Australian Institute of Marine and Power Engineers, The-Queensland Branch v Port of Brisbane Corporation
[2010] FWA 4419
•15 JUNE 2010
[2010] FWA 4419 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Australian Institute of Marine and Power Engineers, The-Queensland Branch
v
Port of Brisbane Corporation
(B2010/61)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 15 JUNE 2010 |
Summary: application for a majority support determination – evidence that employer agreed to bargain – scope of agreement not subject matter for majority support determination - application dismissed.
[1] This application was made by the Australian Institute of Marine and Power Engineers, The-Queensland Branch (“AIMPE”) under s.236 of the Fair Work Act 2009 (“the FW Act”). AIMPE sought a majority support determination that a majority of the employees who would be covered by a proposed agreement want to bargain with the employer who would also be covered by the agreement. The employer was the Port of Brisbane Corporation (“the POBC”).
[2] At the conclusion of the proceedings in relation to this application the representative for AIMPE sought some time to obtain further instructions, in light of the discussion set out below, as to the status of the application as made and was to report back to Fair Work Australia later that day. The representative failed to report back and when approached some time thereafter to confirm AIMPE’s intentions, he sought a further period of time still to indicate AIMPE’s intentions.
[3] Given this situation, and so as not to create continuing uncertainty about the outcome of the proceedings, I have undertaken to determine the outcome of the application myself. It is practical to do so for reason the proceedings had been completed and the necessary evidence adduced.
STATUTORY CONTEXT
[4] Section 236 of the FW Act states:
“(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.”
[5] Section 237 of the FW Act states:
“Majority support determination
(1) FWA must make a majority support determination in relation to a proposed single-enterprise agreement if:
(a) an application for the determination has been made; and
(b) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which FWA must be satisfied before making a majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by FWA; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
[6] AIMPE contended that it was a bargaining representative of the kind described under s.176 the FW Act (which was uncontested) in relation to three employees who are Chief Engineers and Relief Engineers (collectively referred to as “Chief Engineers”) on a trailer suction hopper dredge, the ‘Brisbane’.
[7] The terms and conditions of the three engineers are currently regulated by common law contracts, it appears.
[8] For particular reasons relevant to the bargaining history between the parties, the Chief Engineers do not fall within the scope of the general crew agreement. AIMPE now seeks to have the Chief Engineers terms and conditions regulated by an enterprise agreement, particularly in the context that the POBC’s employees will be transferred to a new corporate entity as part of the Queensland Government’s announced sale of various government owned assets.
[9] It is uncontested in this matter that AIMPE has demonstrated that the requirements of s.237(2)(a) of the FW Act have been met. This is because AIMPE led two signed authorisations by two of the three Chief Engineers who may be covered by the agreement sought by AIMPE.
[10] AIMPE contends that s.237(2)(b) of the FW Act is satisfied for reason that the POBC had hitherto not agreed to bargain or to initiate bargaining for an enterprise agreement for Chief Engineers. Whilst AIMPE conceded a discussion had occurred with the POBC, the POBC had not agreed to cover the Chief Engineers in an agreement and so indicated in writing as follows (on 23 April 2010):
“The Corporation does not see any need to extend Enterprise Agreement coverage to Chief Engineers and Relief Chief Engineers. These employees are managers within the Corporation and receive remuneration and benefits which reflect the flexibility associated with their roles.” 1
[11] AIMPE contended that correspondence demonstrated that the POBC had not agreed to bargain, and instead put revised offers to the Chief Engineers under common law contracts of employment. It appears that the POBC took this position as it deems the Chief Engineers to be managers who receive a level of remuneration in return for particular flexibilities associated with their roles. There is further discussion of this below.
[12] AIMPE also claimed that the requirements of s.239(2)(c) and s.237(3A) of the FW Act are satisfied because the Chief Engineers are located in a geographically distinct location and employed in a specific location (on board the dredge Brisbane). AIMPE also contended that the Chief Engineers were an operationally and organisationally a distinct group, and that this was evidenced by the way in which the POBC had sought to regulate their terms and conditions of employment by common law contracts and as separate from the ships general complement or crew.
