Australian Municipal, Administrative, Clerical and Services Union v NCR Australia Pty Limited

[2010] FWA 6257

[2010] FWA 6257

FAIR WORK AUSTRALIA

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
NCR Australia Pty Limited
(B2010/3243)

COMMISSIONER CAMBRIDGE SYDNEY, 16 AUGUST 2010

Proposed bargaining Order by the Australian Municipal, Administrative, Clerical and Services Union (the ASU).

[1] On 22 July 2010 the Australian Municipal, Administrative, Clerical and Services Union (ASU) made an application for a bargaining Order. The application was made pursuant to section 229 of the Fair Work Act 2009 (the Act). The application named as respondent NCR Australia Pty Limited (NCR).

[2] The matter was listed for Conference before Fair Work Australia (FWA) on 29 July 2010, at which time Ms J Justo and Mr K Harvey appeared for the ASU and Ms Hurley-Smith and Ms K Kucelj appeared for NCR. The Parties provided verbal submissions during the Conference held on 29 July. Subsequently the Parties have filed documentary material in support of their respective positions, the final material was filed on 13 August 2010.

[3] In brief the ASU has sought bargaining Orders to require NCR to meet with the ASU and other bargaining representatives to discuss a proposed national enterprise agreement to cover employees of NCR referred to as Customer Engineers. The Orders sought by the ASU also sought to direct NCR to not take any action which would constitute capricious or unfair conduct that undermined freedom of association or collective bargaining.

[4] NCR has opposed the application and has submitted that negotiations for an enterprise agreement have reached a stalemate “in circumstances where there were unsurmountable [sic] problems” 1. In these circumstances NCR has submitted that the appropriate remedy for the ASU is not in the form of the bargaining Orders sought. Instead NCR has submitted that the appropriate remedy for the ASU is “... through industrial action”2.

[5] The background that precedes the current difficulties relevantly commenced in late 2008 when NCR initiated discussions with its employees and inter alia, the ASU, aimed at making a national enterprise agreement to replace the NCR ASU Enterprise Agreement 2006 [no. 063770], which expired on 21 April 2009. On 23 March 2009 a ballot of NCR employees voted 82 to 8 against a proposed new enterprise agreement.

[6] Negotiations concerning a new enterprise agreement ceased for a period of approximately one year. On 23 March 2010 NCR issued a Notice of Employee Representational Rights as required by section 173 of the Act. The restarted enterprise agreement negotiations culminated in a meeting between NCR, the ASU and other bargaining representatives on 15 April 2010. This meeting was broadly unsuccessful and no agreed terms for essential provisions of a replacement enterprise agreement were developed. Subsequently on 5 May 2010 a second ballot for approval of an enterprise agreement was defeated with approximately 59% of employees voting against approval.

[7] By way of correspondence dated 8 June 2010 NCR wrote to the ASU and confirmed that it did not wish to make a new enterprise agreement for its Customer Engineers. This correspondence stated inter alia, “In circumstances where the employer has made a decision that it no longer wishes to negotiate on an enterprise agreement, we believe that it is not possible for a bargaining order to be made”.

[8] Essentially the ASU has submitted that NCR is breaching the good faith bargaining requirements of the Act by refusing to attend and participate in any further meetings to discuss a proposed enterprise agreement. In summary form, NCR has submitted that it is entitled to withdraw from the bargaining process and in doing so does not breach the good faith bargaining requirements.

[9] Section 228 of the Act sets out the good faith bargaining requirements and reads 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:

(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.”

[10] It would seem that the decision by NCR to withdraw from the bargaining process and consequently refuse to attend and participate in any further meetings with the ASU and other bargaining representatives, would represent an undeniable breach of subsection 228 (1) (a) of the Act. The proposition advanced by NCR that because one party initiated negotiations for an enterprise agreement it obtained the capacity to “de-initiate” the negotiations would if adopted, create an unwieldy and impractical environment contrary to the facilitation of a process that could provide for “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations...” 3.

