"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
[2011] FWA 2005
•1 APRIL 2011
[2011] FWA 2005 |
|
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2011/2697)
COMMISSIONER RYAN | MELBOURNE, 1 APRIL 2011 |
Associated Kiln Driers Pty Ltd T/A AKD Softwoods.
[1] On 28 March 2011 the Australian Manufacturing Workers’ Union (AMWU) made application to Fair Work Australia for a bargaining order under s.229 of the Fair Work Act 2009 (the Act) to be issued against Associated Kiln Driers Pty Ltd T/A AKD Softwoods (AKD Softwoods).
[2] The order sought was for two specific purposes. Firstly, to stop a proposed ballot of employees in relation to the terms of an enterprise agreement which was otherwise agreed to between AKD Softwoods and the Construction, Forestry, Mining and Energy Union (CFMEU) and which would also apply to members of the AMWU employed by AKD Softwoods. Secondly, to require AKD Softwoods to continue to meet and bargain with the AMWU in relation to its proposed agreement which was a separate agreement for maintenance employees.
Background
[3] AKD Softwoods has had collective agreements in place covering its workforce in the past. These collective agreements have been negotiated on the basis that the agreement covers both production and maintenance employees. Negotiations for a new agreement commenced in July 2010.
[4] The evidence before the Tribunal in the form of minutes of negotiating meetings conducted from August 2010 clearly establishes that both unions were bargaining with AKD Softwoods.
[5] Both the CFMEU and the AMWU have members employed in maintenance work for AKD Softwoods. The CFMEU in addition has members employed in production work for AKD Softwoods. Whilst specific numbers were not put to me, it was accepted by the parties that the number of production employees is significantly greater than the number of maintenance employees and should the production employees approve an enterprise agreement, that would have the effect of overriding even a 100% negative vote from maintenance employees on an enterprise agreement.
[6] Whilst bargaining between AKD Softwoods and the CFMEU and the AMWU commenced in August 2010, the company did not issue a notice of employee representational rights (NOERR) at the commencement of the bargaining process. It appears that it was not until March 2011 that a NOERR was ultimately issued to employees. Whilst nothing was put to me for the reasons behind the failure of the company to issue the NOERR as required by s.173 of the Act, it appears that the oversight was identified and only corrected in March 2011. No party in the proceedings suggested that the non-compliance with s.173 had any practical bearing on the conduct of the bargaining that had occurred since August 2010 or which continued after the formal issue of the NOERR to employees in March 2011.
[7] During the negotiations, AKD Softwoods proposed an enterprise agreement which would cover both maintenance and production employees. The CFMEU supported one enterprise agreement covering production and maintenance employees. The AMWU specifically sought two enterprise agreements to be made: one covering maintenance employees, and in particular AMWU members; and the other covering the rest of the workforce.
[8] Bargaining proceeded by way of meetings between AKD Softwoods and both the CFMEU and the AMWU. In this sense the agenda of each of the respective parties was considered at joint bargaining meetings. AKD Softwoods appears to have responded to the concerns and the agenda of the AMWU by bargaining in relation to changes to the one enterprise agreement covering both maintenance and production employees rather than agreeing to create a separate agreement for maintenance employees.
[9] In March 2011 the AMWU sought to exercise rights it had under the Act in relation to bargaining. The AMWU made an application for a protected action ballot order to enable it to take protected action at AKD Softwoods in relation to the enterprise agreement that it sought to have made with AKD Softwoods. A protected action ballot order was issued by Commissioner Blair. The ballot conducted by the Australian Electoral Commission was to conclude on the day of hearing of this matter, which meant that if the ballot was successful the AMWU would not have been in a position to commence any protected industrial action until 6 or 7 April 2011.
[10] Whilst this process was underway, AKD Softwoods gave notice to its employees that it intended to put an enterprise agreement to a ballot of employees. The proposed agreement to be balloted on was an enterprise agreement covering both production and maintenance employees. The CFMEU concurred with the proposal to put the agreement to ballot of employees. AKD Softwoods gave the appropriate notice of the intention to have employees ballot on the agreement and set a ballot date of Thursday 31 March 2011. The formal notice of the intention to have employees approve the agreement was given to employees on 22 March 2011. Prior to AKD Softwoods giving formal notification to its employees of its intention to have them approve the enterprise agreement, the AMWU had also made an application to Fair Work Australia for scope orders. This application was not proceeded with to any substantive hearing before FWA at the request of the AMWU.
