1
Fair Work Act 2009
s.437—Protected action
The Australian Workers’ Union
v
Esso Australia Pty Ltd
(B2014/1570)
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
v
Esso Australia Pty Ltd
(B2014/1571)
Australian Municipal, Administrative, Clerical and Services Union
v
Esso Australia Pty Ltd
(B2014/1573)
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Esso Australia Pty Ltd
(B2014/1104)
COMMISSIONER CRIBB MELBOURNE, 5 DECEMBER 2014
Proposed protected action ballots of employees of Esso Australia Pty Ltd.
[1] This decision concerns applications by the AWU, CEPU, ASU and AMWU
respectively, for protected action ballot orders. The applications have been made under
section 437(1) of the Fair Work Act 2009 (the Act). The applications are in relation to Esso
Australia Pty Ltd (the company, Esso), who is the employer of the employees who are to be
balloted.
[2] The applications were heard on Wednesday 19 November and Thursday 20 November
2014. During the hearing, there was no opposition from the company to the evidence and
submissions being taken as having been given in respect of all of the four applications.
Accordingly, where appropriate, the decision takes the same approach in dealing with the
[2014] FWC 8391 [Note: An appeal pursuant to s.604 (C2014/8435) was
lodged against this decision and the orders arising from this decision -
refer to Full Bench decision dated 10 February 2015 [[2015] FWCFB 210]
for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB210.htm
[2014] FWC 8391
2
company’s objections to the applications. However, a decision will be made specifically in
relation to each of the applications.
[3] Finally, it was indicated at the conclusion of the hearing that, for efficiency purposes,
the decision would simply contain the Commission’s considerations and conclusions
regarding the applications. This obviously would include the reasons for the decisions but, as
the evidence and submissions are very recent, there would be no necessity to provide a
summary of these per se. However, references to the evidence, as necessary, would be made.
1. Legislative framework
[4] Section 443 sets out the requirements to be met for the granting of a protected action
ballot order application. It is 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 company’s objections
[5] An indicated earlier, Esso objected to the granting of the unions’ applications on a
number of grounds. These were that:
the Commission cannot be satisfied that the applications filed are valid applications
(s.443(1)), as the proposed industrial action has to be industrial action that is capable
of being protected industrial action.1
the applicant unions have not been, nor are genuinely trying, to reach an agreement
with the company (s.443(1)(b)).2
[6] I will deal with each of the objections in turn.
(a) Applications are not valid applications
[7] The company argued that the requirements of section 443(1)(a) are not a ‘tick the box’
requirement. Rather, one of the fundamental premises of section 437 was said to be that, the
industrial action that is the subject of the application, has to be industrial action that is capable
of being protected industrial action. If that is not the case, the company contended that there
cannot be a valid application under section 437 for the purposes of section 443(1)(a) of the
Act.3
1 Transcript PN 1999
2 Ibid PN 2158
3 Ibid PN 1999 and 2052
[2014] FWC 8391
3
[8] There were two grounds on which the company argued that the proposed industrial
action is not capable of being protected industrial action. This was because the proposed
industrial action poses a risk to health and safety (s.415(a)) and because there has been
contravention of a good faith bargaining order (s.413(5)).4
(i) Risk to health and safety
[9] Esso contended that the immunity provided for in section 415 (in these cases, in
relation to s.415(a) - personal injury), is not enlivened due to the industrial action posing a
threat to personal injury. Therefore, as the proposed action does not attract s.415 immunity,
the proposed industrial action would not be protected industrial action and so is not capable of
being the subject of a section 437 application.5
[10] It was submitted that the plain meaning of the words in section 437 is that the
protected action ballot order has to be in relation to protected industrial action. The clause
was said to state that the ballot to be conducted is to determine whether employees wish to
engage in particular protected industrial action.6
[11] The company provided two authorities in support of the contention that the proposed
industrial action needed to be capable of being protected industrial action for there to be a
valid application. These were the decision of Thatcher C in Maritime Union of Australia v
Total Marine Services7 (TMS) and Williams C in AWU v Alcoa8 (Alcoa) who endorsed
Thatcher C’s decision in this regard. It was explained that, in dealing with the new provision
of s.443(1(a), Thatcher C found that the Commission should establish that the application
