Australian Municipal, Administrative, Clerical and Services Union

[2020] FWC 1787

[2020] FWC 1787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Australian Municipal, Administrative, Clerical and Services Union
(B2020/212)

COMMISSIONER SIMPSON BRISBANE, 2 APRIL 2020

Application for a bargaining order – Alleged failure to meet good faith bargaining requirements – section 228(1)(c),(d) and (e)

[1] A decision and related bargaining orders were issue by me on Tuesday 31 March 2020 granting an application by the Australian Municipal, Administrative, Clerical and Services Union -Together Branch (Together ASU) for Bargaining Orders against Mater Misericordiae Limited T/A Mater Group (the Mater). I said in that decision issued on Tuesday that fulsome reasons for that decision and orders would be issued later in the week. These are those reasons.

[2] On Wednesday 25 March 2020, the Together ASU filed and served an application pursuant to s.229 of the Fair Work Act 2009 (the Act) seeking bargaining orders against the Mater pursuant to s.230 of the Act.

[3] Together ASU submitted that the section 229 application was based on a course of conduct that Mater failed to meet good faith bargaining requirements stipulated in s.228(1) (c), (d) and (e) of the Act. It was submitted that such failure is enough that the Commission could be satisfied that it was reasonable in all the circumstances to make the bargaining order sought.

[4] The matter was allocated to my chambers and listed for conference on 26 March. Together ASU, United Workers Union (UWU), and the Association of Professional Engineers Scientists and Managers Australia (APESMA) were represented at the conference along with the Mater.

[5] It became apparent that the substance of the dispute was whether a ballot which was to commence on Wednesday 1 April should be allowed to proceed. It was common ground between the parties that the 7-day access period had commenced and would end on 31 March.

[6] It was apparent a decision as to whether the ballot should proceed or otherwise would need to be made on either an interim or final basis before midnight on 31 March. As the matter could not be resolved in conference and needed to be dealt with expeditiously, I issued directions that afternoon for the Unions to file evidence and submissions by Friday 27 March and for the Mater to file by 10am on Monday 30 March.

[7] A hearing was held at 2pm on 30 March 2020. Mr Michael Thomas appeared on behalf of Together ASU, Mr Dermot Peverill appeared on behalf of UWU, and Mr Gianni Sottile appeared on behalf of APESMA. Mater was represented by Mr Nick Le Mare, Partner of Corrs Chambers Westgarth and was instructed directly by Mr Langford of the Mater. Mr Le Mare was granted permission under s. 596 of the Act to appear for reasons given in transcript. The UWU and APESMA as bargaining representatives, supported the application.

Background

[8] It was common ground that Together ASU, UWU, APESMA and a number of employee bargaining representatives have been bargaining with Mater for a new collective agreement titled the Mater Health Practitioners’ Enterprise Agreement 2019-2022 (proposed agreement) to cover Health Practitioners directly employed by the Mater.

[9] For the sake of clarity, in the evidence where there have been references by parties to Professionals Australia, or Pharmacy Professionals Australia they are referred to as APESMA in this decision.

[10] Ms Angela May, Industrial Advocate for Together ASU, adopted her witness statement 1 and was not cross examined on its content. Ms May gave evidence that she attended 12 bargaining meetings with the last on 12 March 2020. The ASU submissions indicated that the bargaining representatives met on 11 occasions since 18 June 2019 to negotiate a replacement agreement on behalf of members and employees. Mr Langford adopted his witness statement.2 It was Mr Langford’s evidence that there had been approximately 12 meetings since 18 June 2019.

Unsuccessful Ballot

[11] Together ASU submitted that despite the parties not reaching agreement on multiple claim items, the Mater put the offer out to vote. Results were declared on 10 February 2020 and of the 631 eligible employees, 503 employees voted, of which 64% voted No. Mr Langford confirmed these figures in his evidence.

[12] Mr Langford said that on 24 February 2020 at his request, Abbey Platen, a Mater Industrial Relations Advisor, sent a calendar invitation to a list of persons representing the Mater and unions and employees for a meeting in relation to the proposed agreement. Ms May for Together ASU gave evidence that the meeting was scheduled following the proposed agreement being voted down.

6 March email from Ms Olson to staff

[13] Mr Langford gave evidence that he helped draft an email that Ms Olson sent to HP staff that included the following.

“..We have now invited all parties back to the negotiating table and a meeting has been scheduled for 12 March 2020.

We welcome the opportunity to spend time with your employee representatives to further explore the key issues so that we can resolve this matter together.

Mater is not in a position to increase our offer however we are eager to hear your feedback and explore all available options for resolution.

Lets listen to and work with each other to find a solution.

We’ll provide an update on the outcome at the end of the 12 March meeting.

Kind regards

Anna Olson
Head of Clinical Support Services
Mater Health”

Meeting of 12 March

[14] Together ASU submitted that the parties subsequently met again on 12 March 2020 in which Adrian Langford, Manager of Industrial Relations, stated his belief that the four main issues for employees rejecting the offer were due to the proposed two-tiered wage structure, the no contracting-out claim, the proposed span of hours and the wages offer.

[15] Together ASU submitted that at the 12 March meeting, Mr Langford further stated that there was room to move on the proposed span of hours and wages offer. However, these items were not further discussed at that meeting or since.

[16] Mr Sottile, Lead Organiser for APESMA, adopted his witness statement 3 and was not cross examined on its content. He gave evidence that it was his understanding that the purpose of the meeting on the 12 March was for Mater to better understand why there had been a “No” vote and to further resolve the differences between the parties on the major sticking points, namely, the two-tier pay structure, the quantum of pay rises, the contracting out clause, and span of hours.

[17] Mr Sottile said it was his recollection that Mr Langford structured the meeting as follows:

1. Acknowledgement of and key reasons for the “No’ vote;

2. Key differences of opinion between the parties; and

3. Wrap up of meeting and where to next.

[18] Mr Sottile said throughout the meeting, there were discussions concerning these key issues and APESMA delegates Maria Kapuya and Sharon Choy also spoke to the value of pharmacy services to the Mater Hospital.

[19] Ms May gave evidence that there was no agenda distributed and Mr Langford stated Mater’s view that there were four mains issues which caused employees to vote “No” to the agreement offer in February being:

a. The proposed two-tiered wage structure in pathology/pharmacy;

b. The annual wage increase offer;

c. The no contracting out clause;

d. The proposed removal of span of hours.

[20] Mr Wainwright, a Medical Scientist at the Mater, adopted his witness statement  4 and gave brief additional oral evidence in chief. He said Mr Langford chaired the meeting and four key points of the two-tiered wage system, the span of hours, contracting and pay rise were tabled for discussion and summarised by the Mater and employee representatives.

[21] Mr Rishi a Medical Laboratory Scientist at the Mater adopted his witness statement 5 and gave brief additional oral evidence in chief. He said at the meeting Mater outlined what they believed were the four sticking points.

[22] Mr Langford said there was no written agenda distributed prior to the meeting however he prepared some personal notes, so he could facilitate the discussion that he provided with his evidence. The notes included at 1. Welcome, 2. The vote – 64% no vote, 3. the four issues already referred to as the reasons for the no vote, 4. Moving forward, and 5. wrap up next steps.

[23] It was put to Mr Langford that as there was no agenda, union bargaining representatives were not put on notice that they were to table proposals at the meeting. Mr Langford said there were communications prior to the meeting that it would explore options. Mr Langford accepted that it was not said this was to be the last meeting.

[24] Mr Langford said that he said to the meeting that the Mater was not in a position to change the offer put to employees for the first vote but was keen to hear feedback from employee representatives and to explore options for resolution.

[25] Ms Debra Hornsby, the General Manager of Mater Pathology, adopted her statement 6and gave further oral evidence in chief. Ms Hornsby said she understood the issues of concern were no contracting out clause, span of hours clause and the two-tiered pay scale. Ms Hornsby said throughout the meeting Mr Langford made it clear that the offer put to vote in February was Mater’s best offer and Mater was not able to propose any changes to improve the offer overall.

Wages and span of hours

[26] Mr Sottile said there were new proposals raised by both the Mater and the employee bargaining representatives at the meeting, including Mr Langford raising that the Mater could move on the deletion of the span of hours clause, and the wages offer. Ms May said that Mr Langford stated at the 12 March meeting that there was “room to move” on the wages and span of hours issues.

[27] Mr Wainwright said that Mr Langford did suggest that there was some “room to move on the span of hours” however did not suggest how this would be implemented and then proceeded to suggest the wage offer of 2% and the two-tiered system he presumed, were linked.

[28] Mr Rishi said that the Mater was asked if it had anything else to offer the bargaining group and Mr Langford responded there was room to move on the wage offer and the removal of the span of hours clause.

[29] Mr Langford said that he said that Mater’s position on wages was unchanged and that a potential alternative to the two-tiered classification structure would be to reduce the wage increase, however that this would not be feasible as it would not be acceptable to the workforce and so had not been pursued by Mater.

[30] Mr Langford said that he invited suggestions in relation to the issue and there were no proposals put forward for alternatives. Mr Langford said that during the meeting he also acknowledged that removing the span of hours clause remained an issue and he said that Mater had ‘room to move’ on this point to find a resolution. Mr Langford said there was no discussion about what a potential solution might be, and no proposals were put forward by Mater and no proposals were put forward by any other party.