[11] AKD Softwoods, in response to actions undertaken by the AMWU, amended its notice to employees as to the date for the ballot on the proposed enterprise agreement from 31 March to 4 April. The amended notice was issued to employees on 25 March 2011.
[12] The application in the present matter was designed to seek an order which would prevent the ballot from taking place on 4 April 2011 and would delay a ballot whilst further negotiations took place between AKD Softwoods and the AMWU. The second part of the order sought in this matter by the AMWU was to require the AMWU and AKD Softwoods to meet during a period which the AMWU suggested would end on 8 April for the purposes of further negotiating the matters sought to be pursued by the AMWU.
The position of the parties
[13] The AMWU as applicant in this matter contended that the actions by AKD Softwoods in proposing to puts its proposed enterprise agreement to a ballot of employees was an unfair tactic designed specifically to terminate rights of AMWU and its members in bargaining. Specifically the AMWU contended that AKD Softwoods by proposing a ballot of employees to be conducted on 4 April 2011 was engaging in capricious or unfair conduct that undermined freedom of association for collective bargaining and as such this constituted a breach of the good faith bargaining requirements in s.228(1)(e). The capricious or unfair conduct alleged to be engaged in by AKD Softwoods was that by putting the AKD Softwoods proposed agreement to a ballot of all employees, that AKD Softwoods was frustrating the rights of AMWU members both to bargain and, if approved, to take protected industrial action.
[14] The AMWU contended that the action of AKD Softwoods in proposing a ballot of employees on 4 April was an avoidable action and as such it was a deliberate action by the company, done for the purposes of being an unfair tactic to achieve AKD Softwoods’ desire to have one enterprise agreement covering its entire workforce.
[15] The AMWU contended that AKD Softwoods could easily have avoided undertaking the tactic of having a ballot of employees on the 4 April. As the AMWU contended to the Tribunal: “The vice of which we complain is that the employer won't defer the ballot to allow us, that is the AMWU and its members to continue bargaining, that's the vice, and also knowing full well what effect the made agreement will have on our bargaining rights it is continuing on regardless.” 1
[16] AKD Softwoods contended that its actions simply could not constitute unfair conduct, that it was doing nothing more than exercising its right to put a proposed enterprise agreement to a ballot of employees. AKD Softwoods contended that it had engaged in lengthy and detailed bargaining with both the AMWU and the CFMEU and that at all stages during the bargaining process the AMWU had every opportunity of bargaining for its agenda which was to seek a separate enterprise agreement for maintenance workers. AKD Softwoods contended that there was simply no evidence before the Tribunal which could sustain a finding that AKD Softwoods had breached the good faith bargaining requirements of s.228 of the Act.
[17] AKD Softwoods contended that the bargaining process had reached a stage where there was an effective impasse between the parties, ie AMWU and AKD Softwoods, such that it was proper for AKD Softwoods to put the proposed enterprise agreement that it sought to a ballot of its employees.
[18] The CFMEU position was that it supported the proposal of AKD Softwoods to put its enterprise agreement to a ballot of all employees. The CFMEU also contended that there was a significant deficiency in the AMWU application. In particular, the CFMEU said that the application in this matter asserted that: “...the bargaining process is not proceeded efficiently or fairly because there are multiple bargaining representatives, within the meaning of s.229(4)(a)(ii) of the Fair Work Act, and two of the bargaining parties (the respondent and the CFMEU) agreed to put the proposed agreement to a vote when they know or ought to know that the other bargaining party cannot prevent itself being subject to the choice of the first two bargaining parties, and by reason thereof will suffer prejudice of the kind referred to in paragraph 7 herein.”
[19] The CFMEU contends that, whilst that matter was pressed as a ground for the orders being sought by the AMWU, the AMWU had not raised that ground as a concern with the bargaining representatives against whom it sought a bargaining order. In particular the CFMEU contended that the AMWU had not complied with the requirements of s.229(4) of the Act which required that the AMWU would have to have “given a written notice setting out those concerns to the relevant bargaining representatives”.
