[2014] FWC 6132
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.229—Bargaining order

Esso Australia Pty Ltd
v
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers’ Union (AWU); Australian Municipal, Administrative, Clerical and Services Union (ASU)
(B2014/1204)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 5 SEPTEMBER 2014

Application for Bargaining in Good Faith Orders - Site Meetings and/or All Sites Committee Meetings.

[1] On 4 August 2014 the applicant, Esso Australia Pty Ltd (‘Esso’), filed an application under s.229 of the Fair Work Act 2009 (‘the Act’) for a bargaining in good faith order directed at four trade unions acting as bargaining representatives. The application was opposed by the four bargaining representatives.

[2] The four agreements currently in place and which the parties seek to replace are -

[3] Each of the Current Agreements has a nominal expiry date of 1 October 2014.

[4] Notices of Representational Rights were issued by Esso on 24-25 June 2014. It is not in contention that the following are default bargaining representatives pursuant to s.176(1)(b) for each of the following negotiations:

[5] Conciliation was unsuccessful. Submissions were filed in accordance with directions. I have taken account all of the submissions put and evidence led in the proceedings.

[6] The respondent unions were given leave in directions, at their request, to file a cross application directed at alleged breaches of bargaining in good faith provisions by Esso. They did not file a cross application.

The Act and Authorities

[7] I was referred to a number of decisions including Flinders Operating Services Pty Ltd t/a Alinta Energy v ASU, CEPU and AMWU 2, AMWU3, AMIEU v T&R Murray Bridge Pty Ltd4, LHMU-WA v Health Solution (WA) Pty ltd t/a Peel Health Campus5, Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia6, NUW v Linfox7, Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia8, JJ Richards and Sons Pty Ltd v Transport Workers’ Union of Australia9, and Finance Sector Union of Australia10. I have had regard to these decisions.

Decision

[8] The order sought is that the relevant bargaining representatives for each of the agreements attend bargaining meetings with Esso at four separate site meetings and ‘table their claims in respect of the replacement enterprise agreement for the ... Agreement and, in the remaining time, engage in substantive negotiations in respect of those claims.’ Further, the orders sought provide that ‘no person’ other than the bargaining representatives for that replacement agreement attend except with the prior approval of Esso. Finally, the applicant seeks a report back to the Commission regarding the progress of bargaining and other matters.

[9] Esso relies on s.230(3)(a), and submits that the bargaining representatives have not met or are not meeting the good faith bargaining requirements. They submit that the bargaining representatives breached s.228(1)(a) by not attending and participating in meetings at reasonable times. They also rely on other provisions of the Act.

[10] I am satisfied that a number of technical requirements for an order are met, including the requirements set out in ss.229(1)-(3). The facts concerning these requirements are conveniently set out in the statement of William Vickers, the Manager Industrial Relations of Esso 11 and were not in contention. However, there was disagreement about whether or not the requirements of s.229(4) and s.230 are met, and whether discretionary considerations warrant an order being issued if the various jurisdictional requirements are met. These issues are dealt with below.

Section 229(4) - Did Esso have the required concerns and give a ‘written notice’ setting out those concerns, and reasonable time to respond?

[11] On 31 March 2014 Mr.Peter Mooney on behalf of the AMWU, AWU, ASU and ETU repeated union proposals for ‘rolling over’ of the previous agreements, and sought a meeting of the Esso All Sites Committee (EASC) on 11 June 2014 in order for unions to formulate their log of claims. He said that these proposals had been previously put on 26 March at an EASC meeting. The EASC is a committee formed on or around 1998-2000, usually with 35-40 people in attendance. It meets for 5-6 hours, with 1-2 hours for Esso to present to the EASC, 2-3 hours for unions to discuss matters, and the remaining time the unions report back to management. It has been used for collective bargaining and for unions to raise and negotiate issues. It has no legal status, and has been used in conjunction with other forums such as the Interest Based Problem Solving (IBPS). There have been 2 meetings this year, 1 in 2012 and 2013, 3 in 2010, 2 in 2009, and 6 in 2008. In 2008 it was the forum for enterprise bargaining, and in previous years as well 12.