[31] Mr Langford was asked if any union representatives said they would not put forward a span of hours clause. Mr Langford accepted that no union said they would not.

[32] Ms Hornsby said Mr Langford invited suggestions as to different wording for the span of hours clause and that Ms May stated that because they were not given an agenda for the meeting in advance they could not prepare anything to suggest. Ms Hornsby said no proposals were put forward on this issue, but they did state they could put something forward at a later time. In cross examination Ms Hornsby accepted that she was referring to the union putting a proposal forward. Ms Hornsby said however she understood the proposal was to talk about it at the meeting. Mr Hornsby was asked if anyone said at the end of the meeting no further proposals would be considered and she said no.

Two-tiered wage structure

[33] Mr Sottile said Mr Langford suggested that unions could trade off a lower wages offer in exchange for the removal of a two-tier wages offer. Ms May said that Mr Langford stated that due to the Mater’s financial position, there was no room to move on the two-tiered wages structure and no contracting out clause. Ms May said lengthy discussions then followed from union delegates on the two-tiered wages structure.

[34] Mr Sottile said before the Mater ended the meeting, he put to them a proposal on behalf of the employee representatives that the Mater consider productivity measures that would produce the same level of saving as the two-tier wage structure. He said he also asked that a decision maker who could reach agreement in-principle attend the next negotiation meeting. He said his recollection is that Mr Langford verbally agreed to respond to these requests.

[35] Mr Wainwright said staff union delegates communicated that the biggest obstacle to the agreement is the proposal of two separate pay scales, one for existing employees and one for new employees coming into the organisation at lower rates of pay. Mr Wainwright said the next hour was spent hearing individual cases from pharmacy and their concerns.

[36] Mr Wainwright said Mr Langford explained that there was no money to make changes to this item and that the hospital is not in a financial position to maintain current wages to new staff.

[37] Mr Rishi said the major sticking point was the introduction of a second pay scale for pharmacy and pathology and it was discussed in detail for approximately one hour. He said repeated responses from the Mater were that there would be no movement on this item.

[38] Mr Langford said that the two-tier classification was the primary issue for most people in the room but only impacted the pharmacy and pathology work groups. Mr Langford said he wanted to understand why the majority voted no when it did not impact them. He said the feedback was that other employees were concerned that the two-tier structure would be implemented in other areas and it was an attack on worker value.

[39] Mr Langford said he spoke about the financial circumstances of the Mater and the current rates for pharmacy and pathology are significantly higher than the private sector who tender and compete with the Mater. Mr Langford said it was not possible for the Mater to continue to match Queensland Health rates.

[40] Mr Langford said he raised one possible option to move away from the two-tiered classification structure to include a reduction in wages overall, however the Mater did not wish to disadvantage the current workforce. Mr Langford said the Mater did not have any room to move and its position had not changed.

[41] Ms Hornsby said the reason for the two-tier wage scale is to realign wages away from the public sector and toward the private sector and this was discussed at the meeting. Ms Hornsby said over the years, Mater Pathology has been working to pull back a huge budget deficit to break even and wages needed to be addressed for this to occur and for it to become a sustainable business.

[42] Ms Hornsby said both Mr Langford and Ms Buttner made comments to the effect that the pay scale structure within the agreement was the best offer Mater could make and there was no room to move. Ms Hornsby said that it was put to the union representatives by Ms Buttner that the only alternative option available would be a consolidated pay scale however this would apply to both existing and new employees and would therefore negatively impact existing employees and was not acceptable to anyone and this was agreed.

Contracting out

[43] Mr Sottile said APESMA did not have the opportunity to genuinely consider, explore or respond to the proposals and suggestions at the meeting. He said at the meeting, Mr Langford referred to the unions’ claim regarding contracting out as a “no contracting out” clause. He said the unions clarified that they were not attempting to make such a claim and were instead seeking to have a contracting out clause that required contracting out on no less reasonable terms. Mr Sottile said his recollection of Mr Langford’s response was that he would be open to a proposal to some language on contracting out in the agreement, and this is an item that APESMA was genuinely considering.

[44] Ms May said APESMA and Together ASU also spoke regarding the no contracting out clause. Ms May said a clause had been provided to Mater during negotiations which they rejected. Ms May said it was stated by the unions that their intention was not to prevent the Mater from contracting out, in fact it was unlawful for them to seek to do so. Ms May said they had sought only that it occur as a last resort and for any contractors to be employed on the same conditions as current employees. Ms May said that Mr Langford stated he did not recall that was what was requested. Ms May said they offered to resend the clause to the Mater for them to revisit. Ms May said it was her recollection that Mr Langford indicated they could resend it to him.

[45] Mr Wainwright said Mr Langford explained that the Mater was committed to having the ability to contract out services. Mr Wainwright said Mr Sottile made clear that the union was seeking a limit to contracting out, not a prevention, and that members were more concerned with not being notified of contracting out by the hospital as occurred to medical imaging staff during negotiations.

[46] Mr Rishi said Mr Langford said that there was no movement to be had on contracting out. Mr Rishi said discussion then ensued on the no contracting out clause in which it was pointed out to Mr Langford by the unions that he had been provided with alternative wording at an earlier meeting by Together ASU which did not prevent the Mater from contracting out. Mr Rishi said Mr Sottile reminded Mr Langford that it was unlawful to try and include a no contracting out clause in an agreement and they were not trying to do that.

[47] Mr Rishi said that Mr Sottile further advised Mr Langford they were seeking that the Mater would consult with employees before embarking on the process of contracting out. He said Mr Langford stated he would be open to receiving words for the clause and take it to the Board who would ultimately decide whether this could be included.

[48] Mr Rishi said the union reiterated they had already supplied the words that were acceptable to members to which Mr Langford replied that those words were not acceptable to the Mater. Mr Rishi said when pressed if he could come up with a clause, Mr Langford said that he would not do it there and them, he would need time and could come up with something after looking at appropriate policies and procedures, a copy of which he would forward to the bargaining group.

[49] Mr Langford said Mr Sottile considered that a no contracting out clause should be included or alternatively there should be greater consultation provisions applying to contracting out situations. Mr Langford said he said words in response to Mr Sottile to the effect that the Mater would be unable to change its position on this issue as they could not limit their ability to implement structural change should it be required at some point in future. He said there was discussion of the prior outsourcing of medical imaging staff and he explained that the Mater cannot always share information about these matters because it is commercially sensitive.

[50] Mr Langford said they could discuss a ‘motherhood’ statement on contracting out, but Mr Sottile indicated there would be no purpose unless the changes had practical implications. Mr Langford said he advised that the unions desire for a pre-decision consultation or to contracting out on no less favourable terms were not achievable.

[51] Mr Langford said Mr Sottile also asked if they could draft and confirm some contracting out words during the meeting and he advised that the Mater’s position had not changed and in any case, he would want to consult internal stakeholders prior to confirming anything drafted during the meeting. Mr Langford said no proposals, including indicative drafting, were progressed during the meeting.

[52] Mr Langford was asked if he told Mr Sottile not to bother drafting anything. Mr Langford said that is not how it was. It was put to Mr Langford that by saying he would want to consult internal stakeholders it indicates he would accept further drafting. Mr Langford said the Mater’s position had not changed and he was not in a position to confirm drafting on the spot. It was put to Mr Langford that the uncontested evidence of Mr Sottile was that Mr Langford said he was open to a proposal on contracting out in the proposed agreement. Mr Langford said he was always open to proposals but none were put forward and no one said they would put one forward. Mr Langford said following the meeting there was also an opportunity to put one forward.

[53] Mr Langford was asked if he invited a proposal on contracting out. Mr Langford said he suggested a motherhood statement could be drafted but that opportunity was not taken up.

[54] Mr Langford was referred to the uncontested evidence of Ms May where she said “We offered to resend the clause to Mater for them to revisit. It is my recollection that Mr Langford said we could sent it to him.” It was put to Mr Langford that his statement is not correct. Mr Langford said there is a standing offer to accept proposals, but no proposal was made or received by the Mater. It was put to Mr Langford that Ms May’s evidence made clear an expectation that an offer would be put. Mr Langford maintained his view on the issue.

[55] Mr Langford was referred to the draft minutes attached to his evidence which said as follows “I did expect we would have further discussion on no contracting out clause. “We can’t limit our ability to limit structural change”, and “if there is some motherhood statement, wording we can insert – we can’t limit that.” It was put to Mr Langford that the minutes do not indicate they would not negotiate. Mr Langford said he never said to bargaining representatives not to send material but the opportunity was not taken up.

[56] Mr Langford said Mr Sottile queried his authority to make decisions and whether he would need to escalate any decision about drafting to a senior person within the Mater such as the CEO Dr Steer for approval, to which he said he responded that there was no need to do that as he was the nominated Mater representative for this negotiation process. Mr Langford said the issue of contracting out was not pursued any further by any party.

Meeting ends abruptly

[57] Mr Sottile said at no point did the Mater suggest that this was the last bargaining negotiation meeting or opportunity to discuss key bargaining issues, and it was his understanding following the meeting that they would receive responses to their proposals put to the Mater and they would likewise respond to the Mater. Mr Sottile’s evidence was uncontested on these matters.

[58] Ms Angela May said that APESMA asked if there was any information that unions could take back to their members and the Mater asked the non-management representatives present at the meeting for a solution to how the Mater could achieve their financial obligations whilst also satisfying employees. Ms May said Mr Lee Sallaway from UWU stated that it was not the responsibility of employees to do this, particularly as they did not have access to commercial-in-confidence information that management have at their disposal in order to make these decisions, which is Mater’s job.

