Fair Work Act 2009_

s 459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Application to extend 30 day protected action period - application opposed - employer claims Union 'stalling' finalisation of bargaining - jurisdictional prerequisites met - exercise of discretion - employer concerns not determinative - no good reason for refusal of extension of protected action period - orders made.

[1] On 17 December 2015, the Transport Workers Union of Australia (the 'Union') filed an application, pursuant to s 459(3) of the Fair Work Act 2009 (the 'Act'), to extend the period in which certain industrial action may be taken in respect of the protected action ballot order made by the Fair Work Commission (Roberts C) on 30 October 2015 [PR573440], for a further period of thirty days. The employer is Remondis Australia Pty Ltd ('Remondis'), a provider of waste management services under contract to Gosford and Wyong Councils in New South Wales.

[2] The application is made in the context of bargaining between the Union and Remondis for a new enterprise agreement. This process has included an application filed by Remondis under s 240 of the Act, for the Fair Work Commission's (the 'Commission') assistance with a bargaining dispute. That application has involved two conferences before me on 26 November and 21 December 2015.

[3] The provisions governing the grant of an extension of a protected action period are set out in s 459(3) of the Act as follows:

(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

[4] The use of the word 'may' s 459(3) confers a discretion on the Commission as to whether to grant such an application upon satisfaction of the two jurisdictional preconditions set out in sub-sections (a) and (b). Both parties submitted that these two jurisdictional preconditions have been met. I am satisfied this submission is correct. However, Remondis opposes the extension of the thirty day period and asks the Commission to exercise its discretion to refuse the application. Given the original 30 day protected action order expires on 25 December 2015, the application was brought on for hearing at short notice.

[5] At a hearing of the application on 22 December 2015, Mr L Maroney appeared for the Union and Mr N Chadwick, Solicitor, was granted permission to appear, pursuant to s 596 of the Act, for the respondent. Mr Maroney had opposed Mr Chadwick's appearance. In granting permission to appear, the Commission observed that while the matter did not appear to be particularly complex, Mr Chadwick's submissions did raise some interesting arguments in respect to the exercise of the Commission's discretion under s 459(3) of the Act. However, Mr Chadwick foreshadowed that an adjournment would be sought if permission was refused and alternative in-house representation was needed to be briefed. As natural justice would ordinarily require that such an adjournment request be granted, the very purpose of the urgent listing and determination before the expiry of the 30 day period would become nugatory if the matter was not heard and determined before 25 December 2015. Ironically, this would have defeated the Union's purpose in making the application. Another consideration was that Mr Chadwick had been granted leave to appear for Remondis, without any objection being taken, in the related conciliation proceedings, under s 240 of the Act, as recently as one day earlier. He is obviously across all the issues relevant to the wider bargaining dispute. In these circumstances, I was satisfied that granting Remondis permission to be represented by a lawyer in this matter would enable the matter to be dealt with more efficiently (s 596(2)(a). Permission was therefore granted.

[6] In passing, I was somewhat surprised by the Union's opposition to Mr Chadwick's appearance. Was s 596 now being used as a form of surprise tactical manoeuvre to secure some sort of strategic advantage between an experienced Union advocate and an unrepresented employer? I trust this was not the intention and would be disappointed if it was.

[7] Mr Ian Hankinson, a Union Delegate, gave oral evidence in support of the application. He described the background to the recent negotiations and the various offers which had been put forward by both parties as recently as the previous day in the Commission. He noted there had been no industrial action taken during the negotiations, but believed the negotiations had reached a 'stalemate'. Mr Hankinson said that the respondent had offered a final package of changes, but had not been prepared to consider any new offers by the Union on behalf of its members.

[8] Mr Ritchie Venn, Manager - Central Coast Region for Remondis, provided a two page statement, which I reproduce below:

'1. I am employed by Remondis Australia Pty Limited as the Manager - Central Coast Region. I have been employed with Remondis since November, 2012.

2. I have been involved in the negotiations for a new enterprise agreement at the Somersby Depot since April, 2015.

3. I make this statement in response to the Union's Application to extend the 30 day period in which industrial action is authorised by a Protected Action Ballot.

