"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Cochlear Limited
[2012] FWA 5374
•3 AUGUST 2012
[2012] FWA 5374 |
|
DECISION |
Fair Work Act 2009
s.229 - Applications for bargaining orders
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Cochlear Limited
(B2011/4085)
Mr David Hargraves
v
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2011/4101)
COMMISSIONER CARGILL | SYDNEY, 3 AUGUST 2012 |
Applications for bargaining orders.
[1] This decision arises from two applications for bargaining orders made pursuant to section 229 of the Fair Work Act 2009 (the Act). The application in matter B2011/4085 which was lodged with Fair Work Australia (FWA) on 15 December 2011 is made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU or the union). It seeks orders against Cochlear Limited (Cochlear or the company).
[2] The application in matter B2011/4101 was lodged on 19 December 2011. The application is made by Mr D Hargraves who is a bargaining representative on behalf of Cochlear. In this application Mr Hargraves seeks an order against the AMWU, its officers and representatives.
[3] It should be noted that, because Mr Hargraves is also a witness in both matters and in order to avoid confusion, I have generally referred to the parties as being the AMWU and Cochlear.
[4] The matters were listed for mention by recorded telephone hearing on 22 December 2011. Following that hearing agreed directions were issued. These set out a program for the filing and exchange of material in relation to both matters.
[5] Hearings of the substantive matters took place on 19, 20, 21, 22 and 23 March, 30 April, 2, 3, 4, 7, 21 and 31 May and 9 July 2012. There were also a number of hearings which dealt with associated issues such as orders for production of documents. Some of those proceedings occurred by recorded telephone hearing, on 30 March and 18 April 2012, and others in formal hearings on 7 February and 13 April 2012. An inspection of the premises of Cochlear where the work which is relevant to these applications is carried out took place on 21 March 2012. That inspection included viewing the lunchrooms, the Mural Room and “Mulberry B”, each of which features in the evidence.
[6] During the substantive hearings the AMWU has been represented by Ms Howell of Counsel, together with Mr McCauley, Legal Officer with the union. Cochlear has been represented by Mr Wood, S.C. and Mr Saunders of Counsel.
[7] There are two employee bargaining representatives who have been involved in the negotiations, Mr Junday and Mr Naing (the EBRs). They have been represented in these proceedings by Mr Brown, solicitor. Cochlear has provided what has been described as “legal aid” to the EBRs for the purposes of seeking advice from and retaining Mr Brown’s services.
[8] There has been extensive evidence, submissions and other material produced in these matters. One example is the agreed chronology of events which extends for 24 pages. In the circumstances I do not intend to provide a detailed summary of all of the evidence and submissions. However, in reaching my conclusions, I have had regard to all of the material before me.
ORDERS SOUGHT
[9] The AMWU has amended the orders initially sought in its application. The amended claim is as follows:
“(1) That the bargaining representatives meet within seven days of the making of this order to determine a schedule of 5 bargaining meetings, with the first commencing within 21 days of this order and meetings occurring no more than 14 days apart;
(2) That Cochlear refrain from imposing the condition that any bargaining meetings must occur under the auspices of the “bargaining protocols”;
(3) That Cochlear allow the AMWU to hold a 1 hour paid meeting with employees on each shift prior to the end of June 2012 to discuss collective bargaining, and a further 1 hour paid meeting with employees on each shift during each following calendar month until the conclusion of bargaining for an enterprise agreement to cover Cochlear employees. Specific times and locations of those meetings at Cochlear premises are to be agreed between the parties;
(4) That Cochlear provide access to AMWU officials to the production employees’ main lunch-room for the purposes of discussing collective bargaining with employees during their meal breaks;
(5) That Cochlear:
(a) within 7 days of this order, by email to [email protected], seek the advice of the Department of Education, Employment and Workplace Relations (“DEEWR”) as to whether the dispute settlement procedure proposed by Cochlear on 30 April 2012 (Exhibit Cochlear 20) complies with the Fair Work Principles; and
(b) provide to the other bargaining representatives a copy of any and all correspondence with, and advice from DEEWR, in respect of paragraph 5(a) of this order;
(6) That the parties attend and participate in a report back conciliation before FWA in July 2012;
(7) That the bargaining representatives have liberty to apply to FWA to resolve disputes that may arise from the making this order.”
[10] It is recognised that the dates at Orders 3 and 6 would need to be further amended.
