Australian Municipal, Administrative, Clerical and Services Union v City of Perth
[2011] FWA 2897
•2 JUNE 2011
[2011] FWA 2897 |
|
DECISION |
Fair Work Act 2009
s.238 - Application for a scope order
Australian Municipal, Administrative, Clerical and Services Union
v
City of Perth
(B2011/2791)
COMMISSIONER CLOGHAN | PERTH, 2 JUNE 2011 |
Application for a scope order.
[1] This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a scope order pursuant to s.238 of the Fair Work Act 2009 (the FW Act).
[2] The application for a scope order relates to bargaining for a proposed single-enterprise agreement to replace the City of Perth Salaried Officers Agreement 2007 - 2010, which I will refer to as the Proposed Replacement Agreement.
[3] The ASU is a bargaining representative for the Proposed Replacement Agreement.
[4] The respondent employer is the City of Perth.
[5] The application was made on 18 April 2011 and a hearing into the application was conducted on 3 May 2011. Both parties agreed that conciliation on the scope of the Proposed Replacement Agreement had been exhausted and requested that the matter go direct to a hearing.
[6] At the hearing, Ms Butler, Industrial Officer, ASU made submissions in support of the application.
[7] The City of Perth was represented by Mr Bibby, Senior Labour Relations Consultant, Western Australian Chamber of Commerce and Industry and evidence was given by Ms Heerey, Manager, Human Resources, City of Perth.
RELEVANT BACKGROUND FACTS
[8] The current enterprise agreement is the City of Perth Salaried Officers Agreement 2007 - 2010 (“the 2007 Agreement”). The 2007 Agreement covers all salaried officers except the Chief Executive (CEO) and Directors.
[9] The nominal expiry date of the 2007 Agreement is three years from the date of lodgement.
[10] From 1996 to 2004, there was one agreement covering all salaried officers with the exception of C-C-TV (CCTV) operators who had a separate agreement from 1999 to 2004 before returning to a comprehensive agreement. The inclusion of the CCTV operators was by agreement between the ASU and the City of Perth.
[11] In addition to the ASU and the Employer’s representative, there are 11 other bargaining representatives. One of the 11 other bargaining representatives is the Association of Professional Engineers, Scientists and Managers, Australia, WA branch (APESMA).
[12] The first bargaining meeting occurred on 25 October 2010. Since that date, there have been seven (7) further meetings.
[13] On 11 April 2011, in accordance with s238(3) of the FW Act, the ASU gave written notice to the City of Perth and the other bargaining representatives, setting out its concerns “that bargaining for the agreement is not proceeding efficiently or fairly” and that “the reason for this is that the proposed replacement agreement will cover employees that it is not appropriate for the agreement to cover”.
[14] The City of Perth responded to these concerns on 12 April 2011 and on 19 April 2011.
[15] APESMA and one other bargaining representative support the ASU’s application for a scope order.
FORM OF SCOPE ORDER SOUGHT BY ASU
[16] The ASU is seeking that the Proposed Replacement Agreement be divided into two with one agreement covering Monday to Friday salaried officers. The second agreement would cover salaried officers who are required to work in a position which has a span of hours between Monday to Sunday 5am to 10pm.
RELEVANT STATUTORY PROVISIONS
[17] Section 238 of the FW Act provides:
238 Scope orders
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order) under this section if:
(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.
…
Bargaining representative must have given notice of concerns
(3) The bargaining representative may only apply for the scope order if the bargaining representative:
(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.
When FWA may make scope order
(4) FWA may make the scope order if FWA is satisfied:
(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
(b) that making the order will promote the fair and efficient conduct of bargaining; and
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(d) it is reasonable in all the circumstances to make the order.
Matters which FWA must take into account
(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Scope order must specify employer and employees to be covered
(5) The scope order must specify, in relation to a proposed single-enterprise agreement:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
Scope order must be in accordance with this section etc.
(6) The scope order:
(a) must be in accordance with this section; and
(b) may relate to more than one proposed single-enterprise agreement.
Orders etc. that FWA may make
(7) If FWA makes the scope order, FWA may also:
(a) amend any existing bargaining orders; and
(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by FWA, or take such other actions, as FWA considers appropriate.
