[2020] FWC 1012

The attached document replaces the document previously issued with the above code on 25 February 2020.

The appearances have been updated.

Associate to Commissioner Platt

Dated 25 February 2020

[2020] FWC 1012

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
(B2020/97)

COMMISSIONER PLATT

ADELAIDE, 25 FEBRUARY 2020

Proposed protected action ballot of employees of Sodexo Remote Sites Australia Pty Ltd.

[1] The following reasons for decision relate to the protected action ballot order 1 issued on Friday 21 February 2020.

[2] On 18 February 2020, an application was made by the Australian Workers’ Union (the AWU) seeking a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (the Act) in relation to employees of Sodexo Remote Sites Australia Pty Ltd (Sodexo) to determine whether eligible employees wish to engage in specified protected industrial action for a proposed enterprise agreement.

[3] The application was opposed by Sodexo on the basis that:

• The Commission cannot be satisfied that the AWU is, or has been, genuinely trying to reach agreement; and

• There is no application under s.437 of the Act as the application does not specify the group of employees to be balloted as required under s.437(3)(a), s.437(5) and s.443(1)(a) of the Act.

[4] Sodexo also sought, if the Application was granted, that the period of notice of protected industrial action be extended to 7 days.

[5] The matter was listed for hearing on 20 February 2020. The parties provided witness statements, a volume of material that arose from the Agreement negotiation process, and submissions.

[6] The AWU was represented by Mr Zach Duncalfe, Sodexo was represented by Mr Richard Dalton QC with permission pursuant to s.596 of the Act being granted on the basis of complexity and efficiency, despite objection from the AWU.

[7] There was no submission that the requirements of s.437(2A) of the Act had not been met. I was provided with a copy of a Notice of Employee Representational Rights (NERR) which had been issued by Sodexo.

[8] There was no submission that the requirements of s.440 of the Act had not been met, there was evidence on file that the Australian Electoral Commission had been served by email.

Factual Matrix

[9] Mr Douglas Heath (MUA Organiser) provided a Statement 2 and gave evidence.

[10] Mr Heath contended that:

• The AWU had been, and is, genuinely bargaining with Sodexo for an Agreement.

• The AWU attended bargaining meetings with Sodexo on 15 and 29 November 2019, 9 and 20 December 2019 and 3 February 2020.

• The AWU had also corresponded about the matter.

• As at 22 December 2019, the AWU and Sodexo had not reached agreement and Sodexo put a proposed Agreement to its employees. The Agreement was not ‘made’.

• Following the unsuccessful ballot, the AWU has sought further bargaining meetings with Sodexo.

• The AWU sought to meet post 3 February 2020.

• Whilst the AWU and Sodexo had reached agreement on some matters, a number of issues were outstanding.

• The AWU intended to continue meeting in an effort to resolve all outstanding issues.

[11] Mr Heath was cross-examined about the claims made by the AWU post the unsuccessful ballot and it was put to him that previously agreed items were subject to variation, that there was a departure from previous justifications for the claims and new claims were introduced. The correspondence between the parties was referred to. 3

[12] Mr Heath accepted that there were some changes in his bargaining position but that they were consistent with members instructions and the matters advanced in his earlier correspondence. Mr Heath contended he addressed the basis of revised claims in the meeting on 3 February 2020.

[13] Mr Michael Nazareth (National Industrial Relations Manager) submitted a statement and annexures 4 and gave evidence.

[14] Mr Nazareth’s evidence is that:

• Sodexo has been bargaining to replace the Sodexo Remote Sites (Offshore Operations) Enterprise Agreement 2013.

• He had attended bargaining meetings with the AWU on 5, 15 and 29 November 2019 and 9 and 20 December 2019.

• On 22 December 2019, he sent the AWU a document which recorded the state of negotiations at that time. 5

The scope of the proposed Agreement was still the subject of dispute.

In December 2019, Sodexo put a proposed Agreement to a vote, but it did not receive majority approval.

On 3 February 2020 the parties met. The AWU put a position that Mr Nazareth described as an entirely new set of claims as described in paragraph [13] of his statement.

On 5 and 6 February 2020, emails were received from Mr Heath which in his view contained further claims not discussed. 6

On 13 February 2020, Sodexo complained to the AWU that they were not bargaining in good faith. A meeting scheduled for 17 February 2020 was cancelled by Sodexo as a result.

Sodexo contended that the consequences of the action would impact on service provision and the difficulty in obtaining a replacement workforce (including transport, medical and licensing requirements) which justified the extension of the minimum notice requirement.

[15] During the hearing the AWU clarified what it meant by the “scope of the proposed Agreement” advising that it was the same scope as detailed in the Sodexo NERR with the addition of maintenance and site services work. Sodexo contended that the late definition of scope was another example as to why the Commission should not find that the AWU was genuinely seeking to reach Agreement.

