"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Prysmian Australia Pty Ltd [2023] FWC 1722

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 Prysmian Australia Pty Ltd (B2023/711) COMMISSIONER CRAWFORD SYDNEY, 14 JULY 2023 Proposed protected action ballot of employees of Prysmian Australia 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) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Prysmian Australia Pty Ltd (Prysmian Australia or Respondent). The application was filed on 13 July 2023. [2] On 14 July 2023, the Commission was advised that the Respondent opposes the Application on the basis that the AMWU has not been genuinely trying to reach agreement. As a result, I listed the application for hearing at 2pm on 14 July 2022 along with similar applications concerning the same employer filed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the United Workers’ Union (UWU). [3] At the outset of the hearing, Prysmian Australia clarified that its only ground of opposition to the application was that s.443(1)(b) is not satisfied because the AMWU has not been genuinely trying to reach agreement. I also advised the three applicant unions that I had concerns with the proposed closing date of the ballot, which in each case was seven calendar days after an order is issued. I indicated I would return to this issue after I heard the parties on the genuinely trying to reach agreement issue. At the conclusion of the hearing, I informed the parties I was satisfied the AMWU has been, and is, genuinely trying to reach agreement with Prysmian Australia and that I intended to make the requested order. I then indicated my provisional view that the voting period should close 10 working days after the date of the order. The AMWU did not oppose my provisional view. The following are my reasons for these decisions. [4] The AMWU relied on a declaration by Helen Sourlas to establish that it has been, and is, genuinely trying to reach agreement. Ms Sourlas was not required for cross-examination. Ms Sourlas’ uncontested evidence included that the AMWU submitted a log of claims to Prysmian Australia and that at least three bargaining meetings have been held to date. Ms Sourlas also [2023] FWC 1722 REASONS FOR DECISION -- 1 of 4 -- [2023] FWC 1722 2 gave evidence that the AMWU has been providing arguments in support of its claims and providing reasoned responses to Prysmian Australia’s claims. [5] Prysmian Australia filed a submission outlining its opposition to the application on 14 July 2023 and a document summarising the status of the various claims. I have considered all of Prysmian Australia’s submissions. The primary arguments are that the application is premature, bargaining is progressing well and the application is unnecessary. The submissions focused heavily on arguing the AMWU is not meeting the good faith bargaining requirements and appeared to conflate that issue with the genuinely trying to reach agreement criterion appearing in s.443(1)(b) of the Act. Prysmian Australia did not seek to make any further oral submissions at the hearing. [6] In Esso Australia Pty Ltd v AMWU, CEPU and AWU [2015] FWCFB 210 (Esso), the Full Bench stated the following regarding the interaction between the good faith bargaining requirements and the concept of genuinely trying to reach agreement: “In any event, while there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.”1 [7] The Full Bench in Esso went on to provide the following summary regarding what is required for an assessment of whether an applicant is genuinely trying to reach agreement (endnotes omitted): “[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were ‘put to one side’; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified. In the course of its decision the Full Bench expressed the following views about s.443(1)(b),: ‘[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied. [32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that -- 2 of 4 -- [2023] FWC 1722 3 it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.’ [35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).” [8] I am satisfied based on the uncontested evidence of Ms Sourlas and the application of the authorities identified above that the AMWU has been, and is, genuinely trying to reach agreement with Prysmian Australia. It is clear the AMWU has articulated its claims and is attending bargaining meetings to discuss these claims and those made by Prysmian Australia. The parties appear significantly apart in terms of the proposed wage increase for a new agreement and that Prysmian Australia has not currently agreed to other claims made by the AMWU. I am satisfied the AMWU has made this application to further its genuine attempts to reach agreement with Prysmian Australia. [9] I am satisfied that there is a notification time in relation to the proposed agreement and that all of the other requirements in s.443(1) of the Act have been met. [10] The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s.468A of the Act2 and consequently is authorised to conduct the ballot. [11] For the purposes of s.443(3)(c) and s.448A(2) of the Act, I have determined the date by which voting closes for the ballot will be 10 working days from the date of this Order. This date was not opposed by the AMWU. I consider this date is appropriate taking account of the need for a conference to be conducted in accordance with s.448A. I am satisfied the date is consistent with the requirement in s.443(3A), although I note the unions effectively reserved their position on this issue and ultimately made a pragmatic decision not to oppose the date. [12] An order has been separately issued in PR764245. [13] This matter will be assigned to a Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations. -- 3 of 4 -- [2023] FWC 1722 4 COMMISSIONER Appearances: S. Ananth for the UWU A. Aghazarian for the CEPU H. Sourlas for the AMWU T. Rydholm and R. Elazzi for Prysmian Australia Hearing details: 2023. Sydney (by video via Microsoft Teams) 14 July. Printed by authority of the Commonwealth Government Printer <PR764244> 1 Esso at [18]. 2 Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400 -- 4 of 4 --