"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Brockman Services Pty Ltd [2024] FWC 2444

1 Fair Work Act 2009 s.437 - Application for a protected action ballot order "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Brockman Services Pty Ltd (B2024/1140) COMMISSIONER CONNOLLY MELBOURNE, 9 SEPTEMBER 2024 Proposed protected action ballot of employees of Brockman Services Pty Ltd [1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Brockman Services Pty Ltd (Brockman or Employer). [2] The Application was lodged with the Commission on 3 September 2024. [3] The following day, the matter was allocated to my chambers for determination. At the same time, I was also advised the Respondent objected to the Application. [4] The grounds of objection articulated by the Respondent are that the Applicant has not been genuinely trying to reach agreement. They make this objection because the company has only just formally agreed to commence bargaining on 20 August 2024 and that the Applicant has only attended one bargaining meeting with the Respondent on 4 September 2024, the day after this application was made. [5] The AMWU presses their application. Their position is that the AMWU has been and is genuinely trying to reach agreement with the Respondent. They argue that s.443 of the Act requires the Commission to make a protected action ballot order if an application has been made under s.437. Further, that the Commission can be satisfied on the evidence before it that the Applicant has been, and is, genuinely trying to reach agreement. [6] There is no dispute the application has been made under s.437 of the Act. On receipt of notification of the application, the Respondent identified incorrect references to Brockman Engineering Pty Ltd in the original F34 Filed by the AWWU. These anomalies were addressed in a revised F34 filed by the Applicant on 4 September 2024, included in the materials provided to my Chambers. 2024 FWC 2444 DECISION -- 1 of 6 -- 2024 FWC 2444 2 [7] Considering the circumstances, I requested the parties to advise my chambers by 2:00pm on Thursday, 5 September 2024, if they sought to be heard further in relation to this matter. If so, I indicated the matter would be listed for hearing at 3.45pm on the same day. If not, the matter would be determined on the material before the Commission. [8] The AMWU sought to be heard further in relation to the Application and relied on the material filed before the Commission. The Respondent did not respond but attended the hearing. Additional Submissions [9] A hearing was convened at 3:45pm on Thursday, 5 September 2024 via video. Mr Stephen Fodrocy and Mr Tony Hynds appeared for the AMWU. Mr Matthew Redmond and Ms Lisa Fletcher appeared for the Respondent. The hearing adjourned at approximately 4.45pm, at which time I requested both parties to provide additional written submissions and other relevant material in support of their position by 4:00pm on Friday, 6 September 2024. [10] The Respondent filed a written submissions and appendices, including an email exchange between Ms Fletcher and Mr Hynds, along with a copy of the NERR issued on 20 August 2024. [11] The Applicant filed written submissions along with witness statements and supporting materials from Mr Hynds (AMWU Organiser), Mr Paul Edebohls (AMWU Delegate) and Mr Fodrocy (AMWU Industrial Officer). [12] The AMWU’s position at the hearing was that the AWWU has been, and is, genuinely trying to reach agreement with the Respondent. [13] In support of this position, Mr Hynds, who indicated he was the AMWU Organiser responsible for AMWU members of the Respondent, submitted he had presented a log of claims and was genuinely trying to reach an agreement with the Respondent on behalf of his members. Mr Hynds’ position is that this process commenced from 3 June 2024, when he attended an initial bargaining meeting and commenced bargaining. [14] His evidence is that at this meeting he was told by the Respondent that there would be two agreements: one for Brockman Engineering Pty Ltd, and another for Brockman Services Pty Ltd, the Respondent. That both agreements would be identical and that they would be negotiated at the same time. Since then, he has attended at least 7 further bargaining meetings and has been, and is, genuinely trying to reach agreement with the Respondent. The last meeting was held on 4 September 2024. [15] Mr Edebohls’ witness statement also indicated he was present at the meeting on 3 June 2024 and told by the Respondent’s representatives that there would be two agreements, one for Brockman Engineering and one for Brockman Services. Further, that since this time he has attended multiple bargaining meetings with the Respondent, representing AMWU members and has been, and is, genuinely trying to reach agreement. -- 2 of 6 -- 2024 FWC 2444 3 [16] Mr Fodrocy provided written submissions and a witness statement in further support of AMWU’s position. In summary, the their position is that the Commission can be satisfied the AMWU has been, and is, genuinely trying to reach agreement with the Respondent, that there is a notification time in relation to the proposed agreement and that all requirements in s.443(1) of the Act have been met. [17] In this regard, the AWMU relies on its amended form F34 and the additional material filed before the Commission. It is their position that it has been engaged in extensive negotiations with the Respondent for terms and conditions that would apply to the Respondent and Brockman Engineering since 3 June 2024. They submit that the evidence supports this submission, in particular, the following email exchange between Mr Hynds and Ms Fletcher, that was attached as Appendix 1 and Appendix 2 of the Respondent’s additional submissions: Monday, 26 August 2024 – Email from Mr Tony Hynds to Ms Lisa Fletcher “Hi Lisa, …At the start of the eba negotiations your self and Matt explain that there would be two enterprise agreements one Brockman Engineering Pty Ltd Workshop and Site Agreement and the other Brockman Services Pty Ltd Agreement. The explanation was that when you do work interstate in regional areas it would minimise tax. But it was also made clear that both agreements would be exactly the same as in wording and conditions, can you please confirm that this is still the same position? …” Tuesday, 27 August 2024 – Email in reply by Ms Lisa Fletcher to Mr Tony Hynds “Hi Tony, Apologies, still catching up on emails after some AL. The Brockman Engineering EBA will be applied to work undertaken in regional VIC. The Brockman Services EBA will apply to all other locations. Correct, we plan on both agreements mirroring each other – an employee can transfer from one Company / EBA to another without impact. All leave and service transfers with them and back if