[11] Mr Hargraves has also amended the order he initially sought in his application. The amended claim is as follows:
“For a period of six months, the AMWU, its officers and representatives must comply with the terms of the “Protocols for Bargaining Between Cochlear, the AMWU and Employee Bargaining Representatives” signed by the bargaining representatives in July and August 2010”.
[12] In practical terms this has been further amended to be the Protocols as proposed in Appendix D to Cochlear’s submissions of 28 May 2012 or as further varied by agreement of the parties.
BACKGROUND AND OVERVIEW
[13] The following brief background and overview is provided in order to place the evidence and submissions into context. The agreed chronology referred to earlier sets out all of the relevant actions of and interactions between the parties.
[14] Cochlear describes itself as the world leader in the implantable hearing market. Its production facility is presently at Lane Cove although that facility will be moving to new purpose-built premises in Macquarie Park when various regulatory issues have been cleared. Cochlear employees 434 production employees. These come from a wide range of cultural and linguistic backgrounds.
[15] There are two shifts for production employees. One is variously described as the morning or day shift and operates from 6am to 1.51pm. The other is the afternoon shift and runs from 2.15pm to 10.06pm. There are 288 employees on the morning/day shift and 146 on the afternoon shift. Employees have staggered meal and rest breaks. The details of these arrangements are set out in Exhibit Cochlear 6 and in paragraph 16 of Exhibit Cochlear 33. The rest break is of 15 minutes duration and is paid. The lunch break is of 30 minutes duration and is unpaid.
[16] Cochlear and the AMWU are parties to an agreement which was made under the Industrial Relations Act 1996 of New South Wales. That agreement is titled Cochlear Limited Enterprise Partnership Agreement 2005 and had a nominal expiry date of 30 June 2007 (2005 Agreement. By virtue of various changes to the Federal legislation, that 2005 Agreement has become in turn, a preserved collective State agreement and a transitional instrument.
[17] Employees are also covered by individual common law contracts. The employees have received pay increases on 1 July in at least the years 2007 to 2011, both inclusive. That increase was 4% in each of those years except for 2009 when the increase was 3%. A 2008 template contract is at Exhibit AMWU 32 and a more recent standard contract is Annexure How2 to Exhibit Cochlear 32.
[18] In 2006 Cochlear and the AMWU entered into an agreement to govern right of entry visits by the union. That agreement is titled “Code of Practice for Right of Entry” (Code of Practice) and is Annexure How 4 to Exhibit Cochlear 32. In correspondence dated 11 May 2007 Cochlear advised the AMWU that it would not continue to afford the union officials the privileges of the Code of Practice.
[19] On 20 August 2009 FWA issued a majority support determination (MSD) which found that a majority of Cochlear’s production employees wanted to bargain with the company for an enterprise agreement.
[20] At the AMWU’s suggestion Cochlear and the union negotiated a set of protocols to apply to the bargaining process. These negotiations took place between September 2009 and June 2010. The protocols were signed by the various bargaining representatives including the EBRs between 16 July and 2 August 2010. The signed protocols (the Protocols) are Attachment TA36 to Exhibit AMWU 2 and also Annexure A to Exhibit Cochlear 21. It is these Protocols which are referred to in Mr Hargraves’ proposed order set out above.
[21] Bargaining meetings took place on the following dates: 17 September 2010; 13 October 2010; 3 November 2010; 24 February 2011; 25 May 2011; 8 June 2011; 28 June 2011; 20 July 2011; 16 August 2011; and 2 November 2011. Minutes of these meetings were taken by a Cochlear representative. The AMWU took its own notes.
[22] The exchanges between the parties during the course of the bargaining are fulsomely dealt with in the evidence of several of the witnesses. It is instructive to note that the detailed written positions of the respective parties were put on the following dates:
● 3 November 2010 - AMWU provides a bargaining issues table containing its proposals;
● 22 December 2010 - AMWU provides a draft agreement;
● 21/22 March 2011 - AMWU provides an updated bargaining issues table;
● 20 July 2011 - EBRs provide updated bargaining issues table showing their position;
● 30 August 2011 - Cochlear provides its written response to AMWU claims;
● 15 February 2012 - Cochlear provides an updated bargaining issues table;
● 7 March 2012 - AMWU provides a response to Cochlear’s 30 August 2011 proposal;
● 30 April 2012 - Cochlear provides an updated response.