[13] For the purposes of s.237(d) of the FW Act, AIMPE contended that that in all the circumstances Fair Work Australia should exercise its discretion to make the determination sought.
[14] It is clear from the correspondence from the POBC dated 7 April 20010 that the POBC had not agreed to bargain for any agreement in relation to Chief Engineers or to initiate bargaining despite agreeing to meet with AIMPE to discuss and better understand AIMPE’s request.
[15] Following a meeting on 23 April 2010 between the POBC and AIMPE. The POBC expressed the view cited above in relation to the Chief Engineers. 2
[16] A further meeting, however, occurred on 7 May 2010, which included other bargaining representatives (the AMOU and the MUA) in which there were discussions about the various arrangements in relation their members, including preferences for separate or single agreements. At that meeting, AIMPE agitated the issue of the need for the Chief Engineers (for the purposes of this application) to have a separate enterprise agreement. The POBC indicated, so it is claimed, that that would be a matter for the bargaining process once the unions’ logs were received. 3
[17] This context demonstrated that to AIMPE that the POBC had not agreed to bargain or to initiate bargaining and therefore, subject to other statutory considerations being satisfied or being in existence, a determination of the kind for which application has been made should issue.
[18] It became apparent at the hearing by way of comments by the bargaining representative for the POBC that the POBC, from its own perspective, had agreed to bargain with AIMPE. 4
[19] AIMPE maintained that the POBC’s conduct did not demonstrate that this concession was genuine as the POBC had continued to offer common law contract renewals for its Chief Engineers and the Corporation had not conceded to include the Chief Engineers in the scope of any agreements it might make in the future (with other bargaining representatives, such as the Maritime Union of Australia and the Australian Maritime Officers' Union. 5
[20] The evidence given by the General Manager of Corporate Services of the POBC, Mr Snell, was that the POBC agreed to participate in bargaining with AIMPE in relation to Chief Engineers:
“You've heard the discussions today in relation to the bargaining on behalf of Port of Brisbane Corporation, with AIMPE representing engineers in its broader sense, so both engineers, chief engineers and relief chief engineers. Are you prepared to give an undertaking to participate in bargaining with AAIMPE representing those employees?---Yes.” 6
[21] Mr Snell also gave evidence that the POBC was prepared to meet its various obligations under s.228 of the FW Act.
[22] Mr Snell articulated the POBC’s willingness to comply with each of the requirements of s.228 of the FW Act in the conduct of bargaining with AIMPE in relation to the agreement that it sought to press. 7
[23] Following that evidence, the cross examination by Mr Yates of AIMPE led to the following exchanges:
“The undertaking that you've just made, what do you see the effect of that undertaking being, in relation to negotiations for the chief engineers and relief chief engineer?---That we will meet and discuss.
Is that a concession that they will be able to be covered by an enterprise agreement registered under Fair Work Australia? --- No, I'm not agreeing to that. I'm saying that we will meet and discuss that as an issue.
So in effect you have not yet agreed to bargain?
MR ASPROMOURGOS: No, that's not what he said at all, and "agree to bargain" is a particular meaning and context within the legislation and that is an unfair question to ask Mr Snell.
MR YATES: Your Honour, I think given Mr Snell's role and experience within government owned corporations and certainly ability to make some assertions about undertakings and so on in relation to the act, I think he understands what the term is, "Have you agreed to bargain?"
THE SENIOR DEPUTY PRESIDENT: I'm not sure where it's going to go other than the evidence Mr Snell has already said, which is in effect he will bargain with you but he's not going to guarantee the outcome you desire.
Mr Snell, is that - - -? ---Yes.
MR YATES: We would perceive that as not agreeing to bargain.” 8 (my emphasis)
[24] It appears to me that AIMPE views the satisfaction of s.237(2)(b) of the FW Act requires POBC to have agreed to the scope of the agreement that is the subject of agreed bargaining, and not just an agreement to bargain in accordance with the bargaining processes of the FW Act. 9
[25] In this regard, a Full Bench of Fair Work Australia has found as follows:
“It should be noted, however, that there is no statutory basis for the concept of a “formal recognition of the preference of the majority to bargain about a particular proposed agreement” beyond the good faith bargaining requirements in s.228. Further, whilst agreement to bargain imports a preparedness to bargain about an agreement or agreements proposed by the majority of employees, both in respect of the scope and terms and contents of an agreement or agreements, it does not require the bargaining to occur only in respect of a particular form of proposed agreement sought by the majority of employees and their bargaining representative.