[59] Ms May said the meeting became acrimonious following this last discussion and ended shortly thereafter. Ms May said at no stage did the Mater indicate negotiations were over or that they would put essentially the same agreement to a second ballot.

[60] Ms May said that given the statement of Mr Langford that there was room to move on wages and span of hours, she presumed that a further meeting would be convened to further discuss those matters, as they did not have an opportunity to explore these issues at the 12 March 2020 meeting.

[61] Mr Wainwright also referred to Mr Sottile asking Mr Langford if there was any extra information that unions could relay to members and Mr Langford then asked for suggestions around how Mater could achieve their financial goals and satisfy employees.

[62] Mr Wainwright referred to Mr Sallaway responding to this along similar lines to the evidence of Ms May however added that Mr Sallaway described Mr Langford’s request as farcical and showed incompetence. Mr Wainwright said offence was taken by this remark and the meeting quickly adjourned and the negotiable points were not revisited. Mr Wainwright also said there was no mention that the 12 March meeting would be the last negotiating meeting.

[63] Mr Rishi said at no point was it mentioned by anyone from Mater that this would be the last meeting, nor was it mentioned that this would be the final offer. Mr Rishi said repeated statements by the Mater representatives indicated to him that there would be further discussions regarding solutions to sticking points, the key point being Mr Langford’s statement that there was room to move on wages and span of hours.

[64] Mr Langford said that the meeting reached a point where he felt they had exhausted discussions on all matters and they called a break for all parties to consider their position and then reconvened. He said after reconvening no positions were put forward and it was clear that no resolution was going to arise from the meeting and there was an acknowledgement that they had reached a stalemate.

[65] Mr Langford said Mr Sottile suggested that the Mater explore ways of finding savings from alternative measures and productivity and he said the Mater had been clear on its financial position and there was no desire for the negotiations to become a cost initiative exercise. Mr Langford said they would go away and think about the position and where to go next. He said he did not agree to respond further to Mr Sottile on this issue.

[66] Mr Langford said that the Mater had tabled its best offer and it would not be getting better moving forward. He said the meeting came to an abrupt end and Mr Sallaway made a number of personally offensive comments throughout the meeting and he had asked Mr Sallaway to maintain respectful and professional conduct.

[67] Mr Langford said toward the end of the meeting Mr Sallaway called Mr Buttner incompetent and at this point Mr Langford considered it best to end the meeting as the discussion was no longer constructive, respectful or productive. He said there were no agreed action items arising from the meeting.

[68] Ms Hornsby said that Mr Langford said the Mater offer was the best offer and there was no room for Mater to move and no alternative proposals were put to Mater.

[69] Ms Hornsby gave evidence that there were discussions about the two-tier structure and after it was agreed that a consolidated pay scale where existing employees were negatively affected was rejected, Mr Langford asked if any of the union representatives had an alternative proposal and no alternative proposals were raised. Ms Hornsby said that at this point the discussions in the meeting became heated. Ms Hornsby said it was clear to her that the parties were at an impasse and the March meeting was concluded.

[70] Ms Hornsby said after the meeting she was doubtful that any future negotiations would be useful given the stalemate and overall tone of the meeting. Ms Hornsby agreed that it was not said at the end of the meeting that there would be no further meetings, or that it was the last meeting.

Discussions later 12 March in foyer between Ms Hornsby and Mr Rishi and Mr Wainwright

[71] Mr Langford said in his statement that later in the afternoon Ms Olson called him to a meeting and when he arrived, Ms Hornsby was also in the room and had provided Ms Olson an overview of matters discussed during the meeting. Mr Langford said Ms Hornsby said she had a discussion with Mr Rishi and Mr Wainwright after the meeting who suggested that if the Mater was to represent the two-tier classification structure in a single table, then the pharmacy and pathology work group may be open to voting yes to the proposed agreement.

[72] Mr Langford said in his statement that he understood employees had two main concerns with the classification structure as it was currently presented in the proposed agreement. Firstly, the classification structure levels were described according to competency, for example ‘competent pay point’ and ‘high level knowledge pay point’. Secondly the employees were fearful that because there were two separate wages rate tables, they could be transferred from one to the other.

[73] Mr Langford said this was the first time that bargaining representatives had indicated that if Mater were to re-present the classification structures, people might vote yes to the Agreement. Mr Langford said he agreed with Ms Hornsby that they should seek to represent the classifications into one table if this would assist to secure a successful vote.

[74] Ms Hornsby said in her statement that after the 12 March meeting she ran into Mr Wainwright and Mr Rishi and they both expressed that the meeting was tough and unproductive and they all agreed that they hoped they could find an acceptable resolution.

[75] Ms Hornsby said Mr Wainwright and Mr Rishi said the two-tier pay scale was a stumbling block and employees mostly fear that if departments are restructured in the future, Mater would be able to use the terms of the Agreement to force existing employees onto the lower tier scale, and they also did not like the new scale and classification definitions.

[76] Ms Hornsby said that Mr Wainwright and Mr Rishi proposed that if the pay scale could be merged into one scale with lower levels (e.g. -1, -2) then it would resolve the naming issues and the risk of being moved to a lower payscale in the future. Ms Hornsby said that she stated that if Mater could move them into one they would not use a negative number and that they would have to move all the scales up. Ms Hornsby said they agreed that this would be something to explore. Ms Hornsby said it was agreed to investigate how the information could be presented in a clearer way that would reassure employees.

[77] Ms Hornsby said that she told Mr Wainwright and Mr Rishi that moving existing employees to the lower tier was not how Mater intended for the terms to operate and that she would speak to Ms Olson and Mr Langford about representing the drafting of schedule 1 to provide further clarity and security to existing employees. Ms Hornsby said she meet with Ms Olson and Mr Langford agreed to progress some redrafting and this was a representation of the pay scales only and not a substantive change.

[78] Ms Hornsby said she returned to Mr Wainwright’s desk and told him that Mater had agreed to re-draft the schedule so that it was clearer and eliminated the risks that they had discussed earlier in the day.

[79] Ms Hornsby clarified that the discussion occurred in the foyer of level 4. Ms Hornsby said in oral evidence it was discussed that it would make sense to have a single pay scale as that would eliminate the naming convention and make clear existing employees could not be moved to an alternative scale and both Mr Wainwright and Mr Rishi agreed. Ms Hornsby said column A is very clear that if you are employed with Mater at the time (an existing employee) you remain on that scale until you leave, and column D covers anyone other than pharmacy and pathology and has a payscale until they leave, and column B and C apply to pharmacy and pathology staff for new employees. Ms Hornsby was asked if there was anything outstanding from the conversation she had with Mr Wainwright and Mr Rishi, and Ms Hornsby replied no they were the points they discussed.

[80] Mr Wainwright gave oral evidence in response to the statements of Ms Hornsby and Mr Langford with regard to the discussions with Ms Hornsby after the meeting on 12 March. Mr Wainwright described it as a hallway discussion. Mr Wainwright said he asked Ms Hornsby if she had received correspondence from Mr Billy Colless, an Organiser with the Together ASU about potential additional pay levels in the HP 3 pay scales. Mr Wainwright said Ms Hornsby said she was not aware of the proposal. Mr Wainwright said they briefly raised it with a view to further negotiating over it as it was not raised at the earlier meeting. Mr Wainwright said it was clear that it was an off the record conversation and meant to be taken back to the wider caucus for consultation before decisions were made.

[81] Mr Wainwright said later that afternoon Ms Hornsby came back around 2.30 or 3.00pm and said there would be a further meeting with himself and Mr Rishi about the issue. Mr Wainwright said after that he contacted Mr Colless and Mr Rishi to let them know, however he said they did not hear anymore before the commencement of the second vote.

[82] Mr Wainwright was asked if the matter of the combining two pay scales into one was discussed. Mr Wainwright said it was an idea to combine the two pay scales and make savings from the new employees. Mr Wainwright said the idea had been floated with some employees but there are no specifics yet.

[83] Mr Wainwright agreed there was a fear that with the new pay scale everyone could be classified on the new payscale. It was put to Mr Wainwright that the new pay scales addressed that issue and he disagreed and said nothing had changed and the fears have not been addressed. Mr Wainwright said it is the same (as the first proposal) it is just with the names in the scales removed and that the new proposal was not materially different.

[84] In respect to his proposal, Mr Wainwright said that for new employees there would be more levels at a lower level so it would take longer to get to the top which would achieve savings over time because it takes longer to get there. Mr Wainwright said this was different to what was in the proposed agreement.

[85] Mr Rishi said after they had just finished the 12 March meeting and a caucus meeting afterward, Ms Hornsby approached them and they raised the idea of one protracted pay scale but said it would need to be discussed with the wider bargaining group. Mr Rishi said Ms Hornsby agreed to that.

[86] Mr Rishi said they should discuss it in more detail later and it was about protracting the pay scale up to 10 levels in one pay scale rather than having two pay scales. Mr Rishi said there was no talk about this being a formal position and they were keen to talk about it but not to be put up to a ballot as they had not talked to other HP employees.

[87] Mr Rishi was asked about how the information was presented in the first document compared to the more recent document to pick up on the issues discussed with Ms Hornsby. Mr Rishi’s evidence was the way the new structure for the pay scales is set out is not what they were talking about with Ms Hornsby. He said the change is not the change they talked about.