[12] On 1 May he asked for details of the ‘business issues identified at each site by our [ie.Esso’s] local management’ which had been raised in an Esso letter on 24 April 13. On 26 June 2014 he sought meetings of the EASC to begin bargaining on replacement agreements.

[13] Esso wrote to Mr.Mooney on 1 July 2014 stating:

[14] On 3 July Mr.Mooney replied stating that Esso could put its view about site level discussions at a meeting of the EASC and that Esso had to attend EASC meetings to bargain in good faith 15. On 30 July Mr.Mooney wrote to Esso advising that the unions had passed a unanimous resolution that the unions and delegates are to negotiate with Esso management ‘only at the EASC level’16.

[15] Esso sent an email to Mr.Ward, AWU, on 16 July 2014 stating its ‘need’ to have site based discussions on the new enterprise agreements, and stating that:

[16] In examination in chief Mr.Ward accepted that this meant that if he as a bargaining representative failed to attend the scheduled site based meetings this would be taken by Esso to be a ‘failure to comply with good-faith bargaining requirements’ 18.

[17] In my view Esso expressed its concerns on 1 July 2014 that the unions were not meeting the ‘good faith bargaining’ requirements if they refuse to attend and negotiate at ‘Site/EA-based meetings’. They gave a written notice about this in the form of a letter. They gave the unions a reasonable time to respond to those concerns. The unions responded by rejecting their invitation to have site level discussions (discussed below). The requirements of s.229 are met. Even if they are not in part in the circumstances I am satisfied of the matters set out in s.229(5).

Section s.230(3)(a)(i) - Did the Union Bargaining Representatives Fail to Meet the Good Faith Bargaining Requirements by not attending site meetings?

Site Bargaining Meetings

[18] Esso invited the employee bargaining representatives to four bargaining meetings as follows:

[19] I will call these meetings ‘site meetings’ to distinguish them from EASC meetings.

[20] Mr.Jim Ward, the AWU bargaining representative, advised Esso on 23 July 2014 with respect to these proposed dates that ‘V Sounds fine to me’ 20.

[21] However, on 23 June 2014 a number of trade union delegates had attended a meeting of the Esso All Sites Committee (EASC) and resolved:

[22] On 26 June 2014 the ETU wrote to Esso seeking meetings of the EASC to negotiate ‘the renewal of Esso Enterprise Agreement/s’, and proposing meeting dates of the EASC to undertake these negotiations 22.

[23] On 30 July 2014 Mr.Peter Mooney, ETU Branch Organiser, wrote to Esso providing a log of claims, and advising Esso that the unions and EASC delegates had met and unanimously endorsed the following resolutions:

[24] The letter set out a schedule of meetings to occur through the EASC 23.

[25] Mr.Vickers gave evidence that he was also verbally advised by Mr.Mooney on 30 July that ‘the mass meetings had unanimously endorsed the EASC as the only forum through which negotiations could be conducted and further advised that there would be no attendance at any site/agreement based meetings.’ 24

[26] Mr.Vickers also gave evidence that consistent with the resolution passed at the mass meeting, the relevant union organisers and delegates then refused to attend the agreement-specific bargaining meetings Esso had convened for 1,5 and 12 August, and Esso accordingly cancelled those meetings 25.

[27] It was put to Mr.Vickers that there was no refusal to attend, rather there was a ‘counterproposal as to how to conduct meetings’. Mr.Vickers pointed out that union officials had told Esso that ‘nobody would be attending site based meetings. It’s very clearly stated, nothing ambiguous in it ...’ 26 Mr.Ward gave evidence that he refused to negotiate at site based level, and these issues can be discussed at EASC level27. Mr.Mooney gave similar evidence28, and Mr.Dodd agreed with him.

[28] In my view it was clear that unions refused to attend the site meetings proposed. The fact that unions say they were willing to attend EASC meetings does not change this fact. To the extent that there was any doubt, the evidence of Mr.Vickers was consistent and credible and I accept that evidence in preference to other evidence. I generally in this decision prefer his evidence to that of those opposing Esso’s application.

