UnitingCare Wesley Bowden Incorporated

[2015] FWC 7655

[2015] FWC 7576

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union, Northern Mining & NSW Energy District
v
LCR Mining Group Pty Ltd
(B2015/1412)

COMMISSIONER SAUNDERS NEWCASTLE, 10 NOVEMBER 2015

Proposed protected action ballot of employees of LCR Mining Group Pty Ltd.

[1] LCR Mining Group Pty Ltd (LCR) is contracted by Boggabri Coal Pty Ltd to operate the Coal Handling Preparation Plant and Train Loading Facility (CHPP) at the Boggabri Open Cut Mine. The Construction, Forestry, Mining and Energy Union, Northern Mining and NSW Energy District (CFMEU) has members who are employed by LCR to work at the CHPP.

[2] On 2 November 2015, the CFMEU made an application under s.437 of the Fair Work Act 2009 (Cth)(Act) for a protected action ballot order (PABO) in relation to a number of LCR employees who work in the CHPP. LCR opposes the order sought by the CFMEU.

[3] Having regard to the requirement for the Fair Work Commission (Commission) to, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made 1, the PABO application was heard by telephone on 5 November 2015.

Issues

[4] The determination of this matter is primarily governed by s.443(1) of the Act:

“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).”

[5] There is no contest between the parties as to the following matters in relation to a proposed enterprise agreement, and I am satisfied on the evidence 2 that:

(a) the PABO application was made by the CFMEU under s.437 of the Act; and

(b) the CFMEU has been genuinely trying to reach an agreement with the employer (LCR) of the employees to be balloted.

[6] The only issue between the parties in relation to the PABO application is whether the CFMEU “is genuinely trying to reach an agreement with the employer (LCR) of the employees to be balloted” within the meaning of s.443(1)(b) of the Act [emphasis added].

Legal principles – “is genuinely trying”

[7] The use of the present tense “is genuinely trying to reach an agreement” in s.443(1)(b) of the Act requires satisfaction that, at the time of the determination (reflecting the evidence at the time of hearing), the applicant is trying to reach an agreement. 3

[8] The words “genuinely trying” are to be given their ordinary and natural meaning. 4 Determining whether an applicant is genuinely trying to reach an agreement requires an assessment of the circumstances in each case.5

[9] In J.J. Richards & Sons Pty Ltd v Transport Workers' Union of Australia 6the majority observed:

"[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.

…

[62] In the ordinary course of events 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, what may be described as an evidentiary onus shifts to the party or parties opposing the application to demonstrate why that evidence ought not be accepted sufficient to shift the evidentiary onus back to the applicant.

[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. For example, the evidence may demonstrate that the applicant is pursuing an agreement that it knows or ought reasonably knows would not be an enterprise agreement within the meaning of the FW Act because it contains non-permitted matters contrary to s.172(1) or that the true motivation is to apply pressure in pursuit of political or environmental goals or simply to punish the employer for some perceived wrong doing."

[10] In a second JJ Richards decision, J.J. Richards & Sons Pty Ltd and Another v Transport Workers Union of Australia, 7 a Full Bench stated:

"[40] Whether an applicant is genuinely trying to reach an agreement is a question of fact to be decided on the material before the tribunal....

[41] In a case in which a bargaining representative legitimately requests an employer to bargain and it is clear the employer does not agree to do so, it is likely that the representative will be found to be genuinely trying to reach an agreement, unless there is material from which it could be concluded that the request to bargain is a sham. Where the employer agrees to bargain other considerations are likely to be relevant. In either case all of the circumstances would need to be taken into account in deciding whether the bargaining representative is genuine."

Submissions – “is genuinely trying”

[11] LCR submits that the CFMEU is not genuinely trying to reach an agreement with LCR for three reasons:

(a) First, the CFMEU did not wait until it was notified of LCR’s position concerning (i) participation in future bargaining and (ii) participation in face to face bargaining meetings, and the location of such meetings, before the CFMEU made its PABO application;

(b) Secondly, LCR contends that the CFMEU insists on receiving a draft enterprise agreement from LCR before bargaining further; and

(c) Thirdly, LCR contends that the CFMEU refuses to meet other than in person to bargain for an enterprise agreement.