It should be noted, given the competing views of the parties as to the number and scope of agreements which should be made, that a majority support determination does not determine the scope of bargaining, any more than it determines the terms and conditions to apply. Once bargaining has commenced, s.238 is available to deal with disputes about the scope which impede bargaining. Unlike a majority support determination, a scope order can limit or extend the scope of bargaining, through a requirement to include or exclude a class of employees in bargaining for a proposed agreement or requiring bargaining collectively with different classes of employees in relation to separate agreements.” 10
[26] Whilst an employer might agree to bargain in relation to an agreement of the requisite kind (as defined under s.172 of the FW Act) the employer is not required to concede to the agreement preferences or the scope of the agreement sought by the bargaining representative. Indeed, no agreement might be made in the end, but what is necessary under the statute is that the bargaining processes are conducted in accordance with the terms of s.228 of the FW Act.
[27] It appears to me on the evidence that the employer in this matter has agreed to bargain in relation to an agreement under s.172 of the FW Act, will conduct itself in accordance with s.228 of the FW Act, but will not make any concessions (at this juncture, if at all) in relation to the content or the scope of the agreement, or whether in the end any agreement is warranted in relation to the three employees concerned.
[28] While this may be a concern to AIMPE, it has at its disposal as a consequence of the POBC’s agreement to bargain, access to s.228 of the FW Act and other machinery under the FW Act to facilitate the bargaining process. In effect, therefore, AIMPE has realised the very result that it set out to achieve (or perhaps the only result it could have achieved) by way of the application under s.237(1) of the FW Act.
CONCLUSION
[29] In my view, the employer in this matter has agreed to bargain in accordance with the bargaining provisions of the FW Act. As a consequence, the precondition to a majority support determination required at s.237(2)(b) of the FW Act is not in existence and the determination under s.236(1) of the FW Act cannot be made.
[30] Alternatively, in my view, in the circumstances of this matter where at the hearing (and if not before) the employer has agreed to bargain in the statutory framework, I would not consider, for purposes of s.239(2)(d) of the FW Act, that it is reasonable in all the circumstances to make the determination.
[31] The application under s.236(1) of the FW Act therefore is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr G Yates for the Australian Institute of Marine and Power Engineers, The-Queensland Branch
Mr A Aspromourgos of Livingstones Australia for the Port of Brisbane Corporation
Hearing details:
2010.
Brisbane.
May, 27.
1 Statement of Mr Michael Snell dated 27 May 2010 at Attachment MS5
2 Statement of Mr Michael Snell dated 27 May 2010
3 See Statement of Mr Michael Snell dated 27 May 2010; Transcript of Proceedings dated 27 May 2010 at PNS 182-183
4 Transcript of Proceedings dated 27 May 2010 at PNS 50-51
5 The POBC maintained that the extension or otherwise of the common law contracts was not an impediment to bargaining under the terms of the FW Act for an enterprise agreement.
6 Transcript of Proceedings dated 27 May 2010 at PN 184
7 Transcript of Proceedings dated 27 May 2010 at PNS 228 – 238
8 Transcript of Proceedings dated 27 May 2010 at PNS 199 - 206
9 Appeal by Liquor, Hospitality and Miscellaneous Union against decision of O’Callaghan SDP of 19 August 2009 [[2009] FWA 101] – Re: Coca-Cola Amatil (Aust) P/L [2009] FWAFB 668 (28 October 2009) at PN 36
10 Appeal by Liquor, Hospitality and Miscellaneous Union against decision of O’Callaghan SDP of 19 August 2009 [[2009] FWA 101] – Re: Coca-Cola Amatil (Aust) P/L [2009] FWAFB 668 (28 October 2009) at PN38 - 39
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