[20] The CFMEU contended that the letter from AMWU to AKD Softwoods dated 24 March 2011 2 did not identify as a concern of the AMWU anything in relation to a multiplicity of bargaining representatives. Therefore, the CFMEU contended, the AMWU had not complied with the pre-requisites of s.229(4) and thus it could not seek to have a bargaining order made as a bargaining order could only be made if those requirements have been meet or, if pursuant to s.229(5), FWA considered it appropriate in all the circumstances to waive requirements with that paragraph. The CFMEU also contended that it had offered to the AMWU the opportunity of engaging in a joint bargaining approach with AKD Softwoods and that this approach had been strongly rebuffed by the AMWU. By way of reply, the AMWU contended that its letter of 24 march 2011 to AKD Softwoods was sufficient in that it set out the factual underpinnings of the concerns of the AMWU and that it was not necessary or essential that the AMWU in that letter repeat the language of either s.228(1) or that it define or describe its concerns in language that related to the requirements of s.230(3).
Consideration of the issues
[21] At its simplest, the current position can be described as follows.
[22] The CFMEU and AKD Softwoods are at one in wanting to have one enterprise agreement to cover both production and maintenance workers employed by AKD Softwoods in its respective operations.
[23] The AMWU is seeking to have a separate agreement covering its members who are employed only in maintenance operations by AKD Softwoods. The AMWU has maintained a consistent strong position of wanting a separate agreement for AMWU maintenance employees since the commencement of the negotiations in August 2010. Equally the CFMEU and AKD Softwoods have maintained a consistently strong position that there should only be one enterprise agreement covering both maintenance and production employees employed by AKD Softwoods. The AMWU has approximately 14 out of 20 maintenance employees employed by AKD Softwoods and it knows, as does both the CFMEU and AKD Softwoods, that in any vote of all employees that the small number of AMWU maintenance workers will inevitably be overwhelmed by a majority vote of the production employees.
[24] The AMWU has made an application for scope order but did not press it and did not do so on the basis that to have pressed for a scope order, may have led to a successful outcome in achieving an order but it may have been of no real value if a vote went ahead before a scope order could be obtained. Thus, whilst the AMWU made an application for a scope order, it decided that it was more important to make an application for a bargaining order so as to delay the vote on 4 April from taking place. If a bargaining order was successful, a scope order application might then have some utility.
[25] In these proceedings however, no indication was given by the AMWU as to whether or not it would be seeking to have the scope order application determined by Fair Work Australia.
[26] The essence of the issue in this matter is whether or not it is fair conduct for AKD Softwoods after some seven months of negotiations with the two key unions representing its workforce, for it to now put to employees a proposition that they approve a single agreement covering both maintenance and production employees and to do so in circumstances where the union with the majority of employees supports the proposed agreement.
[27] In this decision I don’t intend to consider the submissions of the CFMEU or reply of the AMWU in relation issues surrounding the multiplicity of bargaining representatives. In my considered view, it is simply not necessary to do so. The matter in issue can be resolved in this decision on the basis of the specific allegation that the tactic of having a vote of employees on 4 April constitutes unfair conduct for the purposes of s.228(1)(e) of the Act.
[28] In the proceedings before me, both AKD Softwoods and the CFMEU asserted that the AMWU had not itself engaged in good faith bargaining and that as such it had not come to court with clean hands. I note that unlike s.238(4)(a) that s.230(1) does not require that an applicant for a bargaining order must also be meeting good faith bargaining requirements. That distinction cannot be considered to be a mere oversight of Parliament, but must be treated as being a deliberate decision by Parliament in enacting the Fair Work Act. In other words, the AMWU may still make an application for bargaining orders even if it can be accused of not meeting good faith bargaining requirements. That doesn’t mean that the allegations in relation to the AMWU are ignored by the Tribunal as s.230(1)(c) gives a broad discretion to FWA when making a bargaining order in that a bargaining order will only be made if “FWA is satisfied that it is reasonable in all the circumstances to make the order” and one of the circumstances would necessarily include the conduct of the applicant.
