vote.

Dixon: We haven’t had the opportunity to speak to our members.

Ferrier: There is plenty of time for you to speak to members. I will speak to the business so that a meeting can be organised with your members.

Dixon: Thank you, I will have to see what we can arrange.

Dixon: We may still go forward with the good faith bargaining.

Ferrier: That’s a matter for you. We don’t agree that we’ve breached our good faith bargaining obligations.

[20] On Friday 18 December 2020, Mr Dixon attended the site at 10:00am for the purpose of conducting a paid meeting with UWU members. That meeting was agreed to by Toll. The meeting referred to above went for approximately 40 minutes.

[21] Mr Dixon commenced annual leave on 21 December 2020

Contentions

[22] In advancing its case for interim orders, the UWU submitted that there existed three serious questions to be tried regarding whether Toll have not met, or are not meeting, the good faith bargaining requirements by:

(a) Not providing the UWU with an ability to discuss Toll’s counter proposal (being that agreed with the Employee Bargaining Representatives);

(b) Failing to reschedule a meeting with the UWU until 11 January 2020; and

(c) Failing to respond to the UWU Counter Proposal.

[23] Regarding the balance of convenience, the UWU contended that there was no imposition on the business of Toll to delay a further meeting with the UWU until on or after 11 January 2020, with the consequential delay on any vote until at least a week thereafter.

Consideration

[24] There is no issue that all of the preconditions 1, but for whether Toll have not met, or are not meeting, the good faith bargaining requirements, have been met.

[25] Section 228(1)(a)-(f) sets out the good faith bargaining requirements that a bargaining representative must meet. It provides:

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

[26] In Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd  2 a Full Bench of Fair Work Australia found:

We deal now with the ballot of employees. Although there may be circumstances in which the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements, it will not always be so. There is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot. In this case the Commissioner and the parties all referred to the notion of “impasse” as the touchstone by which to judge whether an employer who puts a proposed agreement to a ballot without the agreement of the other bargaining agent thereby fails to observe the good faith bargaining requirements. There was some debate about whether “impasse” had been reached at the relevant time. The Commissioner found that “negotiations for an enterprise agreement have reached a stalemate, or using Tahmoor's words: ‘an impasse’.”Another way of approaching the matter, as the CFMEU intimated in its submissions, might be to ask whether there had been a reasonable opportunity to discuss Tahmoor's latest proposal. Yet another formulation might be to ask whether negotiations had reached such a stage that the employer was entitled to put its proposal to a ballot in order to see if progress could be made. However it is put, we are satisfied that in arranging to put its proposed agreement to the employees in a ballot, Tahmoor was not acting capriciously or unfairly in the circumstances prevailing at the time.

(Emphasis added)

[27] Section 171 of the Act outlines the objects of Part 2.4 – Enterprise Agreements of the Act. It provides:

Objects of this Part

The objects of this Part are:

a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

i) making bargaining orders; and

ii) dealing with disputes where the bargaining representatives request assistance; and

iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.

(a) Not Providing the UWU with an Ability to Discuss Toll’s Counter Proposal

[28] I disagree with the assertion that the UWU were not provided with an opportunity to discuss Toll’s counter proposal. The UWU were invited to the meeting on Monday 14 December 2020, which followed closely upon the previous meeting on 11 December 2020. Unfortunately, the UWU could not attend, and advised that they would not available for any further meeting until 11 January 2020, however the invitation presented a clear opportunity.

(b) Failing to Reschedule a Meeting with the UWU until 11 January 2020

[29] As noted above, it was accepted by the parties in the hearing that the Employee Bargaining Representatives represented the majority of employees at the site. Those Employee Bargaining Representatives had reached in principle agreement with Toll. As such, negotiations had reached such a stage that Toll was entitled to put its proposal to a ballot in order to see if progress could be made.

[30] The UWU’s suggestion that the agreement process should stop for a month due to their convenience is itself arguably indicative of the UWU failing to attend and participate in meetings at reasonable times. 3 It is notable that, while attendance at meetings was said to be not possible, on Friday 18 December 2020, Mr Dixon attended the site for a paid meeting with UWU members.

(c) Failing to Respond to the UWU Counter Proposal.

[31] It is clear that in the telephone conversation of 16 December 2020, Ms Ferrier responded to the UWU counter proposal. She said:

We can’t agree to the revised proposal. There are new claims in there that haven’t been discussed in bargaining. I’m not sure of all of the details about employees on grandfathered arrangements, however I wouldn’t agree to incorporating those matters into the enterprise agreement. The enterprise agreement is a collective document. Where there are matters that apply to individual employees they should be dealt with in a separate letter or document. I’d be happy for that to be included on the Commission file if you are concerned about these negotiators moving on from the Company.

(d) Balance of Convenience

[32] As to the balance of convenience, while I have found no serious questions to be tried regarding Toll not having met good faith bargaining requirements, I would also not have considered the balance of convenience favoured the making of interim orders. It would appear that agreement has been reached with the bargaining representatives of the majority of employees. Any delay in the proposed vote could lead to a consequential delay in approval of the proposed agreement of at least one month, with a consequential delay in pay rises to employees.

[33] It is also clear that the UWU have not been hindered in their communications with their members prior to the vote. Toll in fact facilitated the paid meeting with employees on 18 December 2020.

Conclusion

[34] For the reasons above I decline to make orders sought.

DEPUTY PRESIDENT

Appearances:

Mr R Payne, for the Applicant

Ms E Ferrier, for Toll Transport Pty Ltd

Hearing details:

2020
Sydney
21 December

Printed by authority of the Commonwealth Government Printer

<PR725752>

 1   s.230 of the Act.

 2 (2010) 195 IR 58, at [30].

 3   S. 228(1)(a) of the Act.