[23] On 4 November 2011 the AMWU advised Cochlear in writing that it intended to repudiate the Protocols and continue bargaining in accordance with the relevant provisions of the Act. In further correspondence dated 5 December 2011 the union confirmed that it had repudiated the Protocols. Cochlear has not accepted the repudiation of the Protocols.
[24] The nomination forms of those employees who nominated either one or both of the EBRs to represent them in the bargaining are contained in Exhibit AMWU 42. There are 23 from July 2010, 35 from December 2011, one from February 2012, one undated and one unsigned and undated. The names of the signatories have been redacted as agreed.
[25] A statutory declaration at pages 190 to 194 of Exhibit Cochlear 35 shows that, as at 31 March 2012, the AMWU represented 158 members at Cochlear.
EVIDENCE
[26] The AMWU called five witnesses: Mr T Ayres, the NSW State Secretary of the union; Ms R Fortescue, the NSW Secretary of the Technical, Supervisory and Administrative Division of the union; Mr L Mason, employee of Cochlear and AMWU delegate; Ms S Fan, employee of Cochlear and AMWU delegate; and Mr G Simon, AMWU Organiser.
[27] Mr Ayres provided three witness statements. The first was dated February 2012 and became Exhibit AMWU 2. Although this statement does not contain an exact date it was prepared on or about 8 February 2012 and is referred to in Mr Ayres’ other statements as having that date. The second statement was dated 22 February 2012 and was made in reply to Mr Hargraves’ first statement, Exhibit Cochlear 21. This second statement was marked Exhibit AMWU 3. Mr Ayres’ third statement was dated 7 March 2012 and is in reply to statements of Mr Hargraves and Mr Howitt in reply in the AMWU application. This third statement was marked Exhibit AMWU 4. Mr Ayres also gave oral evidence which is at PN 711-3153 of Transcript.
[28] In his first statement Mr Ayres gives evidence that, since 2006, he has overseen the AMWU’s activities on behalf of members at Cochlear. He notes that, since the expiry of the 2005 Agreement, the union has attempted to negotiate a new collective agreement. Mr Ayres gives evidence of various steps taken by the union during 2007, 2008 and 2009 to pursue that objective. These included conducting surveys and ballots of members and employees to gauge support for a collective agreement.
[29] Mr Ayres’ evidence is that Cochlear refused to engage with the AMWU in relation to any such agreement and instead attempted to pursue a non-union agreement with employees and have the 2005 Agreement terminated. His evidence is that the company’s refusal to engage persisted after the commencement of the Act.
[30] Mr Ayres gives evidence about the union’s application for an MSD and its concerns about Cochlear’s actions leading up to the ballot which was held to determine whether there was majority support for bargaining. He notes that, two days prior to the ballot, Cochlear wrote to employees guaranteeing not to alter the terms and conditions of its common law contracts, other than wages and classifications, until 1 July 2012.
[31] Mr Ayres gives evidence about exchanges with the company following the MSD and concerns which he had about delays to bargaining. His evidence is that, following a conference in FWA, he proposed a set of bargaining protocols to facilitate negotiations for and the making of a collective agreement.
[32] Mr Ayres notes that Cochlear initially rejected the concept of having such protocols and refers to exchanges and meetings between the parties about this and related issues, especially the number of employees who were to participate in bargaining.
[33] It is Mr Ayres’ evidence that Cochlear had taken his good faith offer of bargaining protocols to make them a precondition to substantive bargaining and had then frustrated the negotiations for the protocols as a means by which to further delay bargaining. His evidence is that this view was reinforced by Cochlear’s actions in April 2010 in introducing new matters to be placed in the protocols. Mr Ayres’ evidence is that Cochlear was not being genuine and was merely raising these matters to prevent agreement on the protocols thereby further delaying bargaining.
[34] Mr Ayres’ evidence is that, when he signed the Protocols in August 2010, he did so because he was anxious that substantive bargaining had not commenced and despite his concerns that some matters in the Protocols would lead to formalistic and slow negotiations. His evidence is that he was disappointed with the slow progress thus far and wanted to begin substantive bargaining. In his oral evidence Mr Ayres testified that, in signing the Protocols, he took a leap of faith that a constructive bargaining relationship could develop.
[35] Mr Ayres’ evidence is that, at the 1st bargaining meeting, he outlined the union’s claim which was a codification of the various conditions applying to employees including the common law contracts, the 2005 Agreement and company policies. At the 3rd bargaining meeting he provided a bargaining issues document to assist in identifying areas of agreement and disagreement.