Genuinely trying to reach agreement

[16] Section 443(1)(b) of the Act requires that the Commission be satisfied that each Applicant for a PABO “has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

[17] Sodexo contend that the bargaining conduct of the AWU in respect of its radical and unexplained bargaining position adopted in February 2020, which involved a retreat from its 2019 position, and the lack of definition as to scope, was a proper basis to conclude that the AWU is not genuinely trying to reach agreement.

[18] Sodexo referred the Commission to a number of decisions including:

• John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 7 - the Applicant bears the onus to demonstrate it has been, and is, genuinely trying to reach agreement.

Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 8 - whether an Applicant has been, and is, genuinely trying to reach agreement is a fact to be decided having regard to all of the facts and circumstances.

Total Marine Services v MUA 9 - the concept of genuinely trying to reach agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any test or criteria, the test in s.443 of the Act must be applied.

Coles Supermarkets (Australia) Pty Ltd v The Australasian Meat Industry Employees Union 10 - The requirements of s.433(1)(b) of the Act require the Commission to be satisfied that the Applicant has been, and is, genuinely trying to reach agreement involves two distinct temporal considerations. The use of the words “has been trying…” requires satisfaction that the Applicant has been trying to reach an agreement prior to the time of determination. The use of the words “is genuinely trying” requires satisfaction that at the time of determination the Applicant is trying to reach agreement.

[19] Sodexo contend that the facts in Australian Maritime Officers’ Union, & the Australian Institute of Marine and Power Engineers v Maersk Crewing Australia Pty Ltd, 11 where Deputy President Beaumont found that the Applicants were not genuinely trying to seek agreement, are analogous to this matter. I disagree. Whilst the parties in Maersk had also been bargaining for a lengthy period, making progress and the employer put an agreement to an unsuccessful vote - in the 7 month period after the vote the Applicants did not engage with the employer and then allegedly retreated to a significantly older position than advanced at the commencement of bargaining. In my view Maersk is distinguishable on the facts.

[20] In considering a similar bargaining regime, Vice President Lawler discussed the meaning of “genuinely trying to reach agreement” in Liquor, Hospitality and Miscellaneous Union - Western Australian Branch v CSBP Limited 12 and observed:

“[38] Secondly, the notion of “genuinely trying to reach agreement” does not automatically imply continual movement in the same direction by a negotiating party. Depending upon the circumstances, a negotiating party can withdraw a concession or offer on a particular issue in the negotiation, or renew a previously abandoned position, and still be genuinely trying to seek agreement. Such changes of position can legitimately arise for any number of reasons. For example changed trading conditions may provide an entirely reasonable basis for an employer to withdraw or reduce an offer to increase wages by a particular amount without detracting from the genuineness with which the employer is negotiating.”

[21] In Australian Federation of Air Pilots v Royal Flying Doctor Service of Australia Central Operations 13 Commissioner Hampton endorsed Vice President Lawler’s view and noted that great care should be taken in considering relative movements in positions as an indication of genuineness.

[22] That a party changes its bargaining position will not always be inconsistent with it genuinely trying to reach agreement.

[23] Having reviewed the documentary evidence and having heard the explanations of Mr Heath as to the changes in the AWU’s position, I have concluded that the AWU has been, and is, genuinely trying to reach agreement.

[24] On the facts before me, I am satisfied that the AWU has met the requirements of s.443(1)(b) of the Act.

Application has not been made under s.437

[25] Sodexo assert that as the initial application by the AWU did not specify in detail the persons to be balloted, the application could fail.

[26] One matter not in dispute is that the scope of the Agreement is in dispute.

[27] Whilst the AWU draft order relied on the words “covered by the Agreement” as provided for in s.437(5) of the Act, I agree with Sodexo that this is not an appropriate course where scope is in issue.

[28] The relevant scope of the proposed agreement is that proposed by the Applicant. 14

[29] Prior to the hearing, the Commission of its own motion sought further detail about the persons sought to be covered by the Agreement from the AWU, and subsequently granted permission to the AWU to amend its application pursuant to s.586 of the Act over the objection of Sodexo. This scope is reflected in the order that I have published.

[30] On the facts before me, I am satisfied that the AWU has met the requirements of s.437(4) of the Act.

Extension of the notice period

[31] The evidence as to the impact of the proposed industrial action given by Mr Nazareth was not disputed. The services Sodexo provides are on remote offshore platforms. The claims are somewhat novel and include providing only vegetarian meals. I accept that the reliance on vegetarian meals could adversely impact on the capacity of Sodexo to provide meals using its existing supplies. I also accept that replacement labour may be difficult to procure in light of the potential need to undergo training and assessments and potentially licensing requirements.

[32] In CEPU v Australian Postal Corporation, 15 Vice President Lawler discussed the meaning of “exceptional circumstances”, stating:

“Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees’ bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.”

[33] Whilst decided in a different statutory context, the approach taken in the above passage has been adopted by Members of the Commission in the consideration of s.443(5) of the Act.

[34] Applying this approach to the facts in this matter, I find that exceptional circumstances exist within the meaning of s.443(5) of the Act and extend the notice period to 7 days.

al of the Fair Work Commission with member’s signature.