[88] Mr Rishi emphasised that this had not yet been broadly discussed. Mr Rishi accepted that there were not substantial changes to what was offered in the first vote (in the new proposed agreement) apart from some rewording.

[89] Mr Rishi said it is his understanding if an existing employee on level 1/6 is promoted to 1/7 they would retain their existing rate of pay and not go up to a 1/7 rate of pay. He agreed that his proposal meant employees staying on one structure but in the Mater proposal for example if a HP 3 moves to a HP 4 the promotion does not mean going to the old HP 4 pay but the new HP 4 which is actually lower than his existing HP rate. He said he would not get a pay rise but effectively a pay cut. Mr Rishi said that would not occur under a proposed single pay structure.

[90] It was put to Ms Hornsby that Mr Wainwright and Mr Rishi’s proposal was one structure but that existing people stay where they are and she agreed. It was put to her that when she said the changes in the proposed agreement deals with this it doesn’t because there are still two structures. Ms Hornsby said she understood that existing employees in column A would progress within column A.

[91] Ms Hornsby was taken to the proposed payscale attached to the statement of Mr Langford and asked if an existing HP 3 if successful in getting a HP 4 role that is advertised would remain on the same payscale in column A or move onto the new payscale. Ms Hornsby said they would stay on what they are currently on because the wording is clear and says commences in a role with Mater Pharmacy subsequent to the date of operation of the agreement. It was put to Ms Hornsby that is not what her previous evidence was and it is therefore not true that you stay on the same payscale. Ms Hornsby’s evidence was that the proposed agreement was changed to make it clear which was an area Mr Wainwright and Mr Rishi were concerned about.

[92] Another example was put to Ms Hornsby of an existing HP 2 employee on paypoint 1 earning $31.9791 and that employee is subsequently successful in getting a HP 3. Ms Hornsby was asked if that employee moves to the $33.9956 rate and then progress up to $51.3729 in column A going forward. Ms Hornsby said that the employee would stay on the column A because they are employed by the Mater at the date of operation.

[93] It was put to Ms Hornsby that other evidence was that the employee would freeze on their current pay if they were promoted until the new payscales catch up and surpass that pay amount. Ms Hornsby said that was discussed with the old schedule but with the new schedule 1, the way she read the wording at the top it is that if the employee is employed at Mater they stay on column A.

[94] Ms Hornsby was asked if the notion that a promotion would move an employee to the new pay scale is incorrect and Ms Hornsby confirmed that is the way she is reading schedule 1.

Email from Ms Olson to employee’s 13 March 2020

[95] Mr Wainwright said two separate emails sent by Head of Clinical Services Ms Anna Olson, dated 13 and 17 March indicated from the Mater that bargaining was progressing. The 13 March email read as follows:

“Dear Colleagues

Our HP bargaining representatives met yesterday to better understand the key differences of opinion on a number of bargaining items. This meeting was called by Mater in good faith, with a view to identify common ground and to resolve this matter in the best interests of all parties.

Our present situation is challenging and we would like to acknowledge the constructive participation of your Mater colleagues who communicated your views professionally and respectfully. Unfortunately, the approach taken by one external organisation was harmful to our ongoing working relationship and Mater has since contacted that organisation to address that matter.

You advised that continuing to provide the highest quality healthcare service to our community is a priority. This priority is common among all parties, and is important that we acknowledge this shared intent as a foundation for achieving resolution.

‘Classification structures’ and ‘contracting out’ were discussed, along with ‘span of hours’. Many perspectives were exchanged.

Mater also advised that it is not in a position to increase cost beyond that offered previously and that our health industry will be operationally and financially challenged further this year.

We will reflect upon and consider all feedback offered and will continue to seek breakthrough pathways to resolution.

Further updates will follow as they occur.

Kind regards

Anna Olson
Head of Clinical Support Services
Mater Health”

[96] Mr Langford said he assisted to draft this email correspondence. It was put to Mr Langford that this letter indicated the day after the meeting the Mater was still seeking a way forward. Mr Langford disagreed. It was put to him that the language seeking breakthrough pathways to resolution indicated the Mater was seeking to continue with bargaining. Mr Langford again disagreed. It was put to Mr Langford that any HP employee reading the email could not conclude that bargaining was finalised. Mr Langford said there was no indication in the email that bargaining was continuing.

[97] Ms Olson also sent an email that day to a range of Mater management including Mr Langford forwarding them a copy of the email sent to HP employees. Included in the email was the following statement from Ms Olson:

“Post this meeting we received some very positive suggestions from our Pathology bargaining representatives which we think can be incorporated relatively easily while maintaining our overall position. Adrian will send more on this next week.”

[98] It was put to Mr Langford that at no point did he go back to the other bargaining representatives about how he was going to incorporate these suggestions and he agreed he didn’t.

Correspondence from ASU Together Secretary to Chief Executive Officer of Mater 16 March

[99] Together ASU submitted its Secretary, Mr Alex Scott, provided correspondence to Dr Peter Steer, Chief Executive Officer of Mater Group on 16 March 2020, seeking a meeting to resolve the bargaining stalemate and discuss key industrial issues. Together ASU submitted that as at the time of filing the application, it had not received a response.

[100] Ms May said because of the stalemate regarding the two-tier wage structure in pathology/pharmacy, Together ASU wrote to Dr Steer on 16 March seeking an urgent meeting to try and resolve the outstanding issues and they received no response to the letter.

[101] The letter read as follows:

“16th March 2020

Dr Peter Steer
Chief Executive Officer
Mater Group

Dear Dr Steer

Together writes in regard to seeking a meeting to discuss the impacts of the COVID-19 pandemic on Mater and to try and resolve key industrial issues in light of the outbreak. The key industrial issues are outlined below.

As you are aware, there has been ongoing bargaining occurring since June 2019 for a new enterprise agreement covering allied health staff across both private and public hospitals in the Mater Group. The agreement proposed by Mater was rejected by affected staff for a variety of reasons with the major concerns being the proposed two-tiered wage structure for pharmacy and pathology and the wage offer.

Staff were, and continue to be, overwhelmingly opposed to the proposed structure for pharmacy and pathology and negotiations may continue to be drawn out if the parties cannot come to a favourable position on this.

Together is seeking a meeting with you as a matter of urgency to discuss this issue with a view to finding a resolution to this stalemate in the spirit of working with the Mater to face the challenges ahead.

We look forward to your response, Michael Thomas is the Together point of contact and is available on [contact details removed].

Yours sincerely

Alex Scott”.

[102] Mr Langford said that on 16 March 2020 the Chief People Officer forwarded him a copy of a letter from Dr Steer from Ms May seeking a meeting to discuss the bargaining stalemate and key industrial issues. Mr Langford said he drafted a suggested response from Dr Steer and sent it back to the Chief People Officer. Mr Langford said he understood that the response was not issued.

17 March email from Ms Olson

[103] The 17 March email from Ms Olson to staff read as follows:

“Dear Colleagues

Our community, now more than ever, depends on our commitment to provide a compassionate health care service of the highest standard to those who need it.

We appreciate that for many of you, including our wider Mater colleagues, the ongoing HP EA industrial action has been uncomfortable and challenging. These actions have unfortunately impacted our patients’ experience while in our care.

Both Together Union and Professional Pharmacists Australia (PPA) continue to engage in industrial action against Mater and our health care service to the community. Today, both unions issued members with shirts displaying anti-Mater slogans. For Together Union, this action was Unprotected, and the union has since ceased the action.

We last advised you that Mater had initiated further discussions with bargaining representatives in a good faith effort to ease tensions and to identify a resolution. Whilst there is no easy solution, Mater is committed to making progress towards the goal of delivering a new agreement that best serves the collective interests of all parties.

We respectfully request employees reflect upon the purpose of this industrial action and whether it is in the best interests of our people, our patients and our community.

Kind regards

Anna Olson

……”

[104] Mr Langford said he assisted to draft this email. Mr Langford was referred to the second last paragraph of this email and asked if the language “We last advised you..” was referring to Ms Olson’s email to HP employees of 13 March. Mr Langford accepted that this language was a reference to the email of 13 March.

[105] Mr Langford was asked what in the email indicated that bargaining had finished. Mr Langford response was to the effect that the email did not say bargaining was continuing.

Changes to Proposed Agreement

[106] Mr Langford said on 19 March at 3.35pm he sent an email to the Mater Management representatives attaching the revised proposed agreement for their review and feedback. He said the changes were to clause 3.3 with respect to the classification structure and the tables in schedule 1. He said the Schedule 2 – List of Eligible Disciplines/Professionals also contained a broader list of health practitioners to be covered by the Agreement.

[107] Mr Langford was referred to the email of 3.35pm on 19 March and the language which states that the Mater needed to commit to VoteCorp by COB Friday (Monday latest) to run the process. It was put to Mr Langford that he had been in touch with VoteCorp by 19 March. He accepted that. It was put to Mr Langford that while Ms Olson’s email went on 17 March Mr Langford was planning to put the vote to ballot. Mr Langford accepted discussions were occurring.

[108] Mr Langford was asked if he advised any bargaining representatives between 19 March and 24 March that Mater intended to put the proposed agreement out to ballot and he said no.

[109] Mr Langford said Ms Hornsby emailed him at 6.58pm responding to his email and querying whether they could align pathology with pharmacy in the one classification table for consistency and so that it is easier to understand. Ms Hornsby supported this evidence.