Relevant facts – “is genuinely trying”

[12] LCR’s employees who work in the CHPP are not covered by an enterprise agreement. The CFMEU sought to negotiate an enterprise agreement for those employees in 2014. LCR initially refused to commence negotiations for such an agreement. As a result, the CFMEU filed an Application for a Majority Support Determination on 11 August 2014. Prior to the conclusion of the hearing before the Commission on 26 August 2014 for a Majority Support Determination, LCR agreed to commence bargaining for an enterprise agreement.

[13] On 2 September 2014 LCR issued a Notice of Representational Rights to its employees who work in the CHPP.

[14] The parties bargained for some time in late 2014 and early 2015 for an enterprise agreement. In about May 2015, the CFMEU alleged that LCR had ceased bargaining in good faith. On 8 May 2015, the Commission heard an application by the CFMEU for bargaining orders against LCR. Such orders were made by Senior Deputy President Hamberger on 8 May 2015.

[15] In the period from 8 May 2015 until 28 September 2015 there were a number of bargaining meetings held in person at Newcastle between the CFMEU and representatives of LCR.

[16] At a bargaining meeting on 15 July 2015 LCR produced 17 pages of a 36 page document entitled “Boggabri Operation & Maintenance Coal Handling and Preparation Plant 2015”. The parties discussed the draft clauses on pages 1 to 17 at that bargaining meeting.

[17] At a further bargaining meeting on 28 September 2015 LCR produced pages 18 to 31, together with a signature page, of the document entitled “Boggabri Operation & Maintenance Coal Handling and Preparation Plant 2015”. The parties discussed the draft clauses on pages 18 to 31 of the draft document and LCR gave the CFMEU a report on the issues raised at the previous bargaining meeting in relation to pages 1 to 17 of the draft document.

[18] Mr Jeffrey Drayton, a Vice President of the CFMEU, gave uncontested evidence that, at the conclusion of the bargaining meeting on 28 September 2015, “the Respondent’s Bargaining Representatives stated their intention to prepare a final document. This document was to be in a form close enough to that which both parties may be able to agree on, although there may be some outstanding issues … The document was to be provided by 6 October 2015”. 8 Mr Drayton accepted in his evidence that LCR informed the CFMEU during the meeting on 28 September 2015 that LCR was going to seek some advice in relation to the agreement being negotiated before providing the draft agreement to the CFMEU.9

[19] LCR has not provided a draft enterprise agreement to the CFMEU, notwithstanding a number of attempts by Mr Drayton to follow up LCR and its new bargaining representatives, IRIQ 10, for the draft enterprise agreement.

[20] By letter dated 19 October 2015, IRIQ informed the CFMEU that they had “identified a number of issues with regards to the content of the Agreement”. 11 IRIQ proposed “a meeting at 1pm on 4 November or alternatively at 8am on 5 November 2015 for the purpose of progressing good faith bargaining discussions in relation to this Agreement. This meeting will be conducted by teleconference.”12

[21] By email dated 20 October 2015, Mr Keenon Endacott, CFMEU Industrial Research Officer, informed Theresa Moltoni, Managing Director of IRIQ, amongst other things, that:

“… To date we have not received a copy of the final document we were to receive after you reviewed it and the last changes discussed were to be inserted by Ms Micairan. Therefore, we require you to provide that document within seven (7) days of today’s date so we can meet with our members and be able to respond to the company in accordance with the arrangements that were understood to occur after the 28 September 2015.

Your position that there be a telephone meeting on 4 or 5 November 2015 does not rectify the breach of the good faith bargaining requirements. It has been the practice of the parties to meet in person and therefore we insist that any future meetings occur the same way….”

[22] By letter dated 22 October 2015, Ms Moltoni responded to Mr Endacott, stating (amongst other things):

“… There was a genuine intention to provide the CFMEU with a copy of the Agreement subject to the review that you encouraged. However, following that review it is clear that it is unreasonable and premature to provide a copy of a draft agreement without resolution of the issues at the heart of the bargaining process. We are seeking to meet with you to discuss those issues.

… We have raised our concerns with you, specifically that we believe your repeated refusal to meet with us and your repeated refusal to discuss matters that are substantive in relation to any Agreement, are actions that are not consistent with the provisions of good faith bargaining. We have made it clear that we are ready and willing to continue the bargaining discussions. We have proposed 2 alternate times for a teleconference meeting to progress the negotiations and we await your confirmation as to which date will suit you.”