ASU SUBMISSIONS
[18] The ASU submits that negotiations for the Proposed Replacement Agreement have been continuing for some time, and because the City of Perth wishes “to make significant changes to the span of hours clause and changes in how penalties are to be paid” 1, agreement is unable to be reached on a “base document”2.
[19] Further, the current scope of the Proposed Replacement Agreement insisted upon by the City of Perth has caused and will cause bargaining not to proceed efficiently and fairly.
[20] To overcome bargaining not proceeding efficiently and fairly, the ASU have suggested negotiations on two separate agreements.
[21] The ASU submit that approximately 80 - 100 employees of the approximate 480 employees to be covered by the Proposed Replacement Agreement are subject to the allegedly significant changes in the span of hours and penalties sought by the City of Perth.
[22] As a result of the ratio imbalance between Monday to Friday (majority) and Monday to Sunday (minority) employees, the majority of salaried officers will face “significant delays” 3 in reaching agreement with the Employer.
[23] The ASU submit that insistence of the City of Perth to retain coverage of all salaried staff could lead to protected employee claim action (industrial action) by a majority of employees in support of a minority of employees.
[24] The ASU have informed the Tribunal that its City of Perth members have resolved that “no member will vote in favour of an agreement which changes the conditions of one group of employees unless those employees agree to that change” 4.
[25] The ASU acknowledge that the City of Perth have proposed to “grandfather” the current conditions contained in the existing enterprise agreement. However, the “grandfather” clause will only apply to existing employees in their current positions and will not apply to existing employees who transfer or are promoted into another position 5. And importantly, “our members have a very firm position which is that they should not then be working - two people working side by side ... and that there be two separate sets of working arrangements for those employees doing the same job”6.
[26] Finally, the ASU submitted a number of documents detailing, for a number of occupational groups, the financial detriment cause by the City of Perth’s proposed changes to the span of hours and penalty provisions.
[27] Finally, and it was uncontested, the ASU has met and is meeting the good faith bargaining requirements of the FW Act.
CITY OF PERTH CASE
[28] The City of Perth submit that for the past 14 years, there has been one agreement covering salaried officers who work Monday to Friday and those who work in positions Monday to Sunday and “to date, it hasn’t been a problem for the union” 7.
[29] Secondly, one of the principal aims for the City of Perth in the current negotiations is to “standardise” conditions whereby work performed on a particular day or time attracts the same penalty provisions for all employees - this was described as all employees having equitable conditions 8.
[30] Notwithstanding the City of Perth’s principal aim of standardisation for all employees, it has “grandfathered” the current conditions for existing employees 9.
[31] With respect to the bargaining process, the City of Perth submit that the splitting of bargaining into two separate agreements will duplicate negotiation meetings, voting and “back of house” arrangements such as payroll 10.
[32] Further, in relation to the bargaining process, the City of Perth submit that this application is as a result of a minority of employees being dissatisfied with the City of Perth’s position relating to their conditions, whereas, in their judgment, the ASU should take a majority view of the entire workforce 11.
[33] Some, but not all, proposals by the City of Perth reflect the expectations and needs of their stakeholders. Accordingly, the City’s operations will need to respond to these changing requirements 12.
[34] Finally, this round of bargaining is an opportunity to remove what the City of Perth described as inequities 13.
[35] The City of Perth are of the view that it has put a “generous offer ... on the table” to achieve the changes proposed. Should the current agreement be split into two components, the City would have to review whether that “generous offer” remains if the current agreement is split into two components 14.
CONSIDERATION AND CONCLUSION
[36] The fundamental facts of this application are that there has been a single agreement for the past 14 years which has regulated the conditions of employment for those employees who work regularly Monday to Friday and for employees who also work on any seven (7) days of the week. Such an arrangement is not uncommon in both awards and agreements.
[37] The City of Perth’s assertion that, to date, there has not been a problem with such an arrangement, was uncontested.
[38] Bargaining meetings commenced on 25 October 2010 and at the time of the application, there had been seven (7) meetings of the Bargaining Group.
