Aegis Aged Care Staff Pty Ltd
[2010] FWA 3715
•12 MAY 2010
[2010] FWA 3715 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Aegis Aged Care Staff Pty Ltd
(AG2010/8417)
Health and welfare services | |
COMMISSIONER WILLIAMS | PERTH, 12 MAY 2010 |
Aegis - LHMU & HSU Employees Agreement 2010.
[1] This matter is an application by Aegis Aged Care Staff Pty Ltd under s. 185 of the Fair Work Act 2009 (the Act) for approval of the Aegis - LHMU & HSU Employees' Agreement 2010 (the Agreement).
Background
[2] The application for approval is supported by two bargaining representatives, the Liquor, Hospitality and Miscellaneous Union-Western Australian Branch (the LHMU) and the Health Services Union-Western Australia (the HSU). The Australian Nursing Federation (the ANF) has raised a number of concerns and argues that they are such that the agreement should not be approved. These concerns were raised in a prior s. 229 application lodged by the ANF, B2010/2841, which was discontinued following a conference.
[3] This matter was listed for a hearing at which time the ANF, LHMU and the employer made submissions concerning the requirements of s. 186 and s.187 of the Act. The HSU did not appear however the LHMU submitted that the HSU supported their submissions.
[4] The agreement applies to over 1800 employees employed in the employers various aged care facilities providing, clinical, therapy, hospitality, clerical and maintenance services. The LHMU say it represents approximately 600 employees and the ANF says it represents at least two employees.
[5] The matters of concern raised by the ANF are as follows:
Representation
Section 186 (6) (b) requires that a term about settling disputes be included in the agreement which allows for the representation of employees. Clause 53 Dispute Settlement Procedure of the Agreement does not meet this requirement. The clause says employees may be represented by an official of the “Union”. The Agreement defines Union to be the LHMU and the HSU only. This excludes the ANF from being a representative and does not allow non union employees to be represented by someone of their choosing.
In addition s. 186 (4) requires that an Agreement not contain unlawful terms. Section 194 (b) provides that an unlawful term includes a term that is an objectionable term. An objectionable term is defined as a term that would contravene Part 3-1 (which deals with General Protections). Section 336 (b) (ii) outlines that the objects of that Part are to protect freedom of association by ensuring that persons are free to be represented, or not represented, by industrial organisations. The Agreement does not meet this requirement as employees would not have the ability to be represented by the ANF.
Good faith bargaining
Section 187 (2) requires that approval of an agreement must not be inconsistent with or undermine good faith bargaining. The Agreement does not meet this requirement as the ANF was excluded from the bargaining process of the Agreement.
Section 228 (b) provides that a bargaining representative must disclose relevant information (other than confidential or commercially sensitive information) in a timely manner. This was not met because the ANF was not provided with information about the ballot of employees to make the Agreement.
Section 228 (e) provides that a bargaining representative refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining. This was not met as the employers' conduct was unfair in not replying to correspondence from the ANF.
Section 228 (f) provides that a bargaining representative must recognise and bargain with other bargaining representatives for an agreement. This provision has not been adhered to.
Procedural deficiencies
Section 186 requires an application to be made in accordance with s. 185 (2) which provides that the application must be accompanied by a signed copy of the Agreement; and any declarations that are required by the procedural rules to accompany the application. Form 16 outlines the service requirements, i.e. that a copy of the application must be served on each employer covered by the Agreement, each employee organisation that was a bargaining representative as soon as practicable after lodgement.
The ANF is a bargaining representative by virtue of Section 176 (1) (b) and the employer knew the ANF was a bargaining representative but did not seek a declaration from the ANF when the application was lodged. Therefore there was a breach of the procedural requirements.
The actions of the employer are suggestive of a failure to recognise the role of the ANF in the bargaining process which seriously undermines the principles of good faith bargaining.
The employers' failure to comply with the rules is not an insubstantial matter. Section 585 provides that applications must be in accordance with the procedural rules. Further, Section 587 provides that Fair Work Australia may dismiss an application if the application is not made in accordance with the Fair Work Act 2009 (Cth).
Consideration
[6] Submissions were put by the ANF in support of their concerns above and by the LHMU and the employer arguing against the tribunal accepting that the matters raised by the ANF warranted the approval application not being granted.
