Australian Municipal, Administrative, Clerical and Services Union v Aero-Care Flight Support Pty Ltd

[2012] FWA 7214

[2012] FWA 7214

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Australian Municipal, Administrative, Clerical and Services Union
v
Aero-Care Flight Support Pty Ltd
(B2012/166)

VICE PRESIDENT WATSON SYDNEY, 22 AUGUST 2012

Application for a bargaining order - good faith bargaining requirements - whether information confidential or commercially sensitive information - provision of employee rosters - Fair Work Act 2009 ss 228, 229, 230.

Introduction

[1] This decision, edited from a decision on transcript on 14 August 2012, concerns an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) supported by the Transport Workers’ Union of Australia (TWU) for a bargaining order pursuant to s.229 of the Fair Work Act 2009 (the Act). The orders are sought against Aero-Care Flight Support Pty Ltd (Aero-Care).

The relevant legislation

[2] Section 228 of the Act sets out the good faith bargaining requirements:

“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:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(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;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

[3] Section 229 of the Act provides:

“229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.

Multi-enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

(5) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.”

[4] Section 230 of the Act provides:

“230 When FWA may make a bargaining order

Bargaining orders

(1) FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

(2) FWA must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(c) a scope order in relation to the agreement is in operation;

(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

(3) FWA must in all cases be satisfied:

(a) that:

(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”

Background

[5] This matter was commenced in June 2012 and has been the subject of various proceedings, culminating in the leading of evidence and the making of submissions at the hearing on 14 August 2012. Parallel to that process, there has been negotiations occurring aimed at negotiating an enterprise agreement to apply to Aero-Care operations. The history of the matter includes a previous agreement reached with a majority of employees in late 2011, and was subject to proceedings before Deputy President Sams. On 24 April 2012, the Deputy President issued a decision refusing to approve the enterprise agreement in accordance with the provisions of the Act. 1

[6] In this matter a range of documentary material was sought initially by the ASU and subsequently supported by the TWU. Arising from discussions with Aero-Care, various information has been provided in accordance with those requests. There is one matter however that is outstanding and that concerns the provision of rosters of employees or indicative rosters of employees. The request for information has been put in correspondence from the ASU and put in slightly different terms by the TWU by reference to particular dates.

Position of the parties

[7] The ASU and the TWU rely on the provisions of s.228 of the Act and submit that the information they seek is relevant information, and that Aero-Care is in breach of its obligations by not disclosing that information in a timely manner. Aero-Care objects strenuously to the provision of the information on various grounds, and submits that the information does not currently exist in a form that is sought by the ASU and TWU, documents would need to be created and that the information is of a confidential and commercially sensitive nature and is therefore exempt from the obligation in s.228 of the Act.

[8] Aero-Care also submits that the information as to the past rosters is not necessarily indicative of the rosters or working patterns that would be worked under the proposed agreement that is being negotiated.

Conclusions

[9] I have a number of concerns about the information that is sought because of the concerns expressed by Aero-Care. I am also concerned that to an extent, the ASU and TWU should have been able to obtain information from their members as to their working patterns, such as to make assessments as to their claims in relation to the negotiations. It also appears to me that the information that is sought is more related to the better off overall test that may ultimately need to be satisfied if an agreement is made under the Act, rather than claims that are made by the unions in bargaining.

[10] Nevertheless I think that the conduct of the negotiations would be assisted and that the relevant case has been made out for the making of an order for the provision of certain information by Aero-Care to the unions concerned. The information that I consider that is appropriate to be provided is of a limited nature. It would be information as to the number of hours and the timing of working of hours proposed to be worked by employees to be covered by the proposed agreement, being the latest agreement proposed by Aero-Care to the bargaining representatives, in accordance with its work rosters, together with a comparison of the payments to be made under the proposed agreement for those hours and the payments that would have to be made if those hours were worked and the Airline Operations - Ground Staff Award 2010 2 applied in lieu of the proposed agreement.

[11] I propose to require that information to be in accordance with the information Aero-Care intends to provide to Fair Work Australia to establish that its proposed agreement passes the better off overall test. I emphasise that the requirement is not a requirement to produce rosters as such, but it is intended to be a requirement consistent with the information Aero-Care intends to provide ultimately to the Tribunal, that will enable the Tribunal to make an assessment that the better off overall test is satisfied.

[12] If that information is regarded by Aero-Care as confidential, then I would require the ASU and the TWU to provide a confidentiality undertaking in line with the undertakings they have indicated they would provide to the Tribunal. I would also propose that the information, unless otherwise agreed by Aero-Care, would be provided to the Tribunal and would be available only for inspection at the premises of the Tribunal. I consider that it is also appropriate that on provision of that information the ASU and the TWU would have the ability to ask questions of clarification in relation to that material, and that the company should provide a response to any such questions within seven days of receiving those requests.

[13] As I have indicated, I propose to make such an order with a view to balancing the difficult questions that arise from the submissions in this matter. I also consider it appropriate that I would provide the parties with liberty to apply for revision of the orders, or to make any further requests, or raise any particular difficulties that arise from the provision of that information and the operation of the orders. In doing so I do not express any view as to what further orders may be sought or propose any limitation on what might ultimately be sought if particular difficulties arise through the process that I have proposed.

[14] The orders outlined above are issued with this decision. 3

VICE PRESIDENT WATSON

Appearances:

J. Cooney for the Australian Municipal, Administrative, Clerical and Services Union

M. Burns for the Transport Workers’ Union of Australia

D. Houlihan for Aero-Care Flight Support Pty Ltd

Hearing details:

2012.
Melbourne.
14 August.

 1   [2012] FWA 3227.

 2   MA000048

 3   PR528231.

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