4. The Protected Action Ballot was completed and the declaration of results announced on 25 November, 2015. Since the announcement of the ballot results, no protected action has been engaged in by the Union and/or its members at the Somersby site.

5. On 26 November, 2015, Remondis and the TWU attended at the Fair Work Commission for conciliation proceedings before Deputy President Sams. Deputy President Sams was advised that there were 3 bargaining matters in dispute between the parties. At the end of the proceedings, it was agreed that an offer by the Company in respect of the 3 issues in dispute would be tabled by the TWU to its membership at the Somersby site.

6. On 2 December, 2015, I was advised by the TWU delegate Ian Hankinson ("Mr Hankinson") that the drivers had met and rejected the Company's offer. I requested further information from Mr Hankinson about the drivers position and was advised that:

(i) On the issue of the 2.5% pay increase, the drivers wanted an unconditional 2.5% bonus payment to be paid monthly to each Driver on all wages earned by each Driver during the month.

(ii) On the issue of the payment of the sick leave allowance I was told the vote was a 50-50 split in that the Gosford Drivers at their meeting voted to accept it but the Wyong Drivers did not.

(iii) On the issue of payment of EBA rates to labour hire staff I was advised the drivers wanted this written into the EBA.

7. Since the discussion with Mr Hankinson on 2 December, 2015 there has been no offers or counter-offers put by the TWU to finalise the EBA.

8. I am aware that the drivers are stalling the finalisation of the EBA negotiations because it was admitted by the delegates that they need the negotiations to stall pending their discussions with Councillors and Members of Parliament regarding preserving rates and conditions in the upcoming Tender Documentation. I explained to the delegates I needed to advance the finalisation of the EBA in the interests of providing a stable platform for the continuity of services which is in the best interests of the Community, the Council and the drivers. '

[9] In cross examination, Mr Venn agreed that the Union had put a revised position the previous day, but it did not amount to any significant shift in its position. The Union had also agreed to consider redrafting its site rates claim. However, Mr Venn believed the Union had raised an entirely new claim yesterday (cl 5.4 of the existing agreement) and was now seeking to 'stall' the negotiations (see para [8] of his statement).

[10] Given the urgency and absence of transcript, I have not attempted to set out all of Mr Hankinson's and Mr Venn's oral evidence, but have taken all of the evidence into account in determining this application.

[11] Mr Maroney submitted that there was no good reason why the application should not be granted. Mr Venn had made clear in his cross examination that various offers were still being put and discussed by the parties. This was contrary to Mr Venn's statement at para [7] above. Given this concession it was clear that the Union was still genuinely seeking to reach an agreement with Remondis.

[12] While relying on Mr Venn's evidence as to his belief of the Union 'stalling', Mr Chadwick opposed the extension of the thirty day period on three primary bases:

1. No industrial action had been taken so far by the employees; See: Liquor, Hospitality and Miscellaneous Union v Griffith University [2010] FWA 2365 per Richards SDP.

2. The Union and the Delegates had been 'inactive' in bargaining since 26 November 2015, save for two matters:

a. On 2 December 2015, the Union agreed to put the Company's proposal to its members and did so, but put no counter-proposal; and

b. In the previous day's proceedings, the Union advanced a new claim.

3. In the grounds for the application, the Union said that if the application was not granted, it would take industrial action anyway (Mr Maroney clarified this by indicating it was not a threat of unprotected industrial action, but it was intended to refer to the current thirty day protected action period).

[13] Both parties relied on single member decisions of Fair Work Australia (FWA, as the Commission then was) in 2009 and 2010 to support their respective cases. I was not able to find any Full Bench authority, or any recent single member arbitrated decisions on the principles to be applied in the exercise of the Commission's discretion under s 459(3) of the Act. This may be, as I said in the proceeding, because these earlier decisions were made at a time when the Act itself, and these new protected action provisions in particular, were very new, novel and untested. Invariably, in my experience, most of the applications to extend the thirty day protected action period are now routinely dealt with 'on the papers', with no opposition.

[14] There is a very real statutory distinction between the provisions relating to the initial grant of a protected action ballot order (s 443) and an extension of the thirty day protected action period (s 459). The mandatory wording ('must') of s 443(1) 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 [emphasis added].

