Fair Work Act 2009

s.234 - Application for an intractable bargaining declaration

Terminals Pty Ltd T/A Quantem Bulk Liquid Storage & Handling

Application for an intractable bargaining declaration

• [1] On 26 September 2024, I ordered [PR779673] that an intractable bargaining declaration under s.235(1) of the Fair Work Act 2009 (the Act) be made in relation to the proposed Quantem Bulk Liquid Storage and Handling (Queensland) Enterprise Agreement 2022 (the Proposed Agreement). The declaration came into operation on 26 September 2024, with a post-declaration negotiating period commencing the same day and ending on 24 October 2024.

• [2] This Decision contains my reasons for the making of the Order.

• [3] On 2 September 2024, Terminal Pty Ltd T/A Quantem Bulk Liquid Storage & Handling (the Applicant) made an application to the Fair Work Commission (the Commission) for an intractable bargaining declaration pursuant to s.234 of the Act. The Respondent to the application is the United Workers' Union (UWU).

• [4] The matter was listed for a directions hearing on 12 September 2024. Directions were subsequently issued requiring the UWU to notify my chambers whether it opposed the application.

• [5] On 20 September 2024, the UWU informed my chambers that it did not oppose the Applicant's application. The parties provided a draft intractable bargaining declaration and requested that the directions be vacated.

• [6] Section 235 of the Act sets out when the Commission may make an intractable bargaining declaration. It states:

"235 When the FWC may make an intractable bargaining declaration

(1) The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if:

(a) an application for the declaration has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2); and

(c) it is after the end of the minimum bargaining period (see subsection (5)).

Matters of which the FWC must be satisfied before making an intractable bargaining declaration

(a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC's processes to deal with the dispute; and

(b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

(c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

(b) the proposed enterprise agreement to which it relates; and

(c) any other matter prescribed by the procedural rules.

(a) comes into operation on the day it is made; and

(b) ceases to be in operation when each employer specified in the determination is covered by an enterprise agreement or a workplace determination.

(5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is:

(a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement - the later of the following:

(i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;

(ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or

(b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6).

(6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:

(a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement - the day that the authorisation first comes into operation; or

(b) otherwise - the notification time for the proposed agreement."

• [7] I now turn to consider the matters in s.235 of the Act.

Has an application for the declaration been made? - s.235(1)(a)

• [8] Section 234(1) of the Act states that a bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the Commission for an intractable bargaining declaration under s.235 of the Act. The Applicant is an employer that will be covered by the Proposed Agreement. In accordance with s.176(1) of the Act, it is therefore a bargaining representative for the purposes of s.234(1) and has standing to make the application which is an application for the purposes of s.235(1)(a). I therefore find that a valid application has been made under s.235(1)(a).

Is it after the end of the minimum bargaining period? - s.235(1)(c)

• [9] The employees to be covered by the Proposed Agreement are currently covered by the GrainCorp Operations Limited Queensland Operations Enterprise Agreement 2019 (the Existing Agreement). The Existing Agreement's nominal expiry date is 21 October 2022. The notification time for the Proposed Agreement was 26 July 2022. More than 9 months has elapsed since the nominal expiry date of the Existing Agreement. The application was therefore made after the end of the minimum bargaining period for the purposes of s.235(1)(c).

Has the FWC dealt with the dispute about the agreement under section 240, and has the applicant participated in the FWC's processes to deal with the dispute? - s.235(2)(a)

• [10] The Applicant filed a dispute under s.240 of the Act on 19 May 2023. That dispute was allocated to me, and I convened conferences with the parties under s.240 of the Act on the following dates:

• 12 June 2023;
• 5 July 2023;
• 13 July 2023;
• 20 July 2023;
• 3 August 2023;
• 11 October 2023;
• 20 October 2023;
• 22 January 2024;
• 22 April 2024; and
• 10 June 2024.

