1 Fair Work Act 2009 s 437—Protected action “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Ofinac Acoustical Engineers Pty Ltd (B2024/19) COMMISSIONER PERICA MELBOURNE, 16 JANUARY 2024 Proposed protected action ballot of employees of Ofinac Acoustical Engineers Pty Ltd [1] On 10 January 2024, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) made an application under s 437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Ofinac Acoustical Engineers Pty Ltd (Employer). [2] At 10:20 AM on 11 January 2024, Mr. Jeff Moon, the General Manager of the Employer, advised the Commission by e-mail that it opposed the application (“the Moon e- mail”) on the following bases: “• We have responded to all requests in a timely manner. • We have provided our employees on Wednesday 10th Jan on their return from leave with an updated draft EBA for them to review and vote on in the next 7 days. • We note out of the 5 employees who would vote 2 are currently on leave. • We have already implemented all requests including pay increases and provided all other aspects contained in the draft EBA provided without having it signed off by the employees. • We are hopeful to have a signed EBA in place in the next week when all employees have returned to work.” [3] The Moon e-mail noted that he “is currently on personal leave” and that “I am hopeful to return to full duties next week and hope the above [is] adequate in the current circumstances.” [2024] FWC 74 DECISION [2024] FWC 74 2 Procedural History [4] At 11:20 AM on 11 January 2024, the matter was allocated to my Chambers. It was then listed for hearing at 3:30 PM on the afternoon of 11 January 2024 by Microsoft Teams. [5] Prior to the hearing, the AMWU provided submissions in response to the objections raised by the Employer. [6] At 3:30 PM, my Chambers attempted to contact Mr. Moon on his mobile. My Chambers then rang his landline and was directed to Mr. Hollick of the Employer. My Chambers spoke to Mr. Hollick who indicated that Mr. Moon was the appropriate person to deal with this application. [7] Mr. Fodrocy, an industrial officer of the AMWU, appeared at the hearing. There was no appearance for the Employer. In the absence of a representative of the Employer the hearing could not proceed. I then issued a Statement and Directions that directed the Employer to provide any further submissions on or before 3:00 PM on 12 January 2024 and indicated that, unless I heard otherwise, the matter would be decided on the papers. [8] On the morning of 12 January 2024, my Chambers was contacted by Mr. Moon of the Employer in this matter. I called an urgent telephone mention in which Mr. Fodrocy of the AMWU and Mr. Moon participated. Mr. Moon explained an urgent family emergency which was likely to prevent him from complying with the Directions I issued on 11 January 2024. [9] Section 441 of the Act requires me to determine the application within two working days … “as far as practicable’. Given the exceptional circumstances in which Mr. Moon found himself, it was not practicable for the Commission to expect him to provide submissions in support of the Employer’s objections on 12 January 2024. I therefore varied the directions to enable the Employer to provide further written submissions by 15 January 2024, and for the AMWU to respond to those submissions by 12:00PM on 16 January 2024. [10] On the basis of the matters raised in the papers filed by the parties, I have decided to issue the PABO sought by the AMWU for the following reasons. BACKGROUND [11] The nominal expiry date of the predecessor Ofinac Engineers Pty. Ltd (Factory) Enterprise Agreement 2018 occurred on 21 February 2023. [12] The application states the Employer issued a Notice of Employee Representational Rights on 21 December 2022 and agreed to bargain on 1 March 2023. The AMWU served its log of claims on the Employer in March 2023. Bargaining meetings have been held 1 March, 16 March, 4 April, 15 May and 9 August 2023. According to the application, “the AMWU negotiated with the Respondent in pursuit of the demands in its log of claims.” [13] The Employer in its submissions noted Mr. Hunter, the AMWU organiser, also attended meetings at the Employer’s premises on 21 November 2022, 31 January 2023, 26 September 2023 and 17 October 2023. [2024] FWC 74 3 [14] According to the AMWU, “despite [its] best endeavours to reach agreement, the parties remain apart on a number of key issues, including pay increase, PPE Wage table and allowance table.” It also asserts it has been and is “genuinely trying to reach agreement with the Employer”. Statutory framework [15] Section 437 of the Act enables a bargaining representative to apply for a PABO. Subject to the restrictions in s 437(2A) and s 438(1) (which are not presently relevant), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s 443. Section 443 relevantly provides: “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 FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1). (3) A protected action ballot order must specify the following: (a) the name of each applicant for the order; (b) the group or groups of employees who are to be balloted; (c) the date by which voting in the protected action ballot closes; (d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. (3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable. …” [16] Whether an applicant “has been, and is, genuinely trying to reach an agreement” within the meaning of s 443(1)(b) is a question of fact to be decided by reference to all of the circumstances of the bargaining in question.1 It will frequently involve consideration of the extent of progress in negotiations and the steps taken in order to try to reach agreement.2 There are two temporal components to s 443(1)(b); the applicant must have been genuinely trying to reach agreement, and must be genuinely trying to reach agreement. [17] While there is a relationship between s 443(1)(b) and the need to bargain in good faith under s.228 of the Act, a Full Bench of the Commission in Esso Australia Pty Ltd v AMWU3 cautioned against conflating the two requirements. It stated that “a party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach agreement.”4 Ultimately, it is the test in s 443(1) that must be applied. [2024] FWC 74 4 Objections of the Respondent [18] The Employer objects to a PABO being issued in this matter on the basis the AMWU is not and has not genuinely tried to reach agreement with the employer under s 443(1)(b). [19] I set out the grounds of objection specified in the Moon e-mail in paragraph [2] of this