does not involve circumstances which are inconsistent with the proposed industrial action
becoming protected industrial action.9 In addition, reference was made by Williams C, in his
decision in Alcoa, to Thatcher C’s decision. It was noted by the company that the Full Bench
decision in the appeal against Thatcher C’s decision did not take issue with this aspect of
Thatcher C’s decision.10
(ii) Contravention of a good faith bargaining order
[12] The company submitted that, one of the common requirements for industrial action to
be protected, is that the bargaining representative must not have contravened any bargaining
order that applies to them (s.413(5)). It was argued that, if a bargaining representative has
contravened such an order, they are disentitled from taking industrial action, as are the
employees that they represent. The company contended that it is not necessary for a court to
have made a finding of contravention in order for the bargaining representatives to be
disentitled to take protected action under section 443(5). It was submitted that the
Commission had sufficient evidence before it of a breach of a bargaining order so that the
4 Ibid PN 2000 - 2002
5 Ibid PN 2002 and 2007 - 2008
6 Ibid PN 2015 - 2017
7 [2009] FWA 187
8 [2009] FWA 796
9 Transcript PN 2025 - 2031
10 Ibid PN 2031 - 2032
[2014] FWC 8391
4
Commission could make a finding that there had been a contravention. The Commission was
referred to the High Court authority in Re Cram in support of this proposition.11
[13] It was also argued that the facts of the case make it clear that the ASU has contravened
DP Hamilton’s good faith bargaining order.12 This is on the basis that the order required the
ASU to attend and participate in meetings for the Longford LIP Agreement on 23 September
2014 and 24 September 2014. The evidence was said to be clear that the ASU did not attend.
The ASU’s argument that the union, as part of an all sites committee, had complied with the
order was said to be misconceived.
[14] Further, in relation to the contravention of the order made, the company argued that
the Full Court of the Federal Court authority (Yates Property Construction v Boland) requires
consideration of the context in which the order was made, namely, the decision.13 The
Commission was urged to consider the entirety of DP Hamilton’s decision as it was said to
put the order in context. It was stated that the decision was made in response to the unions’
refusal to participate in bargaining on a site or agreement specific basis. DP Hamilton’s
finding was said to have been that the failure of the bargaining representatives to attend site
specific meetings was a failure to meet the good faith bargaining requirements. This was
following the evidence of three union officials that they refused to negotiate at a site based
level.14
[15] In addition, it was submitted that the order made were directed at identifying who had
standing as bargaining representatives rather than identifying particular union organisers. It
was stated that the evidence supports a finding that the unions made a decision to appear to
comply with the order but to not properly comply. This was on the basis that the unions’
primary position was described as being that bargaining must occur in the all sites committee.
When DP Hamilton’s order required that bargaining was to be on a site specific basis, it was
contended that the decision was made that the organisers only would attend. This was
contrasted with the evidence of Mr Dodd and Mr Mooney in relation to the importance (and
the involvement) of their delegates in bargaining.15 The company argued that, in the context
of DP Hamilton’s decision, the order required the attendance and participation of the
delegates as well as the officials. It was said that the officials and delegates would ordinarily
form the bargaining representatives of the union.16 The Commission was provided with
authority17 that delegates act with the authority of the union and that their conduct is and can
be conduct of the union.18
[16] In response to the unions’ contention that there was a lack of genuineness in the
company’s belief that the order had been contravened by the unions, reference was made to
the company having raised this issue in the first conference before Johns C on 1 October
2014. It was recounted that a report back with DP Hamilton on 29 September 2014 had been
11 Ibid PN 2043 - 2098
12 PR555405
13 Transcript PN 2118
14 Ibid PN 2118- 2128
15 Ibid PN 2150
16 Ibid PN 2130 - 2132
17 Qantas Airways v TWU [2011] FCA 470
18 Transcript PN 2146
[2014] FWC 8391
5
adjourned. Further, it was contended that Johns C was clear and unambiguous about whether
there had been compliance with the order.19
[17] The company indicated that it did not take issue with the fact that there had been a
bargaining meeting for each agreement, with delegates in attendance, under the auspices of
Johns C. However, it was argued that this does not rectify the deliberate contravention of DP
Hamilton’s order. This was on the basis that there is nothing in the Act that allows for