[110] Ms Hornsby said that on 20 March she received a further email from Ms Platen with the updated Schedule 1 and Ms Hornsby subsequently confirmed the changes were acceptable and addressed the concerns articulated to her by Mr Wainwright and Mr Rishi on 12 March.

[111] Mr Langford said on 20 March he circulated the proposed agreement as updated to reflect Ms Hornsby’s feedback and on 23 March he sent a further email to confirm that the proposed agreement would be sent out to absentees by close of business the following day.

Commencement of access period for Ballot by Mater 24 March

[112] Together ASU submitted that on 24 March 2020, without notice, the Mater commenced an access period for a new offer which is not significantly different from the first offer voted down by its members, with the ballot scheduled to be held from 12:01 am Wednesday, 1 April 2020 to 4:00 pm Friday, 3 April 2020.

[113] Mr Sottile said on Tuesday 24 March 2020 he became aware that the Mater had decided to put their agreement out to vote as a member forwarded to him Mater’s internal communications announcing this plan.

[114] Ms May gave evidence that the ASU sent another letter to Mr Steer on 24 March 2020, again seeking an urgent meeting and has not received a response.

[115] Mr Wainwright said an email received on 24 March 2020 indicated that the Mater had abruptly changed its plans and decided to go ahead with a ballot to commence on 1 April in lieu of progressing negotiations.

[116] Mr Wainwright said this second ballot comes at a time when they are already facing unprecedented danger and uncertainty in the light of COVID-19 pandemic. Mr Wainwright said this is a time when workers should be focussed on delivering professional services but instead are being asked by their employer to make decisions that will drastically affect their professional future at the Mater.

[117] Mr Langford said that on 24 March at 3.49pm Ms Olson sent to HP employees an email announcing the commencement of a second access period. The email included the following:

“We wish to present you with an amended proposed Mater Health Practitioners Enterprise Agreement 2019-2022 to consider and approve by vote.

In response to the feedback from many of you and given the current worldwide uncertainty related to the COVID pandemic, we believe that voting now is in the best interests of all employees in order to confirm the many benefits currently on offer over the next three years.

……………….”

[118] Mr Langford said the email included an explanation of the changes and key features of the proposed agreement.

[119] Mr Langford said Mater instigated the second vote in circumstances where it believes that there is an imperative to conclude industrial unrest and prioritise time and resources toward its response to the current pandemic. Mr Langford said the Mater believes a yes vote will boost morale by providing certainty to employees. Mr Langford also said that the Mater would not typically conduct a vote during a school holiday period as many employees take leave and therefore considered the last available voting window was between 1 April and 3 April 2020.

[120] Mr Langford said the proposed agreement for the second vote is materially the same. Mr Langford was asked when Ms Olson sent the email if bargaining representatives were copied in. He said no but employee representatives and employee union delegates were.

[121] It was put Mr Langford that the unions did not get formal correspondence until the day after. He said he sent it to officials on 25 March. It was put to Mr Langford that he would not normally communicate with unions through the delegates and he said it depended on the context. Mr Langford accepted that the Mater did not explicitly advise bargaining was an end.

Together email to Mr Langford 25 March

[122] At 10:38 am on =25 March 2020, Mr Michael Thomas, Director of Together ASU, emailed Mr Langford seeking for the Mater to revoke the consultation and ballot period with respect to the new offer due to a breach of the good faith bargaining requirements.

[123] Together ASU submitted that the Mater was advised by Together ASU that it is breaching the good faith bargaining requirements by not complying with:

a. Sub-section 228(1)(c) of the Act by denying Together ASU the ability to represent its members by responding to any new proposals made by the Mater;

b. Sub-section 228(1)(d) of the Act by the Mater not allowing an opportunity to genuinely consider any new proposals by Together ASU which may resolve the outstanding issues for our members; and

c. Sub-section 228(1)(e) of the Act by engaging in capricious and unfair conduct which undermines collecting bargaining by:

i. not sending a new Offer to employees to vote on which has no significant changes from the previous Offer that was voted down by employees;

ii. not properly negotiating with the other bargaining parties on the claims which Mr Langford have expressed are the main outstanding issues for employees, despite admitting that there is room to move on two of those claims; and

ii. abruptly sending the new Offer out to employee consultation with a proposed ballot schedule, without any prior notice or communication with the bargaining parties.

[124] Mr Langford said he responded at 3.30pm saying amongst other things that the Mater intends to continue with the ballot and maintaining the Mater had at all times bargained in good faith.

Submissions

[125] It was not disputed, and I accept, that the application was properly made. The matter then turns on whether the Mater has in one or more ways breached the good faith bargaining requirements. Together ASU submitted that the Mater has failed to meet the good faith bargaining requirements sets out in s. 228(1)(c)(d) and (e) of the Act, which relevantly provides as follows:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

…

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;”

Section 228(1)(c) - Responding to proposals made by other bargaining representatives for the agreement in a timely manner

[126] Together submitted the breach in respect to s.228(c) is that there are outstanding proposals to which the Mater has not responded, and despite that, without notice, they commenced action to commence voting.

[127] The Mater submitted in response to the Together ASU complaint that it has been denied an opportunity to represent its members by responding to any new proposals made by Mater, that section 228(1)(c) is not concerned with the ability of a union to represent its members in the terms asserted by Together ASU; it is concerned with ensuring that the ‘other’ bargaining representative (i.e. Mater) responds to proposals put by the Applicant.

[128] The Mater submitted that section 228(1)(c) is not concerned with the loss or denial of a party’s opportunity to respond to new proposals for an agreement. Rather, the section is concerned with ensuring a bargaining representative’s timely response to a proposal that has already been made. It is therefore irrelevant for the purposes of section 228(1)(c) that Together ASU (or others) may have been denied an opportunity to respond to any new hypothetical proposals which, but for the second ballot, might have been made by Mater.

[129] The Mater also submitted that if Together ASU is asserting that the Mater has made a proposal, (which is denied by the Mater) the effect of section 228(1)(c) is to require the Applicant (and the other union and employee bargaining representatives) to respond to that proposal to the Mater in a timely manner. Any alleged proposals made by Mater are irrelevant to a determination of whether Mater has breached section 228(1)(c) of the Act in the circumstances of this case.

[130] The Mater submitted that there is no evidence before the Commission of any proposals made by the Applicant or other bargaining representatives to Mater which were not otherwise responded to by Mater in a timely way.

[131] Together ASU relies on the refusal to meet with its Secretary = and in the context of COVID-19. Together ASU submitted the Branch Secretary’s request for a meeting, while not a proposal in respect of a specific clause, was still a proposal to attempt to see a way through.

[132] The Mater said the only correspondence sent by the unions to the Mater between the meeting of 12 March 2020 and the commencement of the access period were two letters from Mr Scott of Together ASU to Dr Steer of Mater dated 16 and 24 March 2020.

[133] The Mater said the letter from Mr Scott to Dr Steer dated 16 March 2020 did not make any new proposal for the proposed agreement, but simply invited the Mater to participate in a meeting to resolve existing issues already discussed at the meeting of 12 March 2020 and in response to which the Mater had already recorded its position.

[134] The Mater submitted that the letter from Mr Scott to Dr Steer dated 24 March 2020 also did not make any new proposal for the proposed agreement, but simply followed up a response on the letter of 16 March 2020. The Mater submitted that in an email from Mr Thomas to Mr Langford dated 25 March 2020, Mr Thomas states that, at the bargaining representatives’ meeting of 12 March 2020, Mr Langford identified four issues which Mr Langford believed were responsible for the proposed agreement being voted down; and acknowledges that while the Mater said there was room to move on the span of hours and wages claim “no further discussions or negotiations have occurred on these items” but does not identify any proposal put by Together ASU for the proposed agreement to Mater either at the meeting or in the almost two-week period between the meeting and commencement of the access period for the second ballot.

[135] The ASU also submitted there was a proposal on the drafting of a clause in relation to the span of hours. The ASU submit that Mr Langford in the draft minutes at page 5 went to developing a proposal of a span of hours. I am satisfied from the evidence that it was reasonable for the union to have left the meeting on the basis it understood it was to make a proposal on the span of hours issue although none was put at the meeting itself.

[136] Together ASU also referred to the minutes at page 6 which include the statement “We don’t have access to your books, we request Mater find savings from other measure and productivity”.

[137] The Mater says Mr Sottile suggested that Mater consider productivity measures that would produce the same level of savings as the two-tier wage structure, to which Mr Langford responded immediately by noting that Mater had been clear on its financial position.

[138] Together ASU submitted another proposal was the new pay structure to ensure that current employees in pathology and pharmacy do not move to the lower payscale if they receive a promotion. Together ASU said it was not put in a bargaining meeting but was still a proposal. Together ASU categorises each of the above are proposals the Mater did not respond to.

[139] The Mater submitted that after the meeting, two union employee delegates suggested (for the first time) that the pharmacy and pathology work group may be more open to voting yes to the proposed agreement if the Mater re-presented the two-tier classification structure in a single table. The Mater submitted that it immediately responded to, accepted and made this change prior to putting the proposed agreement to a second vote.