[36] Following the 3rd meeting, Mr Hargraves provided the union with a document which set out 33 questions about the AMWU’s claim. It is Mr Ayres’ evidence that these were argumentative and simply an attempt to delay progress by requiring futile debate. No counter proposals were provided or discussed.
[37] Despite his reservations about the questions, on 22 December 2010, Mr Ayres provided answers to some of them in tabular form as well as a draft agreement. It is the evidence of Mr Ayres that Cochlear refused to allow the AMWU to meet with employees in paid time or in the main lunchroom. His evidence is that this prevented the union adequately consulting members and employees about the progress of bargaining.
[38] Mr Ayres’ evidence is that the bargaining issues table was updated by the union from time to time. His evidence is that this document and the draft agreement reflected the union’s position of consolidating existing conditions into one instrument. His evidence is that the union’s claim is not extreme and not foreign to Cochlear’s operations.
[39] It is Mr Ayres’ evidence that the pay rise given to employees in July 2011 was outside of the bargaining process and done without discussion with or advice to the AMWU.
[40] The position of the EBRs was provided at the 8th bargaining meeting. Mr Ayres notes that the position of both EBRs was the same and that neither advanced any claim which was different to the company’s position.
[41] Mr Ayres refers to an exchange of emails in August 2011. His evidence is that Cochlear’s refusal to substitute another manager for one of its bargaining representatives, Mr Jarman, who was to be on leave for six weeks confirmed his apprehension that the Protocols were frustrating the bargaining process. Mr Ayres also gives evidence that Cochlear’s position put forward at that time, that the company would not advance any specific claims of its own and would not accept provisions from the individual contracts being placed in a collective agreement, was a radical departure from the discussions to that point.
[42] The company’s written response to the AMWU claims was provided on 30 August 2011. Mr Ayres’s evidence is that, despite numerous requests since that time, the company has not provided an alternative draft agreement. His evidence is that Cochlear’s response confirmed his view that the company did not intend to ever reach a collective agreement. This view was based on the fact that Cochlear’s proposal could never be approved by FWA, would never be agreed to by the employees and could not be constructively responded to.
[43] On 31 August 2011 the AMWU lodged a bargaining dispute application pursuant to section 240 of the Act. The issues in dispute included Cochlear’s refusal to meet while its representative was on leave, its failure to respond to claims in a timely manner, the independence of the EBRs, the suitability of the Protocols and the union’s access to members.
[44] On 7 September 2011 Mr Hargraves raised concerns about the union’s bargaining conduct. Mr Ayres gives evidence about subsequent exchanges. In particular, he refers to a letter from Cochlear dated 25 November 2011 which required the union to advance information which would show that granting the claims would contribute to the company’s international competitiveness. It is Mr Ayres’ evidence that the company’s approach in this regard is an artificial and arbitrary constraint designed to frustrate the reaching of an agreement. His view is that Cochlear’s position appears to be motivated by a determination never to reach agreement.
[45] Following a conference concerning the union’s bargaining dispute held in FWA on 5 December 2011 Mr Ayres wrote to Cochlear. Mr Ayres referred to concerns raised earlier and confirmed that, in the light of those concerns, the union was repudiating the Protocols. He noted that the union was still committed to bargaining and proposed dates for future meetings. Mr Ayres again sought Cochlear’s agreement to paid meetings with employees and access to the main lunchroom.
[46] It is Mr Ayres’s evidence that Cochlear’s position put forward on 30 August 2011 was a tactic designed to further frustrate the bargaining process. Further, he says that it is not possible for the union to effectively bargain in the absence of an alternative position from the company.
[47] Mr Ayres’ evidence is that the last occasion on which he was able to address a paid meeting of employees was in the lead up to the MSD ballot. It is his evidence that he has made several requests for paid meetings since that time. He believes that it is not possible for the AMWU to properly bargain on behalf of its members in the absence of an opportunity to meet with them, to discuss proposals and develop responses.
[48] It is Mr Ayres’ evidence that Cochlear’s insistence on only permitting access to a small meeting room, distant from the main lunchroom, has restricted the number of members able to attend meetings. His evidence is that he is aware that Cochlear has conducted meetings with employees in paid time which have included feedback on bargaining. The union has not been invited to participate in these meetings.