decision. Those grounds make no reference to the conduct of the AMWU. [20] In its 15 January 2024 written submissions, the Employer made submissions of fact which went to the conduct of Mr. Hunter, an AMWU organiser, during bargaining including that he: • Did not take notes and relied on his memory of the positions of the parties between meetings. • Cancelled meetings on late notice. • Changed his position on the percentage of wage increase and efficiency targets on a number of occasions. Mr Hunter had accepted positions put by the employer and then subsequently rejected them. The latest example of this was an e-mail of 13 December 2023 indicating the AMWU would not accept an efficiency target of 4% for 2024 and 5% in 2024. This was after a meeting “with all staff with Mr. Hunter present where all parties agreed on the efficiency targets of 5%”. • In the 13th of December 2023 email, Mr. Hunter also “stated that the companies Health & Safety policy be included into the EBA”, along with accusations that “the Company had refused to supply appropriate tools and PPE which was not substantiated or factual”. None of those matter were ever discussed in any of the meetings between the parties. AMWU reply to the Moon e-mail and the 15 January 2024 Employer submissions [21] On 11 January 2024, the AMWU provided submissions in response to the matters put in the Moon e-mail. In summary, it was to the effect that “the Respondent’s objection (as expressed in that e-mail) do not go to the conduct or omissions” of the AMWU in bargaining and that the conduct of a PABO applicant is the relevant consideration in an assessment under s 443(1)(b). [22] On 16 January 2024, the AMWU filed submissions in response to the further submissions of the Employer filed on 15 January 2024 which included. “• …the Respondent provides examples of the discussions between Mr. Hunter on behalf of the Applicant and Mr. Moon on behalf of the Respondent during bargaining. • None of the matters go to whether the Commission ought to be satisfied that the Applicant has been and is genuinely trying to reach an agreement with the Respondent (per s 443(1)(b) of the Act). [2024] FWC 74 5 • It is open to the Respondent to attempt to demonstrate that the Commission should not be so satisfied. In this matter, the Respondent has not done so. • The declaration accompanying the PABO Application outlines the steps taken by Mr. Hunter in trying to reach an agreement on behalf of its members employed by the Respondent. This is sufficient to form the basis of the Commission’s satisfaction that s 443(1)(b) of the Act has been met. • As is confirmed by Mr. Moon, Mr. Hunter attended several negotiation meetings with the Respondent in aid of reaching an agreement. Further, at those meetings and in correspondence, Mr. Hunter put its members’ position on wage increases to the Respondent and provided reasons for rejecting the Respondent’s offer. • Mr. Hunter’s conduct clearly meets the requirement to genuinely try to reach an agreement. In sum, Mr. Hunter: participated in negotiations, put proposals to the Respondent, responded to proposals put by the Respondent, and provided reasons for the Applicant’s position. • The Respondent’s Objection Submissions appear to be confined to unwarranted criticisms of the manner in which Mr. Hunter has tried to reach an agreement with the Respondent. Any such criticisms (unwarranted or otherwise) are irrelevant to the mandatory power under s 443(1)(b) of the Act.” Consideration [23] On the material before me, it is clear the AMWU has participated in approximately 10 meetings with the Employer. It is not disputed the AMWU has put the matters it wishes to negotiate in a log of claims and has worked through those matters at the meetings. [24] The basis of the objections made in the Moon e-mail seem to address an argument that the granting of this PABO application will be inconvenient and less-than-optimal timing for the bargaining strategy of the Employer. These are not matters I can take into account in an assessment of genuinely trying to reach an agreement in s 443(1)(b). [25] The matters referred to in the 15 January 2024 submissions of the Employer relate to the conduct of Mr Hunter. The Employer asserts that Mr. Hunter had cancelled meetings at short notice, had an “unaccountable change of mind”5 on the issue of wage rises and efficiency improvements, had raised the inclusion of the Health and Safety Policy late in negotiations and accused the Employer of a failure to provide appropriate PPE and tools when those issues were never raised in discussions. [26] Without in any way suggesting I have reached a concluded view, it could be some of these complaints could amount to a failure to bargain in good faith under s 228, but that is not the matter on which I am required to be satisfied under s 443(1)(b). I adopt the note of caution I have quoted in Esso that the concept of good faith bargaining and that of genuinely trying to reach agreement should not be conflated. [2024] FWC 74 6 [27] The complaints made by the Employer occur in a context where the AMWU has, since at least March 2023, been meeting with the Employer and pursuing matters raised in its log. The complaints made on the conduct of Mr. Hunter do not displace the broader circumstances in which the AMWU has engaged with the Employer in this bargaining process. In those circumstances I am compelled to find that the AMWU has been and is genuinely trying to reach an agreement with the Employer. Conclusion [28] On the material before me, I am satisfied the AMWU has been and is genuinely trying to reach agreement with the Employer. I am also satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s 443(1) of the Act have been met. [29] For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 15 February 2024. This also establishes the ballot period for the purpose of s 448A(2) of the Act. [30] An Order has been separately issued in PR770136. [31] This matter will shortly be listed for a s 448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR770135> 1 Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2015) 257 IR 5 at [69]; [2015] FWCFB 210 at [57]. 2 Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 at [32]; (2009) 189 IR 407 at [32]; National Union of Workers (NUW), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Sakata Rice Snacks Australia Pty Ltd [2016] FWC 6262 at [25]. [2024] FWC 74 7 3 [2015] FWCFB 210. 4 Ibid at [18]. 5 Liquor, Hospitality and Miscellaneous Union v Foster’s Australia Ltd [2009] FWA 750 (Kaufman SDP, 28 October 2009) [13].