1
Fair Work Act 2009
s.437—Protected action
National Union of Workers
v
Riverland Oilseeds Pty Ltd
(B2013/1073)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 AUGUST 2013
Proposed protected action ballot by employees of Riverland Oilseeds Pty Ltd.
[1] The following is an edited version of the text of the ex tempore decision delivered by
me at the conclusion of proceedings on 9 August 2013.
[2] The National Union of Workers (NUW) is a bargaining representative in relation to a
proposed enterprise agreement that would cover certain employees of Riverland Oilseeds Pty
Ltd (Riverland). The NUW has applied under s.437 of the Fair Work Act 2009 (the Act) for a
protected action ballot order in relation to certain employees of Riverland who are members
of the NUW.
[3] Following the lodgment of the NUW’s application, and inquiries made of the
employer by my chambers, Riverland advised me that it opposed the making of a protected
action ballot order. That application, along with Riverland’s opposition to it, was heard by me
on 30 July, 7 August 2013 and 9 August 2013.
Legislative scheme
[4] The requirements that relate to a protected action ballot are set out in Part 3-3,
Division 8 of the Act. A protected action ballot order will only be made on application1
relevantly, by a bargaining representative of an employee who will be covered by a proposed
enterprise agreement. It is common ground that the NUW is a bargaining representative of at
least some of the employees who will be covered by the proposed agreement. It is also not in
dispute that the nominal expiry date of the current agreement has passed and that the NUW
has served a copy of its application on Riverland and the Australian Electoral Commission,
within 24 hours of making the application.2
1 Section 443(1)(a) and (2).
2 See s.440.
[2013] FWC 5914
DECISION
E AUSTRALIA FairWork Commission
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[5] A protected action ballot order may only be made in limited circumstances3 and the
Commission does not have the discretion, other than to make an order, if it is satisfied that:
(a) there has been an application made under section 437; and
(b) the applicant - in this case the NUW - has been and is genuinely trying to reach an
agreement with the employer of the employees who are to be balloted.4
Riverland’s objections
[6] Riverland does not now dispute that the NUW has made a valid application under
s.437 of the Act, but opposes the grant of the order on the basis that the NUW has not been
and is not genuinely trying to reach agreement.
[7] Initially, Riverland raised an objection that the application for a protected action ballot
was invalid because the NUW had made the application without it being properly authorised
and signed in accordance with its registered rules. That matter was raised by Riverland on
7 August 2013 and, as a consequence, I adjourned the proceedings to enable the NUW to
product any evidence of authorisation or, alternatively, to make submissions about the validity
of its protected action ballot application. My chambers received copies of material evidencing
appropriate authorisation and communications occurred between the NUW and solicitors for
Riverland on 9 August 2013. As a consequence, Riverland no longer pressed its objection.
[8] As to the ground of objection that was pressed - namely, the question of whether the
NUW has been and is genuinely trying to reach agreement with Riverland - Riverland did not
call any evidence in support of this objection. Riverland instead relied on the evidence that
was elicited during cross-examination of Mr Brad Dobson, an organiser with the NUW and
the person responsible, on behalf of the NUW as bargaining representative, for negotiating the
proposed enterprise agreement.
[9] Mr Dobson gave evidence about the negotiations, including that there had been seven
meetings between the parties. He gave evidence that there had been agreement reached on
some items and, most recently, there had been agreement on one of the more contentious
items, namely, the scope of the agreement. He gave evidence that the NUW had moved on its
wages claim and he produced an email which was sent to Riverland and marked in these
proceedings as exhibit NUW2.
[10] Mr Dobson also gave evidence about his understanding of the good faith bargaining
requirements and he conceded that Riverland had requested written explanation for
maintaining the NUW’s position on the question of scope. He conceded that he had taken
some time to respond to this request. He also conceded that once he had provided a response
on the question of scope, he gave the employer only 24 hours to respond to that proposal.
[11] Riverland submitted that, on the basis of Mr Dobson’s evidence, I should conclude
that demonstrably the NUW has not been genuinely trying to reach agreement with the
employer. Riverland cite three grounds for maintaining that position.
3 See s.443(2).
4 See s.443(1).
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[12] Firstly, the delay in responding to the request for written details about the NUW’s
position on scope of agreement. Secondly, the pursuit for a prolonged period of an
unreasonable wage demand of 10 per cent per annum. Thirdly, the contradictory material
provided to Riverland by the NUW on the question whether the agreement should apply to
one site or three. On this third ground, Mr Dobson said that although there had been
conflicting correspondence from the NUW about site coverage, he had clarified the position
with Riverland some time ago. Riverland did not produce any evidence to contradict this
evidence, or that it was disadvantaged by the earlier contradictory advice.