[140] In advancing its argument that the Mater failed to respond to proposals made by bargaining representatives, Together ASU submitted that at the meeting on 12 March 2020, discussions regarding the use of contractors were had. It is Together ASU’s evidence that Mr Langford’s response in the meeting was that “he would be open to a proposal to some language on contracting out in the agreement”.  7 Mr Langford also stated at the meeting that “there was room to move on the proposed span of hours and wages offer”.8

[141] However, Together ASU submitted that these items were not further discussed at that meeting due to it ending abruptly. Nor have these issues been discussed since according to Together ASU.

[142] The Mater submitted in relation to the meeting of 12 March 2020, there is evidence that union bargaining representatives rejected an opportunity to put a proposal to Mater about how the Mater could achieve their financial obligations while also satisfying employees; and that union bargaining representatives were invited by Mater to put proposals in relation to at least two of the four main outstanding issues but did not do so.

[143] The Mater submitted that union bargaining representatives re-agitated their previous claims with respect to a ‘no-contracting out’ clause which claims had already been, and were again, rejected by the Mater during the meeting. The Mater says that at its highest, the evidence on this issue is that the Mater said it would be open to considering a proposal as to new language, but no such proposal was or has been made.

[144] The Mater says this is not a case where, for example, the Mater was presented with any substantially changed proposal from the other bargaining representatives which addressed major concerns that it had previously expressed (as was the case in APESMA v Peabody Energy Australia Coal Pty Ltd). 9 Rather, the unions’ communications sought to re-agitate long-standing issues, in response to which Mater had recorded its position and on which the parties had reached an impasse.

Consideration

[145] It is doubtful that letters from the Branch Secretary contained proposals “for the agreement” given the letters were in general terms. I am not inclined to regard the ‘idea’ raised by Mr Wainwright and Mr Rishi during the informal discussion with Ms Hornsby is a proposal made for agreement given on their own evidence they were not putting it as such.

[146] As stated above there was no proposal from the unions regarding the span of hours issue yet formulated in response to Mr Longford saying there was room to move on the issue, nor had the unions yet provided the Mater with a redrafted contracting clause. The discussion around achieving productivity measures did not produce a proposal for the agreement either. For these reasons I am not satisfied that the Mater failed to meet the requirements of s.228(1)(c).

Section 228(1)(d) – Genuinely considering proposals of other bargaining representatives and giving reasons for response

[147] Together ASU submitted that Mr Sottile’s evidence was that in the meeting on 12 March he put to the Mater to consider productivity measures that would produce the same level of saving as the two-tier wage structure. Mr Sottile also asked that a decision maker who could reach agreement in-principle attend the next negotiation meeting. Mr Sottile’s recollection is that “Mr Langford verbally agreed to respond to these requests and it was his understanding that Together ASU would receive responses to this proposal following the meeting.

[148] Together ASU again referred to the letters from Mr Scott to Mr Steer on 16 March 2020 and 24 March in advancing its argument that Mater failed to comply with s. 228(1)(d). For the same reasons as I did not accept this submission for the purposes of s.228(1)(c), I also do not accept it for s.28(1)(d).

[149] The ASU submitted that while Ms Olson was sending correspondence indicating negotiations were ongoing, Mr Langford was preparing to put the proposed agreement to vote. The Mater submitted the ASU case concerning section 228(1)(d) is also misconceived. It submitted section 228(1)(d) imposes a good faith bargaining requirement that a bargaining representative “[gives] genuine consideration to the proposals of other bargaining representatives for the agreement, and [gives] reasons for the bargaining representative’s responses to those proposals”.

[150] The Mater said in the United Workers Union outline of submissions, the argument is put in the following terms: “Mater is not giving any opportunity to genuinely consider any new proposals by UWU which may resolve the outstanding issues for our members (as per section 228(1)(d) of the Act)” and the formulation of this claim is similarly expressed by together ASU.

[151] The Mater said if the complaint is that the Mater has denied itself the opportunity to genuinely consider any new proposals, this misunderstands the operation of 228(1)(d). The Mater submitted that in the same way as for section 228(1)(c), the requirement to give genuine consideration to proposals under section 228(1)(d) clearly assumes that such proposals have in fact been made.

[152] The Mater said apart from the re-presentation proposal, there is no evidence that any other new proposals were made by together ASU or other bargaining representatives to Mater from the time of the meeting of 12 March 2020 to the commencement of the access period for the second ballot on 25 March 2020.

[153] The Mater says it gave genuine consideration to and accepted the re-presentation proposal. There were no other new proposals which Mater’s bargaining representatives were required to genuinely consider for the purposes of section 228(1)(d).

[154] The Mater submitted that the fact Together ASU and other bargaining representatives might now be unable to put any new proposals to the Mater (or that Mater now no longer has the opportunity to give genuine consideration to proposals which may have hypothetically been made but for the second ballot) is not a proper basis for concluding that section 228(1)(d) has been breached.

[155] The Mater said in any event, Together ASU and other bargaining representatives have not led any material which establishes that the Mater’s bargaining representatives failed to give genuine consideration to any proposal or to give reasons for their responses to such proposals. Its submitted the evidence establishes that the Mater has genuinely bargained with Together ASU, including by putting forward its own proposals in good faith. It put that this is not a case where, as in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia, the employer has remained mute during the bargaining process, only responding to accept or reject proposals put by others.

[156] The Mater said on the face of the evidence, this is a case where, despite genuine bargaining, the Mater has put forward its best offer and is simply unable to meet the specific claims of the unions as was acknowledged in Australian Municipal, Administrative, Clerical and Services Union v Global Tele Sales Pty Ltd, “the parties’ stances in negotiations are matters for them”.

[157] I accept the Mater’s submission that based on the evidence as there were not formulated proposals from the unions to respond to at the relevant time, I cannot find it failed to meet the requirements of s.228(1)(d).

Section 228(1)(e) - refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining

[158] Together ASU referred to CEPU v Contact Electrical Pty Ltd, 10 where Commissioner Deegan provided the Oxford Dictionary definition of “capricious” to be “a sudden and unaccountable change of mood or behaviour”.11 In that case, the employer had arranged to hold two further meetings with the CEPU but in actual fact were finalising the agreement for employees to vote. It was found that:

“The employer engaged in that conduct in a calculated move intended to undermine the role of the CEPU in bargaining, and, as such, undermined freedom of association and collective bargaining”.

[159] Together ASU submitted that the Mater has demonstrated just such a sudden and unaccountable change of mood or behaviour and on the following basis:

•  At the meeting on 12 March 2020, the Mater indicated there was “room to move” on some issues and Mr Langford and Ms Hornsby gave no evidence that there was any indication bargaining was at an end as was said in the uncontested evidence of the ASU witnesses;

•  The employer gave no indication at the end of the meeting on 12 March 2020 that it believed bargaining was at an end;

•  The email from Ms Anna Olsen of 13 March 2020, the day after the meeting, indicated that Mater would, “reflect upon and consider all feedback offered and will continue to seek breakthrough pathways to resolution”;

•  The email from Ms Olsen of 17 March 2020 stated that, “We last advised you that Mater had initiated further discussions with bargaining representatives in a good faith effort to ease tensions and to identify a resolution. While there is no easy solution, Mater is committed to making progress towards the goal of delivering a new agreement that bests serves the collective interests of all parties.”

•  At no point did the Mater advise Bargaining Representatives that it believed bargaining was at an end and it intended to put an Agreement out to further ballot;

•  The Union Bargaining Representatives only discovered that Mater was doing so when its communication to employees was forwarded through by delegates.

[160] Together ASU relied on Commissioner Roe’s findings in National Union of Workers v Ross Cosmetics Australia (B2012/671) that it is not consistent with good faith bargaining and undermines collective bargaining or freedom of association to,

“unilaterally proceed to advise employees that there will be a vote of employees without allowing bargaining representatives the opportunity to seek instructions from those whom they represent as to whether there should be a changed employee position in response and without the employer considering and changed response prior to proceeding to such a vote…” 12.

[161] The Together ASU submit that the Mater has said it has put the vote out because of COVID-19, however that was what the ASU Branch Secretary wrote to Dr Steer about on 16 March. There was no response to the Union and no opportunity for the unions to consider the changed circumstances and instead the Mater decided to go to vote itself.

[162] Together ASU also made reference to the decision of the Full Bench in Transport Workers’ Union of Australia v Transit (NSW) Services Pty Ltd t/as Transit System, 13where the Full Bench stated:

“Further, we do not consider that the Senior Deputy President erred in not finding that the conduct of the further ballot itself (that is, irrespective of its timing) amounted to a failure to meet the good faith bargaining requirements. There was no evidence that, at the time Transit announced that a further ballot would be conducted, there was any outstanding request by the TWU for further meetings or that the TWU had advanced any new proposals that required consideration. If it had been otherwise, then Transit’s almost immediate recourse to a further ballot may have made available the conclusion that the good faith bargaining requirements had not been met. However, the evidence to which we had access rather suggested that the negotiations were at an impasse. In that circumstance the conduct of a further ballot would not seem to us to be unfair conduct which undermined collective bargaining.” 14

[163] Together ASU submitted that this matter can be distinguished from the case considered by the Full Bench as there was a request for a further meeting by Together through written correspondence sent to Dr Steer to discuss the current COVID-19 pandemic. It is apparent from his evidence Mr Langford was aware of the letter from Mr Scott from 16 March. Together ASU submitted unlike the TWU v Transit matter the unions were still seeking to make proposals.