[7] The LHMU and the employer also proposed that the tribunal could accept an undertaking to resolve any concerns the tribunal might have regarding the requirements of s.186(6) and the employees rights to representation under Clause 53 Dispute Settlement Procedure of the Agreement.
[8] In terms of the issue of representation, s. 186(6) is as follows:
Requirement for a term about settling disputes
(6) FWA must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.
Note 1: FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).
Note 2: However, this does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).
[9] The effect of Clause 53 Dispute Settlement Procedure of the Agreement and the definition of “Union” in clause 8 Definitions is, as the ANF complains, that employees can only be represented by an official of the LHMU or the HSU.
[10] I find then that Clause 53 Dispute Settlement Procedure of the Agreement does not comply with the terms of s. 186(6). Further I also accept as the ANF have submitted that limiting employee representation in this way arguably permits adverse against to be taken against employees contrary to the General Protections and so the clause is an unlawful term (s.194) which means the Agreement falls foul of s. 186(4).
[11] Given my concern that the Agreement does not satisfy s. 186(4) and (6) I am obliged 1 to consider the undertaking that the employer indicated at the hearing it would be willing to provide. That undertaking would replace Clause 53 Dispute Settlement Procedure with a newly worded clause that with respect to representation simply says
“An employee who is a party to the dispute may appoint a representative for the purpose of the procedures in this clause.”
[12] The LHMU say they would support the tribunal accepting such an undertaking. The ANF say an undertaking provided by the employer may be an appropriate mechanism to deal with the concerns about s.186(4) and s.186(6) 2. However the ANF have other concerns about the title of the Agreement and would prefer an express reference to all Union including the ANF in the representation provision.
[13] I am satisfied an undertaking in the form offered at the hearing meets the s.186 concerns above and accepting it will not cause financial detriment to any employee covered by the Agreement and is not a substantial change. The concerns the ANF hold about the Agreements title are not one that affect my considerations under s.186 and s.187 of the Act.
[14] With regard to the Good Faith Bargaining concerns of the ANF, the ANF argues that for a number of reasons the actions of the employer are such that they have not bargained in good faith with the ANF and as a consequence the Agreement should not now be approved.
[15] The ANF calls upon s. 187 (2) in support of its argument. Section 187(2) is as follows:
Requirement that approval not be inconsistent with good faith bargaining etc.
(2) FWA must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.
[16] The closing words of this section limit concerns regarding good faith bargaining to applications where FWA is considering approving a proposed enterprise Agreement, or an enterprise Agreement, in relation to which a scope order is in operation.
[17] The explanatory memorandum regarding s. 187 reinforces the conclusion that s. 187(2) does not have general application to all applications for approval of Agreements.
Clause 187 – When FWA must approve an enterprise agreement – additional requirements
787. This clause sets out additional requirements that must be met before FWA approves an enterprise agreement (subclause 187(1)).
788. Subclause 187(2) provides for an additional approval requirement where a scope order is in operation in relation to a proposed enterprise agreement, or enterprise agreement. This subclause is intended to deal with the situation where a bargaining representative has made an application for FWA approval of an enterprise agreement that is not expressed to cover all the employees and employers specified in a scope order issued by FWA in relation to that agreement. FWA may approve an enterprise agreement in that situation provided that it is satisfied that the approval of the agreement would not be inconsistent with or undermine good faith bargaining by one or more of the bargaining representatives.
789. If (despite a scope order) the bargaining representatives have subsequently all agreed to make an agreement of a different scope, this may not undermine good faith bargaining. However, if the employer has obtained employee approval for an agreement despite a scope order against the wishes of a group of employees who should have been covered (or excluded) as a result of the scope order, then this clause is likely to be triggered.
[18] The ANF have referred the tribunal to the comments of Commissioner Whelan in Alphington Aged Care (AG2009/11742) Sisters of St Joseph Health Care Services (Vic) t/a Mary Mackillop Aged Care (AG2009/11382) [2009] FWA 301 at paras [54] – [57] set out below:
Conclusions
[54] For the above reasons I am satisfied that these agreements do not meet the requirements for approval under the Act and therefore the applications must be dismissed.