rectification or that only partial compliance with an order is necessary.20
(b) Genuinely trying to reach agreement
[18] Esso stated that it is the applicants who have the obligation to satisfy the Commission
that they have been, and are, genuinely trying to reach agreement. Further, the authorities
were said to provide that the Commission must look at all the circumstances including
whether the applicants have been bargaining in good faith etc. It was stated that the Full
Bench in the Total Marine Services appeal21 found that there are no rigid rules and that all of
the relevant circumstances must be assessed.22
[19] On the basis of the evidence, the company contended that:
The only times the unions have met with the company has been at the bargaining
meetings ordered by DP Hamilton (where there was not proper attendance and
participation) and meetings directed by Johns C.23
Johns C gave the unions two options for the progression of bargaining.24
DP Hamilton has made a good faith bargaining order in relation to the four unions.25
The failure of the unions to agree to have other meetings (as set out in Mr Vickers’
statement).26
[20] A further ground on which it was contended that the unions have not been genuinely
trying to reach agreement was that the unions are pursuing or have not withdrawn, a non
permitted matter. Reference was made to the decision in John Holland v AMWU, AWU27 and
the Full Bench decision in J.J. Richards & Sons Pty Ltd v TWU28 (J.J Richards) in support of
this proposition.29
19 Ibid PN 2133 - 2136 and 2153
20 Ibid PN 3053 - 3057
21 Total Marine Services Pty Ltd v MUA [2009] FWAFB 368
22 Transcript PN 2158 - 2161
23 Ibid PN 2162 - 2163 and 2192
24 Ibid PN 2163
25 Ibid PN 2192
26 Ibid PN 2204
27 [2010] FWAFB 526
28 [2010] FWAFB 9963
29 Transcript PN 2206
[2014] FWC 8391
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[21] The company argued that the job security claim is not, in fact a job security claim.
The original log of claims was said to have included a contractors clause and the revised log
of claims also contained the claim. The evidence of Mr Mooney and Mr Dodd was described
as having been clear and unambiguous that all of the claims were still on the table. The claim
was said to be a clause that restricts or qualifies the employer’s right to use contractors. The
clause was stated to have been provided to the company by the unions which Mr Mooney was
involved in drafting.30 The Commission was referred to two of a number of authorities to this
effect - the decision in Wesfarmers Premier Coal Limited v AMWU (No2)31 (Wesfarmers) and
the Full Bench decision32 in Airport Fuel Services Pty Ltd v Transport Workers' Union of
Australia33 (Airport Fuel Services). The latter decision was said to make clear that, pursuit of
a claim which restricts or qualifies the employer’s right to use independent contractors, which
has not been withdrawn, does not satisfy the requirement of genuinely trying to reach
agreement.34
3. The unions’ submissions in relation to the objections
[22] Each of the unions adopted each others’ submissions and also made their own separate
submissions in relation to the company’s objections.
[23] The general thrust of the unions’ submissions included:
The company is seeking to import into section 443(1) other parts of the Act that were
not meant to be imported. Reference was made35 to the Federal Court decision in
J.J. Richards.36 The parts of the Act which the company was seeking to import
included the common notice requirements (s.413) for industrial action to be
protected and the immunity provision (section 415). In terms of s.415, it was argued
that this section requires the industrial action to be protected in the first place,
otherwise how can the immunity be removed.37
Further, the unions gave an undertaking that they will not take any action that is
going to pose a risk to health and safety.38 In relation to the common requirements
for industrial action to be protected (s.413), these were described as requiring the
notice requirements, under s.414, to have been met. It was re-iterated that, until
notice has been given, there is no protected industrial action to be considered.39
It was also stated that s.408 only applies after notice of intended industrial action has
been provided to the employer and not when the ballot order application is being
considered.40 Section 408 was said to provide that, until the action has been
30 Ibid PN 2210 - 2220
31 [2004] FCA 1737
32 [2010] FWAFB 4457
33Transcript PN 2211 - 2217
34 Ibid PN 2218 - 2221
35 Ibid PN 2234
36 J.J Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53
37 Transcript PN 2234 - 2235
38 Ibid PN 1898, 1938 and 2294
39 Ibid PN 2320 - 2328
40 Ibid PN 2235
[2014] FWC 8391
7
organised or engaged in, it is not protected action. It only becomes protected action
once it is occurring.41
There has been no breach of DP Hamilton’s order and the company was said to have
taken no action to obtain a finding that there has been a breach.42 It was noted that