• [11] The Applicant participated in each these conferences. It submitted that it genuinely tried to reach an agreement with employees and the UWU throughout the life of the s.240 process.

• [12] I agree with the Applicant and I am satisfied that the Commission has dealt with the dispute under s.240 of the Act, and the Applicant has participated in the Commission's processes to deal with the dispute for the purposes of s.235(2)(a) of the Act.

Is there no reasonable prospect of agreement being reached if the Commission does not make the declaration? - s.235(2)(b)

• [13] Bargaining for the Proposed Agreement commenced on 26 July 2022. The Commission has assisted the parties in s.240 bargaining meetings on 10 occasions. Outside of the Commission process under s.240 of the Act, the Applicant submitted that there have been a further 21 bargaining meetings between the parties. The Applicant also noted that the Proposed Agreement has been put to vote with employees three times and has failed to receive a majority support vote from employees each time, with the most recent vote occurring late August 2024.

• [14] Following the last bargaining meeting I attended with the parties on 10 June 2024, the Applicant submitted that the parties continued negotiations. On 10 July 2024, its bargaining representative, Mr Jon De Unamuno, wrote to the UWU outlining good faith bargaining concerns and requesting that the UWU outline claims the UWU considered were outstanding to resolve bargaining for the Proposed Agreement. The UWU responded, outlining two issues with respect to annual leave loading and overtime rates of pay that it considered were outstanding. The parties met on 6 August 2024, and the Applicant submitted that following this meeting, the UWU considered that the outstanding issues had been resolved and endorsed the Proposed Agreement. The Applicant then commenced the access period for the Proposed Agreement on 19 August 2024.

• [15] On 20 August 2024, Mr Quan Chuc, Lead Organiser of the UWU, sent an email to Mr De Unamuno, outlining a better off overall test concern the UWU held in relation to part-time employees. The Applicant submitted that after a meeting between the UWU and employees on 21 August 2024, Mr Chuc informed Mr Sean Bland of the Applicant that he had told employees that the UWU endorsed the approval of the Proposed Agreement.

• [16] Having regard to the vote in late August 2024 failing to secure agreement between the parties, the Applicant submitted that given the interactions between the parties in the months prior, along with the number of bargaining meetings and unsuccessful votes, there is no reasonable prospect of reaching agreement with employees on the Proposed Agreement.

• [17] Having observed the negotiations of the parties for approximately the past 14 months, I am satisfied that there is no reasonable prospect of agreement being reached if the Commission does not make an intractable bargaining declaration. I agree with the Applicant that this finding is supported by the time that has elapsed since bargaining commenced, the number of bargaining meetings that have occurred with and without the Commission's assistance, and the three unsuccessful votes in relation to the Proposed Agreement, including as recently as 29 and 30 August 2024.

Is it reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement? - s.235(2)(c)

• [18] Given the protracted bargaining negotiations and the three unsuccessful votes, the Applicant submitted that it is reasonable for the Commission to make an intractable bargaining declaration. The UWU, in not opposing the Applicant's application, appears to share the view that it is reasonable for the declaration to be made.

• [19] I am satisfied that in all the circumstances, it is reasonable for the Commission to make an intractable bargaining declaration. The lengthy and unsuccessful bargaining process, culminating in a third unsuccessful vote on 29 and 30 August 2024 in which all 15 employees who voted for the Proposed Agreement voted against its approval, clearly demonstrates that the parties are at an impasse.

• [20] As the preconditions in s.235(1) of the Act have been met and having satisfied myself of the matters in ss.235(2), I have exercised my discretion to make an intractable bargaining declaration in relation to the Proposed Agreement. In accordance with s.235(4) of the Act, the declaration came into effect on 26 September 2024, and will cease to be in operation when the Applicant is covered by an enterprise agreement or a workplace determination.

• [21] In accordance with s.235A(1) of the Act, the post-declaration negotiating period started on 26 September 2024 and will end on 24 October 2024.

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