need be. …” [18] In the alternative, the AWMU submits the Commission can be satisfied on the evidence before it that the Applicant, has been, and is genuinely trying to reach agreement with the Respondent by virtue of it being a related body corporate of Brockman Engineering as provided by sections 46 and 50 of the Corporations Act 2001. In support of this position, the AMWU has presented a company search affirming both the Respondent and Brockman Engineering are subsidiaries of the EVZ Limited and, therefore, related bodies corporate able to be covered by a single employer enterprise agreement under s. 172 of the Fair Work Act 2009. -- 3 of 6 -- 2024 FWC 2444 4 [19] The Respondent’s position is that it was not until 20 August 2024 that it formally agreed to initiate bargaining for the proposed Brockman Services Agreement when it issued a NERR to this effect. Further, that since this time there has only been one formal bargaining meeting of the parties to negotiate this agreement, being 4 September 2024, the day after this application was made. [20] On this basis, the Respondent maintains they are following the formal required processes for bargaining for an agreement, and it cannot be said, at this stage, that the Applicant is and, has been, genuinely trying to reach an agreement. [21] The Respondent’s additional material filed includes a short chronology confirming bargaining commenced on 3 June 2024 for the Brockman Engineering Agreement, that a NERR was issued for the Brockman Services Agreement on 20 August 2024 and that a meeting to progress negotiations for this agreement was convened on 4 September 2024. [22] The Respondent accepts that it confirmed there would be two agreement that would be the same “early on” in the process as Ms Fletchers’ email above to Mr Hynds confirms. However, it is their position that: “As bargaining for the Brockman Services EBA hadn’t formally commenced, and in accordance with procedural requirements for making an agreement, it is the Company’s position that genuine attempts at reaching agreement for Brockman Services had yet been achieved within such close proximity to the issuance of the NERR.”i Consideration [23] As the Applicant has identified, s.443 of the Act sets out when the Commission must make a protected ballot order 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 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.” [24] The Applicant’s position is these conditions have been met and the Commission must make an order. The Respondent disputes this can be the case when, technically speaking, it only agreed to bargain from 20 August 2024, when it issued a NERR to this effect. [25] The Applicant rejects this position. It is their position that from 3 June 2024, Mr Hynds has been genuinely seeking to reach an agreement with the Respondent. The statements of Mr Edebohls and Mr Fodrocy support this conclusion. -- 4 of 6 -- 2024 FWC 2444 5 [26] The Respondent’s own evidence is that from “early on” in the process of negotiating with the AMWU it indicated there would be two agreements, and that they would be identical and cover employees represented by the Applicant for which they were seeking to bargain. [27] It is not disputed that the parties have had numerous bargaining meetings where the log of claims sought by AMWU members were discussed. [28] The Respondent’s evidence confirmed that Mr Hynds’ understanding that there would be two agreements “mirroring each other” was not misplaced. [29] I have considered these submissions in line with the relevant authorities of the Commission. [30] In JJ Richards & Sons Pty Ltd v Transport Workers Union of Australia considering genuine agreement, the Full Bench observed at [58] [62] and [63]:ii “[58] The expression “genuinely trying’ in s 443(1)(b) is, clearly enough, concerned with the genuineness of the “trying”, the efforts, to reach the stated goal, namely an enterprise agreement that meets the requirements of the FW Act. It is directed at the authenticity of the applicant’s efforts to reach that goal. The genuineness or authenticity of an applicant’s efforts to reach that goal will turn on its motivation – the intention, object or purpose. … [62] In the ordinary course of events where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act, what may be described as an evidentiary onus shifts to the party or parties opposing the application to demonstrate why that evidence ought not be accepted sufficient to shift the evidentiary onus back to the applicant. [63] In circumstances where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act a finding that the applicant was not “genuinely trying to reach an [enterprise] agreement” within the meaning of s.443(1)(b) will necessarily involve accepting evidence establishing that the applicant had some other, extraneous purpose in seeking the ballot. Indeed, when there is evidence from an applicant for a protected action ballot order that they have been and are “genuinely trying to reach an [enterprise] agreement” under the FW Act, it is difficult to conceive of circumstances where it could properly be found they were not...” [31] In this case, the TWU had sought to bargain with JJ Richards for a new agreement and JJ Richards refused to bargain. The TWU applied for and was granted a protected action ballot order. In JJ Richards & Sons v Fair Work Australia,iii the Full Court of the Federal Court affirmed that s.443 does not require bargaining to have commenced as a precondition to the making of a protected action ballot order. All that is required is that the party seeking the protected action ballot order be “genuinely trying” to reach an agreement. -- 5 of 6 -- 2024 FWC 2444 6 [32] On this basis, and on the material before me, I am satisfied that the AMWU has been, and is, genuinely trying to reach agreement with the Respondent from 3 June 2024 and that this continues to be the case. There is a notification time in relation to the proposed agreement and all the requirements in s.443(1) of the Act have been met. This being the case, I do not consider it necessary to contemplate the Applicant’s alternative submissions. [33] The Application seeks the protected action ballot commence on the 6th day after an order by the Commission. [34] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot. [35] 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 25 September 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act. [36] An Order has been separately issued in [PR779001]. [37] This matter will now be programmed by my Chambers to conduct the s.448A compulsory conciliation conference. An order will be issued requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR779075> i Respondent’s objection submissions. ii [2010] FWAFB 9963. iii [2012] FCAFC 53. -- 6 of 6 --