[164] The Mater submitted the case in relation to section 228(1)(e) should fail because the none of the conduct complained of by the Applicant is capricious or unfair conduct within the meaning of the FW Act. Mater says in order to contravene section 228(1)(e), it must be shown that Mater’s bargaining representatives have engaged in conduct which:

a. Is “capricious” or “unfair”; and

b. Undermines freedom of association or collective bargaining.

[165] The Mater says the terms “capricious” and “unfair” are not defined in the FW Act and therefore have their ordinary meaning, construed in light of relevant context and purpose. The Macquarie Dictionary defines:

a. “Capricious” as, relevantly, “subject to, led by, or indicative of caprice or whim”; and

b. “Unfair” as, relevantly, “not fair; biased or partial; not just or equitable; unjust” and “marked by deceptive dishonest practices”.

[166] The Mater referred to the explanatory memorandum to the Fair Work Bill 2008 (Cth) which states that conduct may be capricious or unfair conduct if an employer:

a. Fails to recognise a bargaining representative;

b. Does not permit an employee who is a bargaining representative to attend meetings or discuss matters relating to the terms of the proposed agreement with fellow employees;

c. Dismisses or engages in detrimental conduct towards an employee because the employee is a bargaining representative or is participating in bargaining; or

d. Prevents an employee from appointing his or her own representative.

[167] The Mater referred to Construction, Forestry, Mining and Energy Union – Mining and Energy Division v Tahmoor Coal Pty Ltd [2010] FWAFB 3510, where a Full Bench of Fair Work Australia (as the Commission then was) said at [30]:

“Although there may be circumstances in which the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements, it will not always be so. There is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot.”

[168] The Mater said in that case, the Full Bench found that the employer had not acted capriciously or unfairly in circumstances where, amongst other things, negotiations had reached a stalemate (or “impasse”) following numerous bargaining meetings and the employer put a draft agreement to vote without the agreement of the relevant union bargaining representatives.

[169] The Mater also referred to Health Services Union v Goodwin Aged Care Serviced Limited T/A Goodwin 15, where the Commission found that an employer did not engage in capricious or unfair conduct in circumstances where it held a second ballot without further bargaining with the relevant union, and without advising the bargaining representatives:

a. That it intended to proceed to a second ballot;

b. How that ballot would occur; and

c. Changes that the employer had made to the draft agreement.

[170] The Mater said importantly, the changes to the draft agreement were only minor and were, relevantly, to:

a. Increase salaries for particular employee classifications as a result of a recent national wage increase decision;

b. Correct typographical errors; and

c. Clarify the intended operation of pay increments for employees with qualifications.

[171] The Mater submitted that consistent with these decisions, it has been said that it is not necessarily a breach of good faith bargaining:

a. For an employer to put a proposed agreement to a ballot of employees without the agreement of the other bargaining representatives

b. For an employer to decide when a bargaining impasse is reached and to then put a proposed agreement to a ballot of employees;

c. For a bargaining representative to decide that an impasse has been reached after only a limited number of meetings;

d. For a bargaining representative to forcefully put its account of the bargaining issues to employees for their information or attempt to persuade employees to support a proposed employee; or

e. For voting for an agreement to be conducted by the employer and in a manner chosen by the employer.

[172] The Mater said by contrast, in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Contact Electrical Pty Ltd, 16 the employer’s conduct was capricious or unfair in circumstances where it failed to advise the relevant union of its intention to cease bargaining, made further unadvised amendments to the proposed agreement and put the agreement to a vote without notice to the union. It said that importantly in that case, there was evidence that the agreement put to vote contained at least two major changes to the employer’s position since the last bargaining meeting held.

[173] The Mater said there is nothing capricious or unfair in the conduct of its bargaining representatives in this case. This is not a case where a proposed agreement has been put to vote with new, major changes which were not disclosed to the other bargaining representatives. Rather, Mater has put to a vote an agreement which, even on Together ASU’s evidence, is not significantly different from the last version and in circumstances where bargaining is at a stalemate.

[174] The Mater submitted that the meeting of 12 March 2020 ended without resolution of any of the outstanding issues, which points heavily to a stalemate in negotiations. It said that Together ASU’s admission that the Mater sent “a new Offer to employees to vote on which has no significant changes” further supports the Mater’s position.

[175] The Mater submitted that even if the conduct of the Mater’s bargaining representatives could be said to be capricious or unfair, such conduct cannot be described as undermining freedom of association or collective bargaining, and to the contrary, the bargaining process has to date been robust and is characterised by each party exercising their rights, including through protected industrial action.

[176] In closing oral submissions, the Mater accepted that Ms Hornsby’s evidence at the hearing did not represent the Mater’s position on the correct interpretation of the classification scale. However, the Mater submitted that issues in connection with Ms Hornsby’s evidence can be dealt with by the bargaining representatives running a campaign as to reasons why employees should vote no, and that issue should not motivate the Commission to issue an order to stop the vote.

[177] The Mater submitted that the decision in National Union of Workers v Ross Cosmetics Australia was different to this case as this case only involved minor cosmetic changes, and the parties were quite clearly at a stalemate in negotiations. The Mater submitted the decision in Transport Workers’ Union of Australia v Transit (NSW) Services Pty Ltd t/as Transit System supported its case as the parties are at an impasse and no proposals were being made by the union.

[178] The Mater said there is no absolute requirement for the agreement of bargaining representatives prior to voting, and the evidence clearly supports that there were no material changes to the agreement.

[179] In reply, Together ASU submitted that the Mater’s case comes back to a claim that the parties were at a stalemate when there was no conversation about span of hours, contracting out, or the informal discussion between Ms Hornsby, Mr Wainwright and Mr Rishi in the foyer, and the evidence of the union witnesses was that they did not believe they were at stalemate.

[180] I have reached the following conclusions from the evidence. The workforce had in the month prior to the 12 March meeting, overwhelmingly rejected the Mater’s proposed agreement. A meeting was called by the Mater without an agenda. At the commencement of the meeting the Mater identified four key issues that it understood were the reason for the overwhelming rejection of the agreement and these four reasons are broadly accepted as the reason for the vote by all bargaining representatives. The Mater indicated it has room to move on two of those issues but not on the other two, and also made clear it had put its best offer and cannot increase the monetary value of its offer on an overall basis.

[181] Discussion and debate occurred at the 12 March meeting around the four issues in a context where there was no pre-arranged agenda. The discussion did not crystallise into new formal offers or counter offers at the meeting itself, which is unsurprising given there was no agenda for discussion and parties did not arrive at the meeting with new positions. It must be remembered this was the first meeting after a contested ballot process. It seems reasonably clear that the union bargaining representatives left the meeting on the basis that the Mater was open to further proposals in relation to at least some of the areas of controversy. The evidence supports a conclusion this was the case for the contracting clause as I am satisfied on the basis of the uncontested evidence of Ms May that Mr Langford indicated he would receive a reworded proposal on that issue.

[182] It would also appear Mr Langford invited further discussion and proposals on wages and the span of hours issue however because the discussions were not fruitful at the meeting and toward the end the meeting became acrimonious he adopted a view that the parties were at impasse on all issues. However, the evidence does not support the conclusion the parties were at impasse on the span of hours issue. It appears from the evidence Mr Langford indicated there was room to move on the issue however it was not discussed again in any detail.

[183] The evidence was clear that there was no suggestion that the meeting was intended to be the last meeting, or that the Mater stated to the parties that it maintained they were at impasse, or that it would not accept further proposals, or that it intended to put the proposed agreement out for another vote. In the circumstances it was reasonable for the unions to believe that they had time to confer and put further proposals on all the issues identified by the Mater, and most certainly with regard to contracting, span of hours and the two-tiered classification structure.

[184] The evidence leads to the reasonable conclusion that the unions intended to submit reformulated proposals regarding contracting, span of hours, and given the evidence of Mr Wainwright and Mr Rishi, most likely the two-tiered wage structure as well. The correspondence from the Together ASU Union Secretary well before the commencement of the access period was another indication the discussions were not yet at impasse. Unions as collective organisations answerable to their membership confer with members in formulating proposals. By convening a meeting with no agenda and determining for itself that the parties were at impasse despite the evidence suggesting otherwise, the Mater has denied the unions an opportunity confer with membership and put the new proposals before seeking another vote on essentially the same document previously rejected.

[185] I am also concerned about the Mater’s approach to the discussions that occurred after the meeting on 12 March between Ms Hornsby and Mr Wainwright and Mr Rishi for a number of reasons. I am satisfied on the basis of Mr Wainwright and Mr Rishi’s evidence that the discussion was intended to be an informal discussion, and it was made clear to Ms Hornsby that they would need to confer with their colleagues further about what had been discussed, before it was to be taken as a formal proposal. Their evidence on this point was unchallenged.

[186] I am also concerned that on Ms Hornsby’s evidence she then represented to other Mater representatives that on the basis of her discussions with Mr Wainwright and Mr Rishi there was reason to believe that the proposed agreement could be supported if the proposed agreement was amended to incorporate what flowed from her discussions with Mr Wainwright and Mr Rishi.

[187] This evidence presents several difficulties for the Mater. Firstly, Mr Wainwright and Mr Rishi made plain to Ms Hornsby they were not yet speaking on behalf of the other employee bargaining representatives or even the employees they represented directly and were canvasing an idea for further discussion.