[15] Section 459(3) requires two mandatory jurisdictional tests which, if satisfied, provide a discretion to the Commission to extend the thirty day protected action period. In my view, it seems logical that if there is a discretion to extend a protected action period, then the criteria under which it was originally made, is a relevant consideration in the discretionary exercise. In other words, is the Union still genuinely trying to reach an agreement with the employer? In this case, I am satisfied that it is.

[16] Moreover, I accept that there has been no protected action taken to this point and the Union and its delegates are genuine in not wishing to cause disruption or inconvenience to the community, the Councils or Remondis by taking protected action. One of the grounds that Remondis put to oppose the grant of an extension was that there had been no protected action to this point. I find it ironic, if not a little amusing, that a Union is criticised by an employer for not taking industrial action. In any event, given the fact the Parliament has permitted a full 60 day period of protected action, subject to the statutory tests, I do not consider that the Union not taking industrial action for half that period is a sound or rational basis for refusing to extend the protected action period.

[17] The thrust of Mr Venn's evidence was his belief that the Union was 'stalling' the finalisation of the Agreement. Of course, in many robust sets of negotiations, timing - be it haste or stalling - will be a decision taken by one party or the other for tactical reasons. There is nothing inherently heinous or unusual about that.

[18] However, it seems to me that 'stalling' during negotiations is an issue more properly to be considered under the good faith bargaining provisions of the Act at s 228. Such a proposition is consistent with what His Honour, Richards SDP said in The Australian Workers' Union v Tyco Water Pty Ltd [2009] FWA 512 at para [20]:

'[20] Generally, therefore, an employer who might seek FWA not to exercise its discretion to extend the period for which protected industrial action is authorised on the grounds that a bargaining representative is not acting in accordance with s.228 of the Act ought to ensure such a submission is accompanied by an application under s.228 of the Act. This will ensure the discretion under s.459 of the Act, as it may or may not be exercised, is premised on findings that have had regard to all elements of a claim under s.228 of the Act (including the stipulated statutory preconditions there-to).'

[19] Obviously, this is not an application for good faith bargaining orders, nor have any such orders been sought. Viewed in this way, with respect, I do not consider Mr Venn's belief to be particularly determinative as to whether an extension of the 30 day protected action period should be granted. In addition, the parties could have sought, by agreement, to have all, or any of the disputed matters, arbitrated under s 240(4) of the Act.

[20] That said, it is clear to me from my involvement in the negotiations as recently as 21 December 2015, that the parties are still negotiating. In my assessment, they are not that far apart. For the Union's part, it sought time to consider new proposals with its members, particularly in respect to site rates for labour hire employees. I note that Mr Venn conceded the Union's position had changed as of the previous day, albeit he was not very hopeful of an agreement. With this in mind, there is no 'stalemate', but in any event:

(a) a 'stalemate' is not a proper basis for refusing to extend the thirty day protected action period; and

(b) there remains an opportunity for consent arbitration under s 240(4) of the Act.

[21] In my view, there is one further relevant consideration. Even if the 30 day protected action period is extended, it means the period will expire on 24 January 2016. Importantly, by virtue of s 459(3)(b) of the Act, no further extensions can be granted. I was informed that the next Council contract is not even due to be put to tender until mid-2016, in itself, a curiously long period for a contract that is not due to commence until January 2018 (although I was told of the reasons why it takes so long). Nevertheless, there is still a relatively wide 'window' of opportunity to finalise the new Agreement. Accordingly, I do not see how a short delay in finalising the Agreement will impact on the tender proposal, should Remondis decide to retender for the contract some time after the middle of 2016.

[22] In summary, pursuant to s 459(3) of the Act, I am satisfied that:

(a) the jurisdictional prerequisites to an extension of the thirty day protected action period have been met; and

(b) the Commission's discretion should be exercised to extend the protected action period, due to expire on 25 December 2015, by a further period of 30 days.

[23] Orders giving effect to my findings will be published contemporaneously with this Decision.

Mr L Maroney with Mr G Rodgers for the Transport Workers' Union of Australia.

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