[39] The City of Perth provides a one hour paid meeting for the ASU negotiating committee prior to Bargaining Group meetings, ASU representatives are paid when attending Bargaining Group meetings and paid feedback meetings to ASU members have been agreed to by the City.
[40] It was uncontested that the City of Perth had made concessions to its original proposals for incorporation into the Proposed Replacement Agreement.
[41] In summary, there was evidence to conclude that the City of Perth was bargaining in good faith. No submission from the ASU was made to contradict evidence that the Employer was bargaining in good faith.
[42] The ASU asserts that bargaining for the Proposed Replacement Agreement is not proceeding efficiently or fairly because “to include 7 day a week positions in the proposed agreement will lead to protracted and lengthy negotiations which will have the potential to disadvantage the majority of employees who will be covered by the agreement. This will not promote fair and efficient bargaining” 15.
[43] However, the documentary evidence provided by the ASU (there was no oral evidence) casts doubt on the reason why bargaining may be protracted and lengthy. This evidence is contained in the ASU’s letter to the City which states:
“Thank you for your letters dated 12th and 13th April respectively regarding the City of Perth’s log of claims which has become commonly known as BR01.
As you are aware the position of ASU members has been and remains that negotiations for the proposed City of Perth Salaried Officers Agreement 2011 should be from the existing and current City of Perth Salaried Officers Agreement 2007 and all of its appendices and addendums. As we have expressed at a number of negotiation meetings, our members objection to using BR01 as a base for negotiations is that this means our members would be negotiating out the proposed changes put forward by management as opposed to management having to negotiate in any changes they wish to make.
On the 14th December 2010 we presented the City with a list of comments and concerns with the City of Perth’s log of claims. The list contained a number of issues our members had with some of the clauses in BR01 including the desire for the City to change the way the penalties are paid for a number of roles, changes to Span of Hours, the proposed wording of the Individual Flexible Agreement clause and many other points.
Another major concern of our members with BR01 is the proposed grandfathering clauses for penalties for some positions. Our members have on more than one occasion unanimously rejected any notion of two employees, performing the same duties and receiving, at times, dramatically different rates of pay. Our members believe this is completely unfair and will most likely lead to disputes in the work place in the future.” 16
[44] The ASU letter goes on to set out further specific concerns relating to Span of Hours; Penalties; Individual Flexibility Arrangements; Reclassification - Date of Effect and Redundancy.
[45] The correspondence concludes:
“... Whilst we acknowledge that the City has every right to not accept any claim from the ASU, the same applies to our members regarding the City’s claim. This is part of the negotiating process.”
“Our members have always expressed a desire to continue negotiations and are of course seeking a speedy resolution to the current negotiations. However they will not do this to the detriment of existing and future members.”
“At two recent meetings of our members it was unanimously agreed that ASU members would not accept any agreement which disadvantaged any group of employees.”
“Throughout the course of these negotiations, we believe we have been clear regarding our objections to negotiating from BR01 [the City of Perth negotiating document which includes its claims] and the reason for the objection. This was reiterated at the last mass meeting of ASU members and that the membership reaffirmed that we should only negotiate from the current City of Perth Salaried Officers Agreement 2007.”
[46] Put shortly, the reasons as stated by the ASU for protracted and lengthy negotiations are that:
- The City of Perth contend that negotiations ought to be based on BR01 which contains its proposed changes to the 2007 Agreement;
- The ASU assert that negotiation should be based on the 2007 Agreement and that the City of Perth should make out its case for any changes to that document to the Union;
- The ASU has unanimously resolved against any proposal regarding the “grandfathering” of conditions; and
- The ASU’s position is that it will not accept any agreement which disadvantages any group of employees.
[47] My purpose in setting out the above in detail is to illustrate whether the proposition put by the ASU, that the Proposed Replacement Agreement will cover inappropriate employees, is valid.
[48] In the hearing, the ASU stated in its submission:
“The reason for our members seeking a scope order are that they believe the six day a week workers and the seven day a week workers will be substantially worse off in terms of the agreement being offered by the City.” 17
[49] For this reason, the ASU submit that the current scope of the Proposed Replacement Agreement which includes all employees, including those who can be rostered to work over six or seven days, “is preventing efficient and fair bargaining and ... [covers employees that] it is not appropriate for the agreement to cover as per section 238(1) of the Fair Work Act” 18
[50] The scheme of the FW Act relating to single enterprise agreements is premised on single interest employers and a group of employees (s.172(2) of the FW Act). Where there is a dispute about the group of employees, the Tribunal has the power to make a scope order.