the company’s draft order, which accompanied its good faith bargaining order
application had included the delegates but that the order issued by the Commission
only specified the unions. It was stated that the unions had attended all of the
meetings.43 Further, it was argued that there is a longstanding industrial principle
that each party decides who will be part of their team. The unions contended that it
was up to each side as to who participated in the negotiations.44 Mr Vickers
evidence was recalled to be that, during the meetings in September 2014, there was
an exchange of views between the parties on negotiation of the agreements at a site
specific level. It was stated that the company had wanted the union to negotiate on a
site specific basis. The unions argued that this was what they got and that they were
trying to read something into the order that is not there.45
Consideration of whether there has been a breach of the order was said to occur at
the time that the action is notified and not when a protected action ballot order
application has been made.46
The meetings before Johns C were the result of the unions’ applications and, as part
of that, the unions agreed to suspend the claim for one agreement because they
wanted to reach agreement with the company. This was in response to directions not
orders by Johns C.47 This was said to be a clear example of the unions genuinely
trying to reach agreement. However, the parties have now reached an impasse. It
was stated that a protected action ballot is a legitimate option for the unions at this
point in time.48
In relation to impermissible matters, the AMWU, on behalf of itself and the other
unions, gave an undertaking to withdraw the draft clause that was given to the
company. The unions reserved their right to continue to negotiate around the claim
that was put to the company in the revised log in relation to security of
employment.49 It was argued that, on the basis of a number of authorities (Full
Bench decision in J.J Richards at [63], Wesfarmers, Airport Fuel Services,
Australian Industry Group v ADJ Contracting Pty Ltd50 and Alcoa of Australia Ltd v
Australian Workers’ Union - Western Australian Branch51) it is perfectly legitimate
41 Ibid PN 2303 - 2318 and 2374
42 Ibid PN 2235 - 2255 and 2329 - 2341
43 Ibid PN 2254 - 2255 and 2346 - 2348
44 Ibid PN 2351
45 Ibid PN 2235 - 2255, 2330 - 2331 and 2377 - 2379
46 Ibid PN 2328 and 2383
47 Ibid PN 2282 - 2283, 2352 and 2379 - 2380
48 Ibid 2352
49 Ibid PN 2367 - 2369 and 2279
50 [2011] FWAFB 6684
51 [2010] FWAFB 4889; 197 IR 355
[2014] FWC 8391
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to negotiate about security of employment and a contractors clause.52 It was argued
that there is no issue with the security of employment claim in the revised log being
a permitted matter. This was because if concerns the security of employment of
employees, something which was said to be found in numerous agreements.53
The decisions of Thatcher C and Williams C were refuted on the basis that they were
single member decisions by which the Commission is not bound. It was argued that
the proper construction of s.443(1)(a) is that the protected action ballot order has to
be granted, the proposed industrial action is notified and it is then at that point that
the immunity and common requirements for protection are enlivened.54
The ASU specifically, submitted that the ASU had not abandoned representation of
its members at the meetings on 23 and 24 September,17, 21 and 27 October 2014. It
stated that the organiser, Mr Leydon, was ill and was unable to attend.55
Notwithstanding the non attendance of the union organiser, the ASU argued that it is
part of the Esso all sites committee and that the ASU is clearly identified on the
letterhead. It was also stated that the log of claims was served through the all sites
committee as well as further correspondence between the parties. Ms Rowe’s
evidence was recalled to be that she believed that all bargaining was through the all
sites committee.56 DP Hamilton’s order was said not to have been breached as the
situation was one of the ill health of the union organiser.57
The AWU also made specific submissions in light of not having called any witness
evidence due to the illness of the union organiser, Mr Ward. It was argued that there
is sufficient evidence before the Commission about the attendance and participation
of the AWU and Mr Ward in the meetings. The union argued that this established
that the AWU has been genuinely trying to reach agreement.58
4. Considerations and conclusions
(a) Applications not valid
[24] The company’s first ground of objection was that the Commission cannot be satisfied
that the applications made by the unions are valid applications in relation to the requirements
of s.443(1)(a) of the Act. This was on the basis that the proposed industrial action would not
be protected action due to its inability to meet the common requirements for it to be protected
(breach of a good faith bargaining order) and its inability to retain immunity.