Was the failure to attend site bargaining meetings a breach of bargaining in good faith requirements?

[29] Did the bargaining representatives attend and participate in meetings at reasonable times within s.228(1)(a), or did they fail to engage in good faith bargaining by not attending these site meetings?

[30] Esso and the bargaining representatives had a difference of opinion as to the appropriate forum or meetings at which bargaining should take place. Previous negotiations for enterprise agreements had been conducted through the EASC. Another forum, the Interest Based Problem Solving (IBPS), had been used to address a number of site specific issues. However, Esso was and is not satisfied with the outcomes from these meetings. A number of issues were raised by the parties including the alleged cumbersome nature of the EASC process, the alleged failure of Esso in negotiations in 2011 of Esso to achieve its productivity ‘priority items’, the allegedly burdensome nature of site meetings for four agreements replacing the EASC dealing with four agreements, and other matters.

Esso’s view of the ‘cumbersome’ nature of the EASC

[31] Esso considers the EASC to be ‘cumbersome’ and ‘inefficient’ as the means of negotiating new enterprise agreements for 2014. Mr.Vickers gave evidence that the EASC meeting on 26 March 2014 was held at Sale and 30 delegates and union officials were in attendance, the same for the 23 June 2014 meeting. These employees were paid for their attendance, including possible penalty rates, and Esso has to back-fill employees absent thus incurring additional penalty rates to bring staff in ‘off shift’ 29. Mr.Pickett of Esso sent an email to offshore delegates on 4 August 2014 explaining that:

[32] Similar emails were sent to LIP/LFD delegates 31.

Rejection of Esso’s ‘priority items’ in 2011

[33] In 2011 Esso tabled 5 ‘priority items’, these being:

[34] Except in part for annualised pay offshore, these matters were not agreed and were not included in the 2011 agreements, because unions rejected them 32. According to Mr.Vickers:

[35] Mr.Mooney gave evidence that while Esso claimed this, Esso had dropped the 1414 roster for onshore, and that:

[36] Mr.Steve Dodd, union organiser, gave evidence that the EASC was ‘an effective and efficient forum for negotiations for more than a decade now’, and listed site based issues that had been ‘canvassed through the EASC’. He also said that it reduced the complexity of negotiations and allows for the maximum use of time and resources of all of the parties 35.

[37] Mr.Jim Ward, AWU Organiser and OHS Officer, gave evidence that such forums enable discussions to occur, and that the ‘additional burden’ of attending site enterprise negotiation meetings was unnecessary and ‘inherently unfair on the capacity of the AWU to adequately represent its members interests during negotiations’ 36.

[38] The Joint Unions in their submissions stressed that the EASC is an effective forum for raising and discussing ‘site specific issues’, and for negotiating enterprise agreements, and that it is reasonable and consistent with bargaining in good faith obligations for negotiation to occur as their proposed and ‘as historically has occurred’. It said that the role of such a body had been recognised by the FWC 37. However, the FWC has always stressed that what is reasonable in that context will depend on all of the circumstances, including consideration of issues such as the number of delegates who seek to attend, the scope and nature of issues to be discussed, and the operational needs of the business, and other matters38.

[39] There was some debate about the reasons why the 2011 agreements did not include Esso’s priority items. In cross examination it was put to Mr.Vickers that seven meetings in 2011 of 5-6 hours each produced an agreement, so that the process was not cumbersome. Mr.Vickers said that the agreements ‘generally failed to address the issues that the company wanted addressed’, and that is why the company produces the same agenda each year 39. It was put to Mr.Vickers that Esso did not ‘stand its ground’, but ‘was willing to roll over an agreement’ with a bit for annualised salary down the track. Mr.Vickers said that Esso had a view at the time40.