[49] In his second statement Mr Ayres gives evidence about the basis for his view that the Protocols had become unworkable and an obstacle rather than an aid to good faith bargaining. Mr Ayres advances six main reasons. First, the mandatory two hour maximum duration of the meetings. This time period is too short. It is Mr Ayres’ evidence that, on several occasions, Cochlear has stopped discussions when that period of time has passed. The company has declined to extend the length of meetings despite a number of requests by the union.
[50] The second reason is the two week minimum period between meetings. Mr Ayres’ evidence is that the company has insisted on strict adherence to this requirement even when it would have been useful to have had follow up meetings to conclude discussions on a particular issue. The requirement for a minimum period has also led to lengthy delays between meetings. It is Mr Ayres’ evidence that the short duration and infrequency of meetings under the Protocols contributed to the lengthy delay in receiving Cochlear’s response to the union claim.
[51] The third reason is the requirement for only named participants to attend meetings. It is Mr Ayres’ evidence that scheduling of meetings has been delayed on several occasions because of Mr Jarman’s absence overseas. His evidence is that Cochlear has rejected the provision of a substitute bargaining representative.
[52] The fourth reason is the number of AMWU employee representatives allowed under the Protocols and the inability to provide substitutes other than on a permanent basis. It is Mr Ayres’ evidence that the three named representatives have at times had difficulty attending meetings because of work and family arrangements. This has hindered the AMWU’s ability to effectively bargain as these representatives play an important communication role between employees and the union.
[53] The fifth reason is the requirement that consultation with employees is to be unpaid and in non working time unless otherwise agreed. It is Mr Ayres’ evidence that, despite several requests, the company has never agreed to the AMWU having a paid meeting during work time. Mr Ayres’s evidence is that Cochlear holds monthly meetings with employees during which the bargaining process is one of the issues discussed.
[54] The sixth reason is the absence of a proper process to resolve difficulties in the bargaining.
[55] Mr Ayres also responds to Mr Hargraves’ first statement, Exhibit Cochlear 21. Mr Ayres’ evidence is that he first suggested the development of a bargaining protocol sometime prior to the meeting of 24 November 2009. He disagrees with Mr Hargraves’ position that the Protocols provide a fair, efficient and workable bargaining process and that they offer an effective and structured methodology for negotiations.
[56] It is Mr Ayres’ evidence that the absence of alternative proposals from Cochlear and its refusal to agree to meaningful employee consultation demonstrates the failings of the Protocols.
[57] Mr Ayres’ evidence is that he would not usually propose the use of bargaining protocols but did so in this case as a means of moving away from the heated exchanges which had developed between the parties over the previous couple of years. He put forward a simple document setting out some good faith bargaining principles. It is Mr Ayres’ evidence that these principles are absent from the Protocols.
[58] Mr Ayres agrees with Mr Hargraves that the relationship between the parties was good at the start of negotiations about a protocol. His evidence is that, as negotiations became protracted, he believed that his original proposal was becoming a hurdle to substantive bargaining beginning. Mr Ayres was frustrated that Cochlear appeared to be delaying matters. Mr Ayres’ evidence is that he expressed his misgivings to the company in correspondence of 4 January, 8 March and 12 May 2010 as well as in meetings.
[59] Mr Ayres’ evidence is that he hoped substantive bargaining would overcome difficulties with the Protocols, however, that had not occurred. Mr Ayres disagrees with Mr Hargraves that the AMWU did not notify Cochlear of its concerns about the Protocols until September 2011. His evidence is that he and other union representatives raised their concerns on many occasions, for example, in the 5th and 6th bargaining meetings.
[60] Mr Ayres’ evidence is that negotiations to amend the Protocols would be pointless. The union’s experience thus far has led it to the view that any such negotiations would involve further delay and not result in a document which would facilitate bargaining. The AMWU wishes to bargain in accordance with the good faith bargaining requirements of the Act.
[61] Mr Ayres provides further evidence about difficulties with the operation of the Protocols. His evidence is that he repeatedly told Cochlear that it had an obligation to bargain and requested a company response to the union’s written framework, draft agreement and revised framework. It is Mr Ayres’ evidence that, during the 16 month period that the Protocols were in operation, the company did not put a meaningful proposal and refused to consent to a paid consultation meeting between the AMWU and employees. The parties were not even close to reaching agreement.