[25] Section 443(1)(a) states that the FWC must make a protected action ballot order if an
application has been made under section 437.
[26] Section 437(1) sets out who may apply for a protected action ballot order:
52 Transcript PN 2369 - 2372 and 2256 - 2278
53 Ibid PN1883
54 Ibid PN 2297 - 2299
55 Ibid PN 2382 and 1994 and Exhibit A4
56 Ibid PN 1994 - 1995
57 Ibid PN 2382
58 Ibid PN 1950
[2014] FWC 8391
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“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a
proposed enterprise agreement, or 2 or more such bargaining representatives
(acting jointly), may apply to the FWC for an order (a protected action ballot
order ) requiring a protected action ballot to be conducted to determine whether
employees wish to engage in particular protected industrial action for the
agreement.”
[27] In the Full Bench appeal decision in Mornington Peninsula Shire Council59
(Mornington Shire) one of the appeal grounds was that VP Lawler had erred in finding that
the actions defined in a particular question are capable of constituting “industrial action”
within the meaning of s.19 of the Act or alternatively, are not capable of being protected
industrial action.60 The question that the Full Bench addressed, therefore, was whether the
actions were capable of being “industrial action” within the meaning of the Act. The Full
Bench majority found that the actions in question “were capable of amounting to “industrial
action” as defined and therefore came properly be included in a list of questions for a
protected action ballot.”61
[28] I have considered carefully the two single member decisions where it was found that it
is necessary to consider whether the industrial action is capable of being protected industrial
action. I have not been persuaded to do otherwise than follow the approach taken by the
majority in the later Mornington Shire Full Bench decision. This decision is authority for the
proposition that the test is whether the proposed actions constitute “industrial action”.
[29] Section 408 states that “Industrial action is protected industrial action….”. Before
any action can be protected, it is necessary for it to be “industrial action”. Therefore, on the
basis of the Mornington Shire Full Bench decision, I do not accept the proposition that, for
there to be a valid application, the Commission must be satisfied that the proposed industrial
action is capable of being protected industrial action. For action to be protected, it must be
industrial action. Accordingly, when dealing with a protected action ballot order application,
the Commission needs to only be satisfied that it is industrial action that is proposed.
[30] In addition, the Federal Court decision in J.J Richards, in addressing the statutory
construction of section 443, found that:
“The terms of s 443(1) impose only two express statutory constraints upon the
mandatory obligation otherwise imposed upon Fair Work Australia to make a
protected action ballot order: one constraint is that there must be an application made
under s 437 (s 443(1)(a)); the other is that Fair Work Australia must be “… satisfied
that each applicant has been, and is, genuinely trying to reach an agreement …”
(s 443(1)(b)).
59 [2011] FWAFB 4809
60 Ibid at [3]
61 Ibid at [35]
[2014] FWC 8391
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It is not considered that any question arises of implying any further constraint into the
operation of s 443(1) other than the two which have been expressly identified by the
Legislature. Indeed, to attempt to do so would confront the difficulty of reading into a
statutory provision words which are not there. Any such attempt would improperly
propel the Court from its accepted role of interpreting the will of the Legislature into
the territory of itself redrafting legislation.”62
[31] The Full Court of the Federal Court’s decision in J.J Richards provides authority for
the proposition that there are no further constraints on the operation of s.443(1) other than
those identified by the Full Court. I rely on this decision in forming the view that it is
sufficient that an application has been made in order to meet the requirements of s.443(1)(a).
Accordingly, I do not accept the proposition that s.443(1)(a) includes the requirement for
consideration of whether or not the proposed industrial action is capable of being protected
industrial action. The Mornington Shire decision found that it is necessary for the proposed
action to be industrial action.
[32] I respectfully adopt both authorities and so, therefore, have not been persuaded that the
applications by the four unions are not valid applications. They are valid applications on the
basis they have all been made under s.437 of the Act and I am satisfied that the proposed
actions are industrial action. There is no evidence or submission before me that the proposed
actions are not industrial action.