Bargaining representatives and the EASC

[40] Esso also submit that the EASC is problematic because pursuant to s.176(3) a bargaining representative cannot be such unless it is entitled to represent the industrial interests of the employee in question. It submits that if bargaining occurs through the EASC, unions not entitled to represent an employee will be present during and participating in negotiations for that agreement. For example, the ASU is the only bargaining representative for the replacement for the Southbank Agreement, but the AWU, AMWU and ETU will be present during negotiations if the EASC is used 41.

[41] The Joint Unions say that there is no prohibition on ‘non-bargaining representatives from taking part in bargaining’, and that Esso is wrong to submit that other unions cannot influence each others’ claims and conduct 42.

Conclusion on s.230(3)(a)(i)

[42] Esso proposed site meetings but also said that EASC meetings will take place for bargaining purposes. Mr.Vickers said that negotiations should not occur ‘only’ through the EASC 43. Esso told the EASC meeting on 23 June 2014 that it would ‘reconvene the EASC to discuss generic or cross-site topics whenever it was appropriate’44, and this is reflected in the minutes45. Mr.Vickers said in cross examination that:

[43] The employee bargaining representatives refused to attend site level meetings, and maintained that negotiations should only occur at EASC meetings. The statement made in final submissions that site level discussions might occur ‘down the track’ 47 is inconsistent with clearly stated positions, and is something of a chimera. In truth the unions have adopted a firm even rigid position on the issue.

[44] A number of submissions were made by the unions opposing the application including that there is no guarantee that productivity benefits will occur at site level 48, that I should disregard the history of bargaining at the EASC49, that the union position is equally as reasonable as Esso’s50, that unions have not refused to ever meet at site level51, that the union is seeking one agreement to cover Esso52, that the productivity objects of the part are aspirational and do not determine whether or not unions have been bargaining in good faith53, that site level bargaining may not lead to any agreement54, that site level meetings are futile55, that EASC members can deal with site level issues56, Esso is indifferent to the attendance of representatives57, that Esso seeks to weaken the bargaining position of unions58, that there has been no bargaining because the employers served their log of claims on 4 August59, that unions are engaged in legitimate tactics which the Commission should be slow to interfere with60, and other matters. I have had regard to these and other submissions.

[45] The Esso agreements are already site specific to a large extent. Esso’s list of claims 61 are site specific. They appear to be consistent with the objects of the enterprise bargaining part of the Act, in that they seek to ‘deliver productivity benefits’ on the evidence of Mr.Vickers. He gave evidence that:

[46] He gave evidence that Esso made a presentation to the 23 June 2014 EASC meeting in as follows 63:

[47] On 11 August he wrote to the unions in the following terms:

[48] There is a certain logic in dealing with site level productivity or flexibility issues in site level discussions in part or in whole, although to some extent the bargaining representatives may be company wide. On the evidence of Mr.Vickers and other material before me they appear to be a reasonable means for the parties to seek to address site specific issues. It is premature and unhelpful to describe them as futile. They should occur, and they should be ongoing having regard to these issues.

[49] Both sides relied on the history of use of the EASC in bargaining to support their case. The respondents pointed to the fact that ‘all negotiations for enterprise agreements between the Respondents and the Applicant have taken [place] in that forum’ 65, and that a key reason for the EASC was ‘for the purpose of negotiating enterprise agreements with Esso. This has proved an effective and efficient forum for negotiations for more than a decade now’66.

[50] Has it been and effective and efficient forum? Unions are satisfied with the forum, and strongly support it as the means of negotiating the 2014 agreements. Esso is not satisfied. Esso submits that it was not successful in achieving implementation of its ‘priority items’ in the 2011 bargaining round, except with respect to a trial of annualised salary arrangements 67. As the employer submitted, this was a trial that started before the 2011 bargaining round, so it ‘was a status quo’, and ‘There was no benefit’68.