[13] Riverland submitted that the unreasonable position adopted by the NUW, the delay in
responding to requests from the employer and the unreasonable time lines imposed by the
NUW, are all evidence that the NUW has not been genuinely trying to reach agreement.
[14] The NUW submit to the contrary. It was submitted that the NUW has been and
continues to genuinely try and reach agreement with Riverland on a new enterprise
agreement.
[15] The NUW tendered in evidence a copy of its log of claims. It referred to the evidence
of several meetings that had occurred with Riverland. It pointed to the progress that had been
made during the bargaining and it particularly pointed out that a number of items, including
the issue of scope, had now been agreed. The NUW also submitted that it had moved on its
claim for wages, as evidenced in exhibit NUW2. It said that in all other respects the statutory
requirements for the granting of a protected action ballot order had been met.
Genuinely trying to reach agreement
[16] The question of whether the NUW is genuinely trying to reach an agreement with
Riverland requires a finding of fact which is to be arrived at by reference to the circumstances
of the particular negotiations.5 Generally, the determination of this factual question will
require consideration of the extent to which negotiations have progressed, the steps taken by
the NUW to try and reach an agreement, the nature of the items about which it seeks
agreement and the extent to which these have been identified. There must be capacity for the
NUW to demonstrate that it has given a considered response to any demands that have been
made in the negotiations by Riverland.6 It is not necessary to show that negotiations on the
agreement or an item of the agreement have been exhausted and it is not necessary, in my
view, to show that the making of an application for a protected action ballot order is a last
resort.7
[17] Essentially, although not exclusively, it seems to me that Riverland’s objection
amounted to an allegation that the NUW was not meeting the good faith bargaining
requirements which are set out in s.228 of the Act and therefore, given the nature of its
conduct, was not genuinely trying to reach agreement with Riverland.
[18] I firstly state the obvious, and that is, if Riverland was concerned about the NUW not
meeting the good faith bargaining requirements then it was always open to it to pursue such
remedies as are available for such a contravention under the Act. There is no evidence before
5 Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407.
6 Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407.
7 CEPU and AMWU v Kraft Foods Ltd (2010) 197 IR 12.
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me to suggest that such an application either was made or was in contemplation. I do not
accept that the evidence of Mr Dobson demonstrates a failure to genuinely try to reach
agreement either during the course of the negotiations or currently.
[19] True it is that some of the conduct might fall short of the requirements set out in s.228
concerning good faith bargaining, but the concept of genuinely trying to reach an agreement
should not be confused with, or equated to, the good faith bargaining requirements.8 Self-
evidently, a party may not meet a particular good faith bargaining requirement but may,
nevertheless, be genuinely trying to reach an agreement.
[20] The fact that the NUW is maintaining a hard line in relation to negotiations, for
example by maintaining its claim for a 10 percent wage claim for an extended period of time,
equally does not mean that it was not then, or is not now genuinely trying to reach an
agreement with Riverland or that it has not in the past genuinely tried to reach such an
agreement.9 The NUW and Riverland have progressed bargaining, but an agreement has not
been reached. As I indicated earlier, in my view, Mr Dobson’s evidence does not disclose that
the NUW has not or is not genuinely trying to reach an agreement with Riverland. In my
view, his evidence demonstrates the contrary.
[21] In the circumstances, I am satisfied that the NUW has been and is genuinely trying to
reach agreement with Riverland for a proposed enterprise agreement.
[22] At the conclusion of the hearing on 9 August 2013, I determined, on the basis of the
material before me, that I was satisfied the requirements in s.443(1) of the Act have been met.
Accordingly, I made a protected action ballot order. The order [PR540063] was based on the
draft order proposed by the NUW in its application but did not include proposed paragraph
3.2 of the draft order as it was accepted by the NUW10 that no utility is served by including
that paragraph in the final order.
DEPUTY PRESIDENT
8 Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407.
9 NUW v ACCO Australia Pty Ltd [2009] FWA 226.
10 Transcript PN 192 - 194.
AIR ORK COMMISSION --------- SEAL AUSTRALIA THE
[2013] FWC 5914
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Appearances:
D. Mukjic for the National Union of Workers.
A. Salmon for Riverland Oilseeds Pty Ltd.
Hearing details:
2013.
Melbourne and Sydney (video hearing):
July 30;
August 7, 9.
Printed by authority of the Commonwealth Government Printer
Price code C, PR540478