[23] On 23 October 2015, the CFMEU made an application for bargaining orders against LCR and IRIQ. That matter is listed for hearing before me at 10am on 20 November 2015. At this stage neither LCR nor IRIQ has made an application for bargaining orders.

[24] On 29 October 2015, Mr Len Gillespie of LCR informed IRIQ that LCR had been unsuccessful in its tender for work at the CHPP, and that its current contract to do that work would terminate on 31 January 2016. On 30 October 2015, Ms Moltoni informed the CFMEU in writing of the loss of the contract by LCR and the steps LCR would be taking to meet its notification and consultation obligations.

[25] Ms Moltoni is of the view that LCR’s loss of the contract to undertake work at the CHPP is a significant event in the bargaining process. 13

[26] At a directions hearing on 2 November 2015 in relation to the CFMEU’s application for bargaining orders LCR informed the Commission and the CFMEU that it would like a short period of time to consider whether it wished to bargain at all for an enterprise agreement to cover its employees in the CHPP. I then made the following direction:

“By 5:00pm on Thursday, 5 November 2015, the respondents are directed to inform the Commission and the CFMEU as to their position concerning:
(a) participation in future bargaining; and
(b) participation in future face to face bargaining meetings and the location of such meetings.”

[27] On the afternoon of 4 November 2015, LCR notified the Commission and the CFMEU that it wished to continue to participate in bargaining on certain terms. 14 The CFMEU did not respond to IRIQ’s letter dated 4 November 2015 prior to the hearing of the PABO application at 12:30pm on 5 November 2015.

[28] Mr Drayton gave evidence on behalf of the CFMEU to the effect that the CFMEU has been, and is, genuinely trying to reach an agreement with LCR in relation to its employees who work in the CHPP. 15 Mr Drayton also gave evidence of the relevant sequence of events and steps taken by the CFMEU to try to reach an agreement with LCR.16

Is the CFMEU genuinely trying to reach an agreement with LCR?

[29] It was not put to Mr Drayton in cross examination, nor was there any evidence adduced to suggest or establish, that the CFMEU has “some other, extraneous intention, object or purpose” in seeking a protected action ballot or is seeking something other than an enterprise agreement under the Act. 17 Further, no submissions to this effect were made on behalf of LCR. These matters are significant in considering whether the CFMEU is genuinely trying to reach an agreement with LCR.18

LCR’s First Argument – CFMEU did not wait until it made its PABO application

[30] LCR is correct to point out that the CFMEU did not wait to be notified of LCR’s position concerning (a) participation in future bargaining and (b) participation in face to face bargaining meetings, and the location of such meetings, before the CFMEU made its PABO application. However, the fact that the CFMEU did not wait until being provided with this information does not, in my view, detract from the genuineness of the CFMEU’s desire to reach an agreement with LCR for the employees who are to be balloted. A bargaining representative may legitimately pursue protected industrial action during the course of bargaining as a legitimate means of furthering its genuine desire to reach an agreement. This point was emphasised by a Full Bench of the Commission in Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd 19 (at [73]) as follows:

“In and of itself, a bargaining representative making a particular strategic choice which is permissible under the bargaining scheme established by the Act, is not a basis on which to conclude that the bargaining representative is not genuinely trying to reach an agreement or that the bargaining representative has some extraneous intent or purpose. Recourse to protected industrial action and applications to facilitate that action, are an accepted means by which a bargaining representative may further the interests of those it represents.”

[31] In addition, in this case time is of the essence for the CFMEU to reach an agreement with LCR, because such an enterprise agreement will have no work to do if it is not in operation before the cessation of LCR’s contract to undertake work at the CHPP on 31 January 2016. In those circumstances, it is understandable that the CFMEU wanted to move quickly to make its PABO application in support of its desire to reach an agreement with LCR.

[32] Accordingly, I reject LCR’s submission that the fact that the CFMEU did not wait to be notified of LCR’s position concerning (a) participation in future bargaining and (b) participation in face to face bargaining meetings, and the location of such meetings, before the CFMEU made its PABO application establishes, or tends to establish, that the CFMEU is not genuinely trying to reach an agreement with LCR.