[11] One important underlying foundation of enterprise agreement negotiation is a level of mutual respect enhanced by the absence of precipitous unilateral action such as refusing to meet and discuss competing positions. The good faith bargaining requirements set out in section 228 of the Act do not require Parties to make concessions or compel agreement to be reached [subsection 228(2)]. However these provisions do not translate into any sanction for a Party to unilaterally withdraw from the negotiations. On the contrary, subsection 232 (b) (iv) of the Act which deals with the Operation of a Bargaining Order contemplates that bargaining would cease when the bargaining representatives for the agreement reach agreement that bargaining has ceased.

[12] Consequently the Act does not envisage even in an apparent stalemate during negotiations, that one Party could or should unilaterally decide that bargaining had ceased and refuse to participate in any further meetings or discussions. The Act at s.240 specifically provides for a bargaining representative to apply for FWA to deal with any dispute arising during the enterprise bargaining negotiations.

[13] On balance and in fairness to NCR, I can appreciate the level of frustration that obviously underpinned the decision to no longer pursue negotiations for an enterprise agreement. In the context of a lengthy history of negotiations and two unsuccessful ballots, there would have been understandable angst that greeted the advice from the ASU that it had revised its wages claim from a 5% per year increase to a 10% per year increase.

[14] The action of the ASU in “revising” its wages claim against rather than towards agreement was most regrettable. In this regard the ASU has breached the good faith bargaining requirements as set out in subsection 228 (1) (d) of the Act. To increase a wage claim from 5% to 10% during the bargaining negotiations amounts to a failure by the ASU to give genuine consideration to the proposals of other bargaining representatives. Consequently I have decided to include a bargaining Order made against the ASU as a means to remedy this breach of the good faith bargaining requirements of the Act.

[15] The ASU has also sought a bargaining Order in respect to the alleged capricious or unfair conduct of NCR that undermined freedom of association or collective bargaining. In this regard NCR has apparently commenced to negotiate with a part of its workforce in Western Australia with an aim to reach agreement on an industrial instrument to apply to some but not all of its Customer Engineers. This approach has apparently been initiated without advice to the ASU or other acknowledged bargaining representatives. This action by NCR would appear to have the potential to represent unfair conduct that may undermine collective bargaining.

[16] Consequently and particularly as bargaining Orders will be made to require NCR to meet with the ASU and other authorised bargaining representatives with regard to the proposed national agreement for Customer Engineers, it should, as a matter of basic fairness, advise and inform the ASU and other bargaining representatives of any discussions and or proposals that have been advanced or are likely to be advanced with individual employees or particular groups of employees.

[17] In summary, the application for bargaining Orders has been made in accordance with section 229 of the Act. In particular the timing of the application has satisfied the provisions of subsection 229 (3) of the Act. Further, the prerequisites for making an application as specified by subsection 229 (4) of the Act, have been met. In particular the written notice required by subsection 229 (4) (b) was provided by the ASU in correspondence dated 2 June 2010 to NCR.

[18] I have considered the submissions and evidence provided by the Parties and I am satisfied that the requirements of section 230 of the Act have been met. In particular I am satisfied that it is reasonable in all the circumstances to make bargaining Orders. However the terms of the bargaining Orders have not been those as sought by the ASU, but rather have been made to reflect the contents of this Decision. The consequential Orders are issued separately [PR500593] and operate in accordance with section 232 of the Act.

COMMISSIONER

Appearances:

Ms. J. Justo and Mr. K. Harvey (the ASU) for the Applicant.

Ms. M. Hurley-Smith (Baker McKenzie) and Ms. K. Kucelj (NCR) for the Respondent.

Final written submissions:

Monday 9 August 2010 for the Respondent.

Friday 13 August 2010 for the Applicant.

 1   Respondent’s Outline of Submissions paragraph 17(e).

 2   Transcript of proceeding PN96.

 3   Section 3 (f) of the Act.

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