[29] In this matter I have concentrated on the conduct of AKD Softwoods. I accept without reservation the position of the AMWU that it considered the tactic adopted by AKD Softwoods of putting the single agreement to a vote of employees on 4th April to be unfair, but that’s not the test of the Act. Simply because the AMWU and its members feel or consider that something is unfair does not necessarily make it so. The AMWU and its members have a very narrow perspective when viewing this issue. From their perspective, the conduct of AKD Softwoods is unfair, simply because it doesn’t permit the AMWU and its members to do what they want to do which is to continue to bargain for their preferred outcome, namely an enterprise agreement that would cover employees other than AMWU maintenance employees and a separate enterprise agreement that would cover AMWU maintenance employees.
[30] As this is not a criminal matter, then the level of proof required is that of proving a matter on the balance of probabilities. This means that a question would need to be posed as follows: Would a reasonable person, on the balance of probabilities, conclude that the conduct of AKD Softwoods was capricious or unfair conduct that undermines freedom of association or collective bargaining. When expressed in that form, it removes the narrow perspective of the AMWU’s view of the world and replaces it with a more objective test and it is an objective test which is required under the Act. An objective assessment of the evidence in this matter must have regard to the following:
- Bargaining has been proceeding between AKD Softwoods and both the CFMEU and AMWU since August 2010.
- Issues of direct and specific concern to maintenance employees that have been raised by the AMWU have been considered and responded to by AKD Softwoods, including incorporating some of these matters into the terms of a single enterprise agreement which AKD Softwoods proposes to have for its production and maintenance employees. The CFMEU also represents maintenance employees in the bargaining.
- No assertions have been made by the AMWU that AKD Softwoods has acted contrary to the good faith bargaining requirements of ss.228(1)(a), (b), (c), (d) and (f).
- No assertion has been made by the AMWU that the CFMEU as another bargaining representative, has engaged in any conduct which was in breach of s.228.
[31] I accept as a general proposition that an employer may be acting in breach of its good faith bargaining requirements by taking a proposed agreement to a vote of employees. However, that general proposition will always be subject to the evidence of a particular case and all of the circumstances of a particular case.
Conclusion
[32] On the evidence before me in this matter, I am not satisfied that one or more of the relevant bargaining representatives for the agreement have not met or are not meeting the good faith bargaining requirements of the Act.
[33] In particular, I am not satisfied that there is any evidence that AKD Softwoods has not met in the past or is not currently meeting the good faith bargaining requirements of s.228 and in particular s.228(1)(e) as alleged by the AMWU.
[34] In my considered view, the evidence which is uncontested that AKD Softwoods intends to proceed to have its employees vote on whether or not to approve the enterprise agreement proposed by it and by supported by the CFMEU on 4 April 2011 does not constitute capricious or unfair conduct that undermines freedom of association or collective bargaining.
[35] I also am not satisfied that the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement. In the present matter there are three bargaining representatives: the employer, the CFMEU and the AMWU. The evidence is clear that the CFMEU and AKD Softwoods have a common purpose in putting to a ballot of employees the agreement proposed by AKD Softwoods which would be a single enterprise agreement covering both production and maintenance employees. I accept that, from the perspective of the AMWU, this will have an unfair outcome, however, I am not satisfied that the bargaining process is not proceeding fairly simply because there is common purpose between CFMEU and AKD Softwoods and where that common purpose is considered by the AMWU to be unfair.
[36] On an objective assessment, I am satisfied that the bargaining process has proceeded both efficiently and fairly even though there are three bargaining representatives for the agreement.
[37] I am satisfied that the AMWU has complied with the requirements of s.229(4) of the Act and that the application is within the time limits set by s.229(3) of the Act and that the requirements of s.230(2) have been met. However, as I am not satisfied of the matters identified in s.230(3) of the Act, I am required to dismiss the application.
COMMISSIONER
Appearances:
Mr M. Harding, Counsel, for Australian Manufacturing Workers’ Union
Mr. A. McNab, Counsel, for Associated Kiln Driers Pty Ltd T/A AKD Softwoods
Ms. R. Read for Construction, Forestry, Mining and Energy Union
Hearing details:
2011
Melbourne
March 31
1 Transcript of proceedings at PN514
2 Attachment TH2 to Exhibit A1
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