[188] Secondly, it is clear on the basis of the evidence that Ms Hornsby either misunderstood the nature of the informal proposal that Mr Wainwright and Mr Rishi had raised, or alternatively did in fact understand it but failed to explain to the other Mater management representatives what Mr Wainwright and Mr Rishi were proposing. I form this view because the evidence of Mr Langford and the submissions of the Mater were clear that the amended proposed agreement to go to the second ballot was being put on the basis that it was essentially unchanged, and the nature of the changes to schedule 1 were intended to be more cosmetic or to minimise confusion and not intended to increase the cost of the offer to the Mater.

[189] However, the informal proposal raised by Mr Wainwright and Mr Rishi would have significant wage cost differences to the first offer voted down. Further, on the basis of Ms Hornsby’s evidence that existing employees would remain in column A of the pay scales for the entirety of their employment, even if promoted to a higher level, Ms Hornsby’s interpretation of the amended proposed agreement would necessarily involve higher wage costs compared to the first proposed agreement voted down. Ms Hornsby’s evidence was confusing in the sense it was not clear whether she understood that herself.

[190] It appears the Mater then proceeded to adopt amendments to the proposed agreement flowing from this informal discussion (which they had differing interpretations of internally) without reverting to the bargaining group where these issues would have been cleared up. Instead, a proposed agreement was to be put to employees in circumstances where the General Manager of Mater Pathology who also sat on the bargaining committee had a different and more generous interpretation of the proposed agreement than the Mater itself.

[191] It seems apparent that at least in part, the decision to proceed to vote was based on a misunderstanding which can be attributed to the fact that the Mater had not sought clarity from employee bargaining representatives, as part the appropriate collective bargaining process, about their understanding of an informal discussion prior to making changes based on those misunderstandings, and then seeking to put the proposed agreement to a ballot. I am satisfied this conduct was unfair because on the evidence Ms Hornsby had agreed with Mr Wainwright and Mr Rishi there would be further discussions, and for the very reasons given by Mr Wainwright and Mr Rishi that they wanted the discussion to proceed in the collective bargaining process and not informally. This did not occur, and this also undermined collective bargaining.

[192] The evidence tends to indicate that the decision to go to ballot was a “a sudden and unaccountable change of mood or behaviour” as described by Commissioner Deegan in CEPU v Contact Electrical Pty Ltd. 17 Whilst the Mater submits the decision was motivated by its view negotiations were at impasse, as I have already found, that does not sit easily with the evidence overall. Whilst it is true the meeting on 12 March ended abruptly, the evidence suggests that was as much a product of objection taken to the behaviour of one of the union representatives present at the meeting as much as anything else.

[193] There is a reasonable basis to infer from the evidence that the decision to go to ballot was motivated by a combination of factors and not only the erroneous perception that bargaining was at an impasse. Those other reasons included the Mater’s view based on Ms Hornsby’s informal discussions with Mr Wainwright and Mr Rishi that by adopting an idea from their informal discussion the proposed agreement may now be voted up. Another reason was the onset of the coronavirus pandemic which presumably it was thought may lead some employees to vote yes for a proposal they had only recently rejected. Finally, as stated by the Mater, two unions were engaging in forms of industrial action.

[194] I do not accept that these issues are a proper basis for the sudden change in direction by the Mater that undermined the bargaining process. The conclusion in National Union of Workers v Ross Cosmetics Australia 18is also relevant here in that the evidence supports the conclusion that the unions were in the process of preparing further proposals at the time. The Mater decided to go to vote without telling the unions, and several approaches had also been made to hold discussions about the bargaining position in the context of the coronavirus.

[195] I am of the view that this case can be distinguished from Goodwin, for the following reasons.

[196] Firstly, I am of the view that negotiations had not reached an impasse. Unlike the situation in Goodwin, the unions were not simply seeking to re-agitate matters that had already been dealt with extensively in bargaining, they were discussing the key reasons for the No vote, and at the conclusion of the meeting on 12 March, the evidence suggests that there were still matters open for discussion.

[197] In Tahmoor one of the formulations that the Full Bench used in considering whether negotiations had reached a stage that the employer was entitled to put it to a vote, is to ask the question whether there had been a reasonable opportunity to discuss the employer’s latest proposal, or to ask whether negotiations had reached such a stage that the employer was entitled to put its proposal to a ballot in order to see if progress could be made. In this case the evidence points against the fact that negotiations were at that stage, given what was still open at the conclusion of the meeting on 12 March.

[198] I am also of the view that the case is distinguishable from Goodwin, as here the proposed agreement was overwhelmingly rejected in the first vote as opposed to Goodwin where the result was 50/50. In this matter, it was not simply the case that a few minor improvements were made to a proposed agreement that had almost been voted up.

[199] It is also important to note that in this case, the changes to the proposed to the agreement by the employer were made as a result of informal conversations in the foyer between Ms Hornsby and union delegates. I accept the evidence of Mr Wainwright and Mr Rishi that they were under the impression that the points they raised at that time would be explored further at another time. The fact that this information was used, under the belief that it could get the proposed agreement over the line, was unfair and undermines the principles of collective bargaining.

[200] I am satisfied that the Mater’s decision to proceed to ballot without affording the unions an opportunity to put further proposals in all of the circumstances is capricious or unfair conduct that undermines collective bargaining in all of the particular circumstances of this case.

Reasonable in all the circumstances

[201] The Mater submitted that the Commission should not be satisfied that the making of a bargaining order is reasonable in all the circumstances having regard to the orders sought by the Applicant. The Mater submitted that the parties are at an impasse and have exercised their rights throughout the bargaining process; and there are no exceptional circumstances to justify the orders sought.

[202] The Mater submitted that making the orders sought in these circumstances would be an unreasonable intrusion by the Commission in the bargaining process. The Mater submitted that the reasonableness of making a bargaining order (and the facts of this case) should also be assessed in light of the COVID-19 pandemic, which has materially changed the circumstances, both globally and as they affect the Mater. The Mater said in these challenging circumstances, it is in the best interests of all parties that the workforce decide whether or not the Proposed Agreement should be approved, with or without union support, and it would be unreasonable for the Commission to interfere.

[203] I accept that the coronavirus pandemic will be causing stress and anxiety in the workplace. The proposed agreement includes significant and most likely long lasting changes to the classifications structure and pay scales for existing and new employees. The workforce overwhelming rejected the same proposal recently. A number of union witnesses complained in the strongest terms that the Mater was seeking to re-ballot the same proposed agreement so soon after it was overwhelming rejected, and against the wishes of the employees’ representatives. An equally strong case can be made for not determining such issues in the midst of the pandemic crisis. I am not persuaded by the Mater’s submission on this point.

[204] I have also already rejected the argument that the parties are at impasse, and am satisfied it is reasonable in all of the circumstances to make bargaining orders.

Form of Orders

[205] The bargaining orders had been made so as not to place onerous requirements on the parties given the coronavirus epidemic. It requires that the second ballot be delayed for at least 21 days. Whilst it requires a minimum of two further meetings, there is only a requirement for one meeting in the next two-week period and that is to be conducted by telephone for the purpose of social distancing.

[206] Further, the 21-day period is expressed as a minimum. If the Mater decides or alternatively the parties agree they do not wish to have a second meeting within the 21-day period, the order does not require that to happen.

[207] I also advise the parties that if circumstances in connection with the coronavirus are such that there are safety or other concerns arising from the requirement to comply with the order to conduct a telephone meeting within the 14 day time period, the parties are at liberty to seek a variation to the order to address those concerns. However, the order is intended to require there be a minimum of two further telephone meetings, whenever they occur, before another ballot.

Observation regarding s.180(5)

[208] There is a separate and unrelated issue not directly relevant to the merits of this matter, but worth commenting on for reasons that may have become relevant at a later point had this application failed. Ms Hornsby as General Manager of Pathology and a member of the bargaining group interpreted one of the most controversial clauses in the proposed agreement in a way that is at odds with, and more generous than, the Mater’s interpretation as at the date of the hearing.

[209] The hearing coincided with the second last day of the seven-day access period. If it were to be the case that Ms Hornsby had explained the proposed agreement during the access period to employees in the same manner that she had explained it to the Commission, or if anyone else did so, then that would potentially give rise to issues as to whether such an agreement could be approved given the requirements to satisfy section 180(5).

[210] In closing, the Commission will make itself available to the parties at short notice to resolve the issues between the parties should they seek the assistance of the Commission.

COMMISSIONER

Appearances:

Mr M. Thomas appearing on behalf of the Applicant
Mr D. Peverill appearing on behalf of the United Workers Union
Mr G. Sottile appearing on behalf of the Association of Professional Engineers Scientists and Managers Australia
Mr N. Le Mare of Corrs Chambers Westgarth appearing for Mater Misericordiae Limited

Hearing details:

2020,
Brisbane:
March 30

Printed by authority of the Commonwealth Government Printer

<PR718045>

 1   Exhibit 2.

 2   Exhibit 5.

 3   Exhibit 1.

 4   Exhibit 3.

 5   Exhibit 4.

 6   Exhibit 6.

 7   Exhibit 1.

 8   Exhibit 2.

 9   [2015] FWCFB 1451.

 10   [2012] FWA 8137

 11 Ibid at [48].

 12   National Union of Workers v Ross Cosmetics Australia (B2012/671) at [50].

 13   [2016] FWCFB 997

 14 Ibid, at [18].

 15   [2016] FWC 4411

 16   [2012] FWA 8137.

 17   [2012] FWA 8137.

 18   [2012] FWA 3252.