[62] Mr Ayres disputes Mr Hargraves’ statement that the union has not complied with the Protocols by failing to explain the rationale for its claims. He also disagrees with Cochlear’s letter of 25 November 2011. Mr Ayres’ evidence is that Cochlear’s imposition of a requirement that each claim be justified by reference to how it would contribute to the company’s international competitiveness is not warranted by the Protocols and has led to significant delays in bargaining.
[63] Mr Ayres rejects the suggestion that the non-attendance of some AMWU employee representatives at the bargaining meetings constitutes a breach of the Protocols. His evidence is that the union has taken all reasonable steps to ensure representatives attended. Changing work and family considerations and the length of the negotiations meant that it was not possible for all representatives to attend each meeting.
[64] In response to Mr Hargraves’ evidence that the AMWU did not provide agenda items within the requisite period and failed to attend meetings in a timely manner, Mr Ayres’ evidence is that his recollection is that all of the bargaining representatives had been tardy in providing agenda items and that the union had been kept waiting on a number of occasions by Cochlear and the EBRs. One reason for the union team being late was the need to have discussions among themselves prior to the commencement of the bargaining meetings. It is Mr Ayres’ evidence that the company has refused to allow time for such discussions.
[65] Mr Ayres disagrees with Mr Hargraves’ characterisation of a statement by the National Secretary of the AMWU, Mr Oliver, as being unfair and sensationalised. Mr Ayres’ evidence is that Mr Oliver’s comments were accurate. Mr Ayres’ evidence is that, until the union notified the bargaining dispute in August 2011, he had refrained from public statements about Cochlear. He noted that Mr Oliver’s statement occurred after he had informed the company that the union was no longer constrained by the Protocols. It is Mr Ayres’ evidence that an absence of public scrutiny has contributed to Cochlear’s failure to bargain in good faith.
[66] Mr Ayres’ disputes Mr Hargraves’ claim that, absent the Protocols, negotiations may have broken down because of various issues agitated by the union. Mr Ayres’ evidence is that, despite Cochlear being provided with several documents explaining and detailing the union’s claim and many requests for a written response, this was not provided until August 2011.
[67] Mr Ayres notes that there was no requirement in the Protocols or the Act that minutes of bargaining meetings be signed. His evidence is that he was concerned about the implications of him signing minutes recorded by another party. Mr Ayres ultimately decided to sign but on the basis that separate notes would be made by the union.
[68] Mr Ayres notes that the Protocols specifically required the AMWU to seek Cochlear’s approval for paid meetings.
[69] Mr Ayres notes Mr Hargraves’ evidence about Cochlear’s internal management committee team and its regular meetings. He states that this demonstrates the unequal bargaining positions of the company and the union. Mr Ayres notes that the union has not been given any opportunity to meet with employees during work time as management has.
[70] In his third statement Mr Ayres responds to the statements of Mr Howitt, Exhibit Cochlear 32 and Mr Jarman, Exhibit Cochlear 26 as well as Mr Hargraves’ statement in reply, Exhibit Cochlear 22.
[71] Mr Ayres reiterates his earlier evidence about the union’s claim and notes that it is primarily designed to consolidate employees’ existing terms and conditions into one simple document which is enforceable under the Act. His evidence is that the relevant modern award could be incorporated by reference or the agreement could explicitly deal with award matters. The union rejects the company’s position that goes against both of those options. Cochlear’s stance would lead to an agreement which would not pass the “Better Off Overall Test” (BOOT) and could not be approved.
[72] Mr Ayres rejects Mr Howitt’s evidence that he did not refuse to meet Mr Ayres in the lead up to the MSD if he was accompanied by a delegate. It is Mr Ayres’ evidence that Mr Howitt expressly refused to meet in such circumstances and this was one of the issues about which the union lodged a bargaining dispute in September 2009.
[73] In response to Mr Howitt’s evidence about the disruption which would be caused by involving eight employees in bargaining, Mr Ayres notes that he was keen to ensure the engagement of a spread of employees across shifts and workgroups. He had also foreshadowed a request to have employee representatives attend a bargaining skills workshop. It is Mr Ayres’ evidence that attendance at such a course leads to efficient and effective bargaining and minimises time away from usual work activities.