[55] The employers in this case appear to have been under the misapprehension that they could be both bargaining with the union, through their bargaining representative and seeking to make an agreement as they described it ‘directly with their employees’ on the other. This probably derives from the distinction between a ‘union collective agreement’ and an ‘employee collective agreement’ which existed under the Workplace Relations Act. Those distinctions no longer apply. Where an employer seeks to make an agreement with its employees and some of those employees are members of a union, unless the employees appoint another bargaining representative, the union will be recognised by the Act as their bargaining representative.
[56] Any single enterprise agreement under the Act is an agreement between an employer and its employees. The union however, has status as a bargaining representative, by virtue of its right to represent those employees who are its members. The bargaining in good faith requirements include recognising and bargaining with the other bargaining representatives for the agreement. 14
[57] In my view, where the employer is aware that there are employees who are union members and the union is therefore their bargaining representative, it would be a breach of good faith bargaining to put an agreement to a vote without notifying the union of its intention to do so. Particularly, as occurred in this case, where bargaining is underway with the union, to not notify the union that bargaining is at an end – which a decision to put an agreement to the vote clearly implies – undermines the process of good faith collective bargaining which the objects of the Act support.
[19] Commissioner Whelan’s comments in paragraphs [55] – [57] regarding bargaining are general observations that do not directly address the particular point in this matter concerning s. 187(2) nor where they the reasons the agreements in those matters were not approved.
[20] More relevant to this application are the conclusions of Commissioner Cargill in Class Electrical Services Pty Ltd (AG2009/12658) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (B2009/10626) at para [128] as follows:
[128] Section 187 sets out additional requirements which must be met before an agreement is approved. The CEPU has submitted that subsection (2) is relevant in this matter. That subsection requires FWA satisfaction that approving the agreement would not be inconsistent with or undermine good faith bargaining. However it only applies to an agreement, or proposed agreement, in relation to which there is a scope order in operation. There is no such order in relation to the Agreement so this subsection is not relevant to my determination. Likewise none of the remaining requirements of section 187 are relevant in this case.
[21] In this case the employers F 17 declaration states there is no scope order in operation in relation to this Agreement. That being the case the provisions of s. 187(2) are not a relevant consideration in this application. Consequently the complaints the ANF have made concerning the bargaining process are not relevant to the determination of this application for approval of the Agreement.
[22] With regard to the procedural defects the ANF have identified I do accept that the employer has not fully complied with the prescribed requirements for a s. 185 application.
[23] I agree with the submission of the LHMU that there has not been any material disadvantage to the ANF from the deficiencies complained of. The ANF had been made aware of the application and has had a full opportunity to express its views on the application to the tribunal. Therefore I am satisfied that I should, and I do, exercise the discretion available to me under s. 596 and to the extent necessary to regularize this application waive any irregularity in the making of this application.
Conclusion
[24] If the employer provides a signed undertaking in the form submitted at the hearing and the HSU confirm in writing that they support the tribunal accepting such an undertaking I will approve this Agreement.
[25] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 3 will be taken to be a term of the Agreement.
[26] Subject to receipt of the employers undertaking and the HSU acceptance of this I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
[27] The employer and HSU are directed to provide their response to the tribunal within 14 days of the date of this decision and if that is received a Supplementary Decision will be issued confirming the approval of the Agreement.
[28] The Liquor, Hospitality and Miscellaneous Union-Western Australian Branch (the LHMU), the Health Services Union-Western Australia (the HSU) and the Australian Nursing Federation (the ANF), being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I will note that the Agreement covers these organisations.
COMMISSIONER
Appearances:
Mr Gaines on behalf of Aegis Health Care Group Pty Ltd
Ms N MacCarron on behalf of the Liquor, Hospitality and Miscellaneous Union
Mr M Olsen on behalf of the Australian Nursing Federation
Hearing details:
2010.
Perth:
May, 10
1 Bupa Care Services Pty Ltd v P & A Securities Pty Ltd as trustee for the D’Agostino Family Trust T/as Michel’s Patisserie Murwillumbah and others [2010] FWAFB 2762 at [49].
2 ANF Letter to FWA dated 11.5.2010
3 Section 2.09 and Schedule 2.2 of the Fair Work Regulations 2009.
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