[51] The fact that Esso signed the relevant agreements does not change this. According to the various witnesses the unions opposed Esso’s priority items, and opposed them successfully. Mr.Mooney wrote to Esso on 9 November 2011 in which he said that ‘we reject all offers’ 69. In a letter of 30 September 2011 Mr.Mooney agreed to a trial of annualised salary offshore, said that the unions and delegates were ‘not prepared to commit to an outcome or agree to an enabler ... for the start of a 1414 roster’ in offshore, were ‘not willing to commit to an outcome or agreed to an enabler’ concerned Designated Person in Charge offshore, were ‘not willing to commit to an outcome or agree to an enabler’ concerning annualised pay onshore, and were ‘not willing to commit to an outcome’ on operating area flexibility and workforce coverage flexibility onshore70. No party indicated any provision in the agreements which contained any of the ‘priority items’ other than an annualised salary trial, which was a carryover. Mr.Mooney was taken to these documents during cross examination and agreed that the unions had rejected these proposals:

[52] He also claimed that Esso had made no complaints about the union refusing to consider its priority items and had made no application to the Commission about their bargaining conduct 72. However, that does not change the fact that trade unions disagreed with and rejected Esso’s ‘priority items’ during the 2011 negotiations.

[53] This may be relevant because, as the employer submitted in its final submissions:

[54] It is important to stress that there is and was no obligation on the employee bargaining representatives to make concessions or to reach agreement (s.228(2)), and on one view this means that the failure of the agreements to provide productivity benefits is not relevant.

[55] If this is not correct, in the alternative, there is no need to confine the ‘productivity benefits’ referred to in the objects of the enterprise agreements part of the Act to ‘concessions’ given that the parties jointly can develop agreements that benefit productivity, and in fact this is what the Act encourages. The object of the enterprise agreement part of the Act provides:

[56] The objects of this Act set out in s.3 reinforce this. On this view, in the alternative, the 2011 agreements that resulted from EASC forums are on the evidence before me difficult to reconcile with the aspirational object of the part.

[57] I also need to assess the issue of whether or not the EASC forum given its nature is an efficient or effective means of bargaining so that it be the exclusive or predominant forum for negotiating on site level issues. In this case the site specific negotiations proposed by Esso in my view have the advantage, given earlier evidence, that they may be less cumbersome than negotiations concerning four agreements during meetings of the EASC with a large number of participants.

[58] Further, I am concerned that the respondents appear to have conflated the EASC with the statutory role of bargaining representatives.

[59] The scheduling of site meetings does not preclude either site level agreements or one Esso wide agreement. Both will depend on the decisions of the parties. The unions claim that site level negotiations weaken their bargaining position, but that remains to be seen. At this stage I am not prepared to make that assessment on the evidence before me. Nor am I prepared to accept that such negotiations are contrary to the interests of employees. If they lead to productivity improvements that assist Esso they may conceivably also assist employees, or assist employees in some other way.

[60] Difficulties with attendance at multiple meetings can be managed. Mr.Ward gave evidence that the site meetings were arranged after discussion between himself and Ms.Rowe of Esso of appropriate dates. The evidence of Mr.Vickers was to the same effect. This was it appears a satisfactory manner of dealing with such issues 74. On the material before me Esso is not indifferent to the attendance of bargaining representatives, but made for example reasonable attempts to accommodate Mr.Ward’s needs.

[61] In my view, given all the circumstances, I find that the failure of the employee bargaining representatives to attend the Esso site specific meetings was a failure to meet the good faith bargaining requirement to attend and participate in meetings at reasonable times (s.228(1)(a)).

[62] It is not necessary to deal with other issues.

The Orders

[63] The position of the employee bargaining representatives is considered and unambiguous, despite challenge from Esso. In all the circumstances I am satisfied of the matters set out in ss.230(1)-(4), including that it is reasonable in all the circumstances to make an order. I have decided that I should issue orders requiring the attendance of the employee bargaining representatives at the site based meetings specified in Exhibit E1 in order to negotiate new enterprise agreements to replace the current enterprise agreements. These are the draft orders set out in paragraphs 2(a)-(b), 3(a)-(b), 4(a)-(b), 5(a)-(b), and part of paragraph 1 excluding the last two lines. Persons attending the meetings should be bargaining representatives for each agreement, and attendance of others is a matter of agreement.