LCR’s Second Argument – CFMEU insists on receiving a draft enterprise agreement before bargaining further

[33] Mr Endacott accepted in submissions that the CFMEU’s current position is that genuine bargaining cannot occur unless LCR produces a draft enterprise agreement. 20 That concession was, in my view, appropriately made. It reflects the contemporaneous documentary evidence.21

[34] Mr Endacott submits that LCR informed the CFMEU at the bargaining meeting on 28 September 2015 that it would produce a draft enterprise agreement, albeit after obtaining its own advice about various matters, and the provision of that draft agreement would assist the CFMEU to reach an agreement because it would enable the CFMEU to take the draft agreement, even if incomplete, to its members to seek their feedback and move the bargaining negotiations to a more advanced position. All of that, Mr Endacott submits, suggests a genuine desire on the CFMEU’s part to reach an agreement with LCR.

[35] LCR points to the fact that there has been a significant development since LCR agreed to produce a draft agreement, namely LCR has unexpectedly been notified that it has lost the contract to undertake work at the CHPP after 31 January 2016. In those circumstances, LCR contends that the most effective and efficient way for good faith bargaining to proceed would be for the parties to meet to discuss the loss of the contract and its implications before the potential provision by LCR of a draft enterprise agreement to the CFMEU. 22 LCR’s contentions in that regard may be correct, but I do not have to decide those matters in these proceedings23 and, importantly, they do not, in my view, establish or suggest a lack of genuineness on the CFMEU’s part in its desire to reach an agreement with LCR. I am satisfied that the CFMEU’s insistence on receiving a draft enterprise agreement before bargaining further is a position it has taken because it has a genuine desire to reach an agreement with LCR.

LCR’s Third Argument – CFMEU refuses to meet other than in person to bargain for an enterprise agreement

[36] Mr Endacott submits that the CFMEU is not refusing to meet other than in person to bargain for an enterprise agreement. 24

[37] Mr Drayton gave evidence that the CFMEU has a preference for bargaining meetings to be on a face-to-face basis, and during his almost three years as a Vice President of the CFMEU he has always met with employers in person to negotiate enterprise agreements. 25

[38] However, in Mr Endacott’s email to Ms Moltoni dated 20 October 2015 he stated: “It has been the practice of the parties to meet in person and therefore we insist that any future meetings occur the same way” [emphasis added]. On the basis of this evidence, I find that the CFMEU is refusing to meet other than in person to bargain for an enterprise agreement. The question is whether such a refusal establishes or suggests a lack of genuineness on the CFMEU’s part in its desire to reach an agreement with LCR. In my view, it does not for the following reasons:

(a) The CFMEU and LCR have participated in a number of bargaining meetings. They have all taken place by way of face-to-face discussions, rather than by teleconference or any other means. There is therefore a legitimate basis for the CFMEU to have an expectation that future bargaining meetings would take place in person;

(b) The CFMEU’s usual practice and experience in the mining industry (at least in the Hunter Valley) is that bargaining meetings take place in person. 26 The CFMEU has a genuine preference that they do so;27 and

(c) Although there may be some argument as to whether a bargaining representative is contravening its good faith bargaining obligations under s.228(1)(a) of the Act by insisting that attendance at “meetings” be in person, rather than by telephone or some other means, that question is not currently before me and it is not determinative of the present PABO application. Further, having regard to the history of negotiations between the CFMEU and LCR, I am of the view that the CFMEU’s insistence on face-to-face bargaining meetings does not establish or suggest a lack of genuineness on the CFMEU’s part in its desire to reach an agreement with LCR. In fact, I am of the view that the CFMEU’s insistence on bargaining meetings taking place in such a manner supports the authenticity of its desire to reach an agreement with LCR.

Conclusion

[39] In the circumstances, I am satisfied that the PABO application has been made in accordance with s.437 of the Act. Further, I am satisfied that the CFMEU has been, and is, genuinely trying to reach an agreement with LCR in relation to a proposed enterprise agreement.

[40] Accordingly, pursuant to s.443(1) of the Act, the Commission must make a protected action ballot order. No submissions were made on behalf of LCR in relation to the form