[33] If I am wrong on this, in the alternative, I have not been persuaded that s.415 of the
Act is enlivened at this point in the process. This clause provides for protected industrial
action to have immunity except when the industrial action has involved, or is likely to
involve, personal injury (in this case - s.415(1)(a)).
[34] The first requirement in s.415 is that the industrial action be protected industrial
action. This cannot be so at this stage of the process because one of the common
requirements for industrial action to be protected industrial action is that the notice
requirements set out in section 414 must have been met (s.413(4)). Therefore, as it has not
yet been determined as to whether or not the employees can vote on the proposed industrial
action, s.415 is not enlivened at the time of determination of a protected action ballot order
application.
[35] Further, in relation to the issue of the applications not being protected industrial action
due to the unions having contravened DP Hamilton’s good faith bargaining order (s.413(5),
there is no finding before me, by a relevant body, that there has been a breach of DP
Hamilton’s order. There is no evidence that the company has made a formal application to
this effect, to any relevant body. The meetings before Johns C were private and no formal
finding of a breach of DP Hamilton’s orders has been presented. Absent a formal finding by a
relevant body, and as I have not been convinced that it is appropriate for me to do so within
the confines of the applications before me, I am unable to make a finding that the unions have
breached DP Hamilton’s order. Therefore, s.413(5) is not relevant in relation to these
applications.
[36] Further, s.408 of the Act provides for industrial action to be protected industrial action
if, amongst other things, it is employee claim action (s.408(a)). One of the requirements for
62 Ibid at [55] - [56]
[2014] FWC 8391
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employee claim action is that the industrial action has been authorised by a protected action
ballot (s.409(2)). Therefore, industrial action, under s.409 does not qualify to become
protected action until, amongst other things, it has been authorised by a protected action
ballot. At this point in the process, it has not yet been determined as to whether a protected
action ballot order will be issued. It would seem, therefore, that the requirement for the
proposed industrial action to be capable of being protected is somewhat akin to putting the
cart before the horse. It is noted that the Act specifically excludes the making of a protected
action ballot order from the scope of “industrial action” (s.438(2)).
(b) Not genuinely trying to reach agreement
[37] The company contended that the unions have not been, and are not, genuinely trying to
reach an agreement. This was on the basis that the unions were not bargaining in good faith
and that they had pursued, but not withdrawn, a non permitted matter, namely, the proposed
contractors clause and the claim in the revised log of claims.
[38] In relation to the contention that the unions have not been, and are not, genuinely
trying to reach agreement, the company referred to a number of issues in support of this
proposition. These included that there was not proper attendance and participation in the
meetings under the order and directions of the FWC (the delegates did not attend the meetings
endorsed by DP Hamilton), the only meetings between the parties were those under the
auspices of DP Hamilton and Johns C and that the unions have failed to agree to other
meetings. In particular, it was submitted that the ASU, by not attending any of the meetings,
has not been, and are not, genuinely trying to reach an agreement. Further, the company
argued that, whilst the AWU’s organiser had attended the meetings, as he was not called to
give oral evidence, the FWC could not be satisfied of the AWU’s bona fides in this regard.
[39] In relation to the issue of non permitted matters, the draft clause63 that was given to the
company by the unions, may appear to be terms restricting or qualifying the company’s rights
to use independent contractors. However, when the unions revised their logs of claims, at the
direction of Johns C, they proposed a security of employment claim. Such a claim, if it
sufficiently relates employees’ job security to the terms and conditions of contractors, would
not necessarily be a non permitted matter.
[40] The Full Bench in Airport Fuel Services summarised the legislation, jurisprudence and
the Explanatory Memorandum regarding this use. Amongst other things, the Full Bench
found that it is conceivable that a bargaining representative may be genuinely trying to reach
agreement even if the claims advanced contain non permitted matters. The Full Bench stated
further, that it is open to a bargaining representative to make it clear that it is not pursuing
claims for non permitted matters.64
[41] On the second day of the hearing, the unions withdrew the draft contractors clause and
reserved their right to continue to negotiate the claim in the revised log, which deals with the
security of employment of employees of the company.