[64] Before doing so I propose to give the parties the opportunity to themselves fix site level meeting dates. This should be done quickly, even within days. I give leave to the applicant to request the issuing of orders on the basis of materials already led, without further hearing or submissions, if agreement is not quickly reached. If I receive a request I will issue orders.

[65] I will not issue other parts of the order sought at this stage, although I have formed the view that site based meetings should be ongoing, and that the parties should arrange further site meetings.

[66] I will also list the matter for report back on 29 September 2014 regarding the matter including further orders.

DEPUTY PRESIDENT

Appearances:

Mr D Trindade for the applicant

Mr D Vroland of the AMWU, Mr K Reidy of the ETU, Mr D Leydon of the ASU, and

Mr L Buntman of the AWU.

Hearing details:

2014

Melbourne

26 August and 29 August

 1   Exhibit E2, paragraphs 34-35

 2   [2010] FWA 4821, 30 July 2010

 3   [2014] FWC 3724, 5 June 2014

 4   [2010] FWA 1320, 26 February 2010

 5   [2010] FWA 5536, 29 July 2010

 6   [2012] FCA 764, 19 July 2012

 7   [2013] FWC 8428, 25 October 2013

 8   [2012] FWAFB 1891, 22 March 2012

 9   [2010] FWAFB 9963, 23 December 2010

 10   [2010] FWA 2690, 9 April 2010

 11   Exhibit E3, paragraphs 1-29

 12   Exhibit E3, paragraphs 13-22; Exhibit ETU1, paragraphs 6-9

 13   Exhibit ETU 1, Attachment PM1-4.

 14   Applicant submissions, Attachment 10

 15   Exhibit ETU 1, Attachment PM5

 16   Exhibit ETU 1, Attachment PM6

 17   Respondent submissions, attachment 21

 18   PN1088

 19   Exhibit E3, paragraphs 33-35

 20   Applicant submissions, Attachment 12 (Mr Ward email)

 21   Applicant Submissions, Attachment 7

 22   Applicant Submissions, Attachment 9

 23   Exhibit E3, paragraph 40; Applicant submissions, Attachment 13

 24   Exhibit E3, paragraph 39

 25   Exhibit E3, paragraph 42

 26   PN662-665

 27   PN1097-1101

 28   PN1155-1157

 29   Exhibit E3, paragraphs 19-20

 30   Joint Union Submissions, attachment 23

 31   Joint Union Submissions, attachment 24, 25

 32   Exhibit E3, paragraph 49-51

 33   Exhibit E3, paragraphs 52-53

 34   Exhibit ETU 1, paragraphs 18-19

 35   Exhibit AMWU 1, paragraphs 11-15

 36   Exhibit AWU 1, paragraph 19

 37   Exhibit Joint Unions 1, paragraphs 21-26

 38   Alinta [2010] FWC 4821, paragraphs 152-155

 39   PN724

 40   PN730-PN731

 41   Exhibit E2, paragraphs 32-35

 42   Exhibit Joint Unions 1, paragraphs 65-74

 43   Exhibit E3, paragraph 53

 44   Exhibit E3, paragraph 24(e)

 45   Applicant submissions, Attachment 7

 46   PN716

 47   PN1758

 48   PN1537

 49   PN1565

 50   PN1593

 51   PN1601

 52   PN1612; PN1679

 53   PN1614

 54   PN1615

 55   PN1628

 56   PN1629

 57   PN1650; PN1707

 58   PN1651

 59   PN1725

 60   PN1768

 61   Applicant submissions, Attachment 14

 62   Exhibit E3, paragraph 44

 63   Exhibit E3, paragraph 24

 64   Joints Unions Submissions attachment 26

 65   Exhibit ETU1, paragraph 8

 66   Exhibit AMWU 1, paragraph 11

 67   Esso Offshore Enterprise Agreement 2011, Part B, Applicant Submissions Attachment 1

 68   PN1338

 69   Applicant Submissions, Attachment 29

 70   Applicant Submissions, Attachment 26

 71   PN1225

 72   PN1225-1235

 73   PN1336

 74   PN1075-1076

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