[74] Mr Ayres’ evidence is that Cochlear’s refusal to accept how many and which employees could participate in bargaining on behalf of the union was also one of the issues in the bargaining dispute referred to in paragraph 72 above. Mr Ayres’ evidence is that, following conciliation in FWA, he then reduced the number of employees to be part of the bargaining committee to attempt to reach agreement with Cochlear on this issue. His evidence is that each of the union’s proposals on this matter has sought to minimise disruption to production whilst reflecting the employees’ rights to be represented in negotiations. It is the evidence of Mr Ayres that, following the MSD, Cochlear had an obligation to accommodate the negotiations.
[75] Mr Ayres’ evidence is that Mr Howitt’s rejection of training for members of the bargaining committee involves a failure to recognise the role of the AMWU employee representatives in the bargaining process.
[76] It is Mr Ayres’ evidence that limiting the AMWU employee representatives to three has reduced the ability of those representatives to properly communicate with employees across the whole production workplace. A greater number of representatives would have better accommodated varied work and family arrangements.
[77] Mr Ayres rejects Mr Howitt’s evidence that the union had adopted an extremely litigious approach to bargaining. His evidence is that the AMWU wants to bargain not litigate.
[78] Mr Ayres’ evidence is that Mr Howitt’s proposed consultation methods would not give employees across different shifts and workgroups an appreciation of where bargaining is up to. Mr Ayres notes Mr Howitt’s evidence that there is little said about bargaining at the monthly meetings with employees. However it is the evidence of Mr Ayres, that it is nevertheless a presentation from the company’s position only. It is also his evidence that the deliberative process of the type of meetings sought by the union is essential to developing a position and assisting the progress of bargaining.
[79] Mr Ayres’ evidence is that the union has not brought proceedings to dispute the allocation of the Mural Room for right of entry visits because of a desire to reduce the amount of litigation between the parties. He rejects Mr Howitt’s evidence that the AMWU has not complained about the Mural Room and states that the union has requested access to the main lunchroom on numerous occasions.
[80] Mr Ayres’ evidence is that the union’s claim reflects its genuine approach in relation to Cochlear’s competitive position. It is not an ambit claim and seeks to consolidate existing terms and conditions together with increases in allowances to reflect past production dividends. Mr Ayres notes that the company has not provided an example of any productivity -related initiatives.
[81] Mr Ayres disputes Mr Howitt’s reason for the refusal for a paid meeting in February 2012 on the basis that there was little to report. He notes that the last joint paid meeting was in August 2009 and his evidence is that employees have a right to an update. Mr Ayres agrees that the union has communicated with its members by other means. However his evidence is that no method other than a meeting during work time is a proper means of consultation.
[82] Mr Ayres rejects Mr Jarman’s characterisation of the union’s claim for eight employee representatives on the bargaining committee as being an ambit claim. He refers to his earlier evidence as to the rationale for having a greater range of representatives.
[83] Mr Ayres refers to Mr Jarman’s evidence about the union’s allegations in early 2010 that Cochlear had breached its good faith bargaining obligations. Mr Ayres’ evidence is that there was no basis on which the union should have withdrawn those allegations. This was due to Cochlear’s refusal to bargain. Mr Ayres also rejects Mr Jarman’s evidence that the union’s allegations were spurious.
[84] Mr Ayres’s evidence is that the AMWU has put all of the proposals for inclusion in an agreement. The company and the EBRs have not responded in any meaningful way.
[85] Mr Ayres notes that he signed the Minutes for all but one of the bargaining meetings. His evidence is that, when he had taken issue with the Minutes, discussion about that point then took up a large part of the limited time for the meeting. Mr Ayres’ evidence is that he generally considered that it was better to sign and then get on with bargaining. He notes that the union maintained its own records of the meetings.
[86] Mr Ayres disputes Mr Jarman’s evidence that the issue of paid mass meetings was only raised at three meetings. Mr Ayres’ evidence is that the issue was discussed at at least six meetings.
[87] Mr Ayres disputes Mr Jarman’s view that there are significant differences between the positions of Cochlear and the EBRs. He refers in particular to the updated bargaining issues table provided by the company on 15 February 2012.
[88] Mr Ayres’ evidence is that he has no issue with providing a substitute to attend any bargaining meeting if he is unavailable and notes that this occurred on one occasion.
[89] Mr Ayres rejects Mr Hargraves’ evidence that there isn’t strong support among employees for an enterprise agreement. Mr Ayres refers to the MSD and earlier ballots and surveys. His evidence is that Cochlear does not want to bargain and is simply looking for an excuse.
[90] Mr