[42] As the unions have withdrawn the contractors clause and have indicated that they
reserve the right to negotiate a security of employment clause, it is not possible to say that, on
63 Exhibit R3
64 [2010] FWAFB 4457 at [22]
[2014] FWC 8391
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this basis, the unions are not genuinely trying to reach an agreement. In terms of whether the
unions, prior to the revised log of claims on 1 October 2014, were genuinely trying to reach
agreement, the Full Bench in Australian Postal Corporation v CEPU65 found that:
“To suggest that the time at which a union can commence to genuinely try to reach an
agreement with an employer is the time at which it makes a claim that in Fair Work
Australia’s view does not contain prohibited content is to inject an unwarranted
degree of artificiality and technicality into what is intended to be “a fair, simple and
democratic process to allow a bargaining representative to determine whether
employees wish to engage in particular protected industrial action for a proposed
enterprise agreement.”66
[43] I am also guided by the words of the Full Bench in Alcoa of Australia Ltd v Australian
Workers’ Union - Western Australian Branch.67 The Full Bench found that:
“….the issue of permitted matters is but one of the factors to be taken into account in
determining whether an applicant has been genuinely trying to reach an agreement.”68
[44] Therefore, when assessing whether an applicant has been, and is, genuinely trying to
reach an agreement with the employer, the authorities generally require the Commission to
take account of all the circumstances and the factual scenario in each particular case. In these
matters, these include whether the applicants have been bargaining in good faith and whether
the unions are pursuing claims about non permitted matters.
[45] Taking into account all of the circumstances in these matters, I am satisfied that the
applicants have been, and are, genuinely trying to reach agreement with the employer. This is
on the basis that the applicants attended and participated in the meetings ordered by DP
Hamilton in September 2014. The applicants also attended and participated in the meetings
directed by Johns C. The applicants have engaged in the process of arranging further
meetings with the company. The applicants also made the decision to suspend their claim for
one agreement to be negotiated through the all sites committee. From the evidence of Mr
Vickers, in particular, it seems that, at the meetings in September and October 2014, the usual
bargaining process was engaged in by the applicants. From the written material before me, I
am satisfied that the AWU attended and participated in all of the meetings. In relation to the
ASU, it is accepted that, but for Mr Leydon’s illness, the ASU would have been in attendance
at the meetings. As indicated earlier, the ASU is part of the all sites committee. Any
correspondence from the committee was from each of the four unions which included the
ASU. It is also more than likely that, in the absence of Mr Leydon, the other unions
“represented” the ASU when necessary.
[46] Therefore, taking everything into account, I am satisfied that the four applicants have
been, and are, genuinely trying to reach an agreement with Esso, the employer of the
employees who are to be balloted.
65 [2010] FWAFB 344
66 Ibid at [48]
67 197 IR 355
68 Ibid at [23]
[2014] FWC 8391
13
[47] Section 443 sets out the requirements to be met for the granting of an application for a
protected action ballot order, 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.”
[48] The Commission has before it four applications for protected action ballot orders. The
applications have been made under s.437 of the Act by the AMWU, CEPU, AWU and ASU.
It is clear from the material before me that each of the applicants is a bargaining
representative of an employee who will be covered by the proposed agreement. Therefore, I
am satisfied that each of the applications has been made under section 437 of the Act.
[49] For the reasons set out above in paragraph 32 I am satisfied that each of the
applications made are valid applications pursuant to section 437 of the Act.
[50] Section 443(1)(b) of the Act requires the FWC to be 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. As set out in paragraphs 45 to 46 above, I am satisfied that each of the
applicants has been, and is, genuinely trying to reach agreement with Esso, the employer of
the employees who are to be balloted.
[51] Having been satisfied as to the requirements of s.443(1) of the Act, I am obliged to
grant each of the applications and to make a protected action ballot order in relation to each
application.
[52] At the conclusion of the hearing on 20 November 2014, it was indicated that, if
required, a prompt further hearing would be held to deal with the terms of the protected action
ballot orders. This will take place on Tuesday 9 December 2014 at 3.30pm.
THE FAIR WORK - AUBTRAJ AMMISSIONE AL GALP NOIS THE
[2014] FWC 8391
14
Appearances:
Mr L Buntman for The Australian Workers’ Union
Mr K Reidy for the Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
Mr J Cooney for Australian Municipal, Administrative, Clerical and Services Union
Mr D Vroland for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU)
Mr D Trindade of Clayton Utz for Esso Australia Pty Ltd
Hearing details:
2014.
Melbourne:
November 19, 20.
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