Australian Municipal, Administrative, Clerical and Services Union-Western Australian Branch v The Shire of Broome, Western Australia
[2009] FWA 602
•12 OCTOBER 2009
[2009] FWA 602 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
The Shire of Broome, Western Australia
(B2009/10725)
DEPUTY PRESIDENT MCCARTHY | PERTH, 12 OCTOBER 2009 |
Proposed protected action ballot by employees of The Shire of Broome, Western Australia.
Background
[1] On 25 September 2009 the Australian Municipal, Administrative, Clerical and Services Union ("the ASU”) made application for a Protected Action Ballot Order ("PAB Order") for employees employed at the Shire of Broome ("the Shire") at the Shire’s works depot . The ASU complied with the requirements of s.440 of the Fair Work Act 2009 ("the FW Act”) by giving a copy of the application to the Shire and to the Australian Electoral Commission.
[2] I proceeded to conduct a hearing to determine the application on 1 October 2009. At that hearing the agent for the respondent, Mr White, initially indicated that the Shire opposed the application asserting that the ASU was not genuinely trying to reach agreement. He stated that the ASU had not provided detail of what was being sought nor what efficiencies would be achieved.
[3] After me pressing Mr White as to what the Shire’s position was he changed the submission to not objecting to the ballot issuing but wishing one of the questions requested to be put to ballot to be changed. The ASU agreed to the change requested.
[4] Mr White then stated that his instructions had changed and the Shire opposed the application on the basis that it was asserted that the ASU had not and was not genuinely trying to reach agreement. Mr White appeared to be getting instructions on the run. I considered that the Shire would not have a reasonable opportunity to present its case if I proceeded on that day. As a consequence I adjourned the proceedings until the following day to allow the Shire the opportunity to consider its position and to present evidence in person.
Submissions and Evidence
[5] Initially the ASU made submissions and relied on those submissions about the negotiations that had been undertaken and the stage that they had reached. It was clear from those submissions that the negotiations had been laborious and the progress slow.
[6] Ms Ingrid Bishop, the Director of Corporate Services for the Shire, gave evidence directed at the contention by the Shire that the ASU had not and was not genuinely trying to reach agreement. She gave evidence that she believed that employees did not understand the meaning and effect of the content of the agreement. Therefore she had sought to simplify the agreement to facilitate the employees' understanding of it, this being a response to requests from employees. This she said was a painstaking exercise.
[7] She also said that employees involved in the negotiations had agreed to matters and had later changed position. It seemed that in that regard Ms Bishop was referring primarily if not solely to drafting and style issues rather than claims or proposals or counters to either. An example she provided was the time spent on debating whether the Shire should be referred to in the agreement as "the Shire" or as "the employer".
[8] Another example Ms Bishop provided in support of the Shires contention was the practices at the negotiation meetings and in particular the time consumed in addressing the minutes at each meeting. The progression towards an agreement she claimed thereby became bogged down.
[9] She also gave evidence thatthe communications from the ASU and its representatives was poor. She gave examples of:
- requests for substantiation of or at least basis for some of the claims (" a business case");
- employees did not attend meetings on the last two scheduled meetings and did not attend at all. Neither did those employee representatives inform the employer that they would not be attending nor does it appear that any explanation has yet been provided;
- failure to respond to requests for information and proposals for the sharing of benefits of productivity improvements ("special projects');
- bypassing the negotiation protocols by the employee representatives by discussing matters directly with the CEO including informing him of responses to proposals raised by the Shire through the negotiations;
- the focusing on minor aspects of the issues by employee representatives;
- complaints by employee representatives about the format of the negotiating documents resulting in continual reformatting and re-presenting documents, as an example four days were spent by the Shire to produce a document with relevant highlights in different colours underlining and fonts. 1 Previous attempts had included provision of excerpts and schedules but were not satisfactorily.
[10] In considering the material before me and prior to reaching a decision it appeared to me that because of the confusion emanating form the Shires changing positions that the ASU may not have been given sufficient opportunity to present evidence in counter to that of the Shire. I therefore gave a further opportunity to the ASU to present evidence which they did through Mr Darcy Buckle. Mr Buckle was described as the lead negotiator for the ASU.
[11] Mr Buckle gave evidence in support of the ASU's contention that the employees and the ASU had tried and were trying to make an agreement with the Shire. He gave evidence that:
- the nominal expiry date of the existing agreement was 30 June 2009;
- the ASU had sought negotiations since August 2008 for a replacement agreement;
- the Shire made Ms Bishop the person responsible for the Shire for the negotiations;
- the ASU attempted to but could not get a meeting with Ms Bishop for 5 months;
- there were six main issues including salary increases and the spread of hours;
- the positions of both parties had altered on various matters throughout the negotiations.
[12] Mr Buckle gave a very different picture to that of Ms Bishop about the conducting of the negotiations. He agreed that the employees involved in the negotiations had been very particular about the content of the minutes. However he explained that the matters discussed at the meetings were usually identified in material provided by the Shire a couple of hours before the scheduled time for the meetings. This he said made it impossible for the employees involved to properly examine the material and discuss it amongst themselves prior to the meetings.
[13] He gave an example of the angst of the employees from the documents provided of the Shire including a proposal, which they appeared to identify as an agreed position of a change in the spread of hours from Monday to Friday to Monday to Sunday. Mr Buckle inferred that when questioned about this proposal the response from the Shire was that the change in the spread of hours was not significant.
[14] Mr Buckle also explained the circumstances surrounding the meetings scheduled and the lack of attendance. He stated that he discussed the meeting scheduled for 8 September 2009 with the Human Resources Manager for the Shire, Ms Rebecca Irving, prior to the date in question. He alerted her to the fact that he would be attending an Occupation Health and Safety training program for the week of the 8 September 2009 and would not be able to attend. The Shire was aware of and had approved the training some months beforehand. Indeed the training took place and took place in the meeting room that the negotiations were usually conducted in. Ms Irving apparently stated that there were also members from the Shires side that would be unable to attend. The meeting was therefore cancelled by agreement during that conversation and Mr Buckle informed the other employee representatives of that.
[15] Mr Buckle also gave evidence that there was a meeting scheduled for 15 September 2009. His evidence was that the employee representatives attended but no-one from the Shire did and hence the meeting did not take place.
Conclusions
[16] In considering this application either the evidence of Ms Bishop is to be preferred or that of Mr Buckle. Mr Buckle’s evidence was clear and thorough yet concise. The explanations he gave of the difficulties that had been encountered left me with the clear impression that the approach of the employees had been reasonable and the concerns they had understandable.
[17] The explanation Mr Buckle gave about the meetings scheduled for 8 September 2009 and 15 September 2009 were credible and not contradicted. I find it astounding that Ms Bishop could give evidence that the employee representatives had been properly notified of the meeting of the 8 September 2009, had not discussed any difficulty any of them may have had in attending the meeting and simply did not show up. Clearly Mr Buckle’s evidence has to be preferred regarding that incident. Even more astounding is that the person Mr Buckle had the conversation with regarding the cancellation for the meeting attended all of these proceedings in person or by telephone or video link. She was not called upon to give any evidence.
[18] Indeed I prefer Mr Buckle’s evidence in every respect to that of Ms Bishop.
[19] I am satisfied that an application has been made under section 437 that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. An Order will issue to that effect.
DEPUTY PRESIDENT
Appearances:
Ms P. Byrne for the Australian Municipal, Administrative, Clerical and Services Union
Mr S. White for the Shire of Broome
Hearing details:
2009:
2 & 3 October
Perth.
1 Exhibit "R1"
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