[51] Pursuant to s.186(3) of the FW Act, I must be satisfied that the group of employees to be covered by the Proposed Replacement Agreement was fairly chosen. With the exception of a brief period between 1999 and 2004, the group of employees have been covered by a single agreement since 1996.
[52] No direct evidence was put to the Tribunal with respect to whether the occupational groups described in the application to be excluded from the current and proposed scope are geographically, operationally or organisationally distinct. While it may be inferred that they are operationally distinct in that they can be rostered over six or seven days of the week, that situation has existed since 1996 with the exception I have referred to above.
[53] Part 2-4, Division 8 of the FW Act sets out the Tribunal’s general role in facilitating bargaining.
[54] As a guide to the intent of the general role, the following paragraph from the Explanatory Memorandum is set out:
“946. It is anticipated that most bargaining representatives will bargain voluntarily and cooperatively without the need for assistance or intervention from FWA. In the occasional cases where this is not occurring, the Bill provides mechanisms for FWA to facilitate bargaining and, where necessary, make orders to ensure the integrity of the bargaining process.”
[55] As it is pertinent to this application, I also set out the provisions of s.228(2)(a) and (b) of the FW Act as follows:
“228 Bargaining representatives must meet the good faith bargaining requirements
…
(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.”
[56] Further and finally, the Tribunal, pursuant to s.255 of the FW Act is prohibited from making an order requiring any particular term to be included or excluded in a proposed enterprise agreement.
[57] The scheme of the FW Act, in my view, is to provide the Tribunal with powers which focus on facilitating the bargaining process and not for these powers to be used when the ASU apprehends that part of the workforce to be covered by the Proposed Replacement Agreement will allegedly be “substantially worse off” on the terms being offered by the City of Perth at the time the application was made.
[58] Where agreement between the parties cannot be reached, the ASU, if the FW Act requirements are met, can take protected industrial action.
[59] In my view, it would be inconsistent with the scheme of the FW Act to shave off a section of employees into a separate agreement each and every time the bargaining representatives could not reach agreement on the content of a proposed replacement agreement for those particular employees. The inability to reach agreement in negotiation is not unusual but that does not mean that bargaining is not proceeding efficiently and fairly.
[60] I am not satisfied that I can conclude bargaining is proceeding inefficiently or unfairly due to the scope of the Proposed Replacement Agreement. The scope arrangements for the past 14 years have included positions which need to be filled by employees on 6 or 7 days a week positions. Further, the communication from ASU to the Employer which I have referred to above in paragraph [43] to [45] illustrates that it is the content and respective positions of the parties that is the issue and not the bargaining process.
[61] In summary, for the Tribunal to make the order requested in the application, I need to be satisfied that the ASU is meeting the good faith bargaining requirements. I am so satisfied.
[62] I also have to be satisfied that the making of the order will promote fair and efficient conduct of bargaining. I am not satisfied that this is the case.
[63] Finally, I am satisfied that, particularly in view of the history of the scope agreements covering these employees, the scope was fairly chosen.
CONCLUSION TO APPLICATION
[64] For the above reasons, I am not satisfied that the requirements of s.238(1) and (4) of the FW Act have been met to make the order requested by the application. Accordingly, the application will be dismissed.
COMMISSIONER
Appearances:
Ms D Butler for the Applicant
Mr S Bibby for the Respondent
Hearing details:
2011
Perth
May 3
1 PN7
2 Application
3 PN90
4 PN8
5 PN9
6 PN269
7 PN107
8 PN108
9 Ibid
10 Exhibit R1
11 Ibid
12 Exhibit R1
13 Ibid
14 PN165
15 Particulars of Application
16 Exhibit A7
17 PN6
18 PN96
Printed by authority of the Commonwealth Government Printer
<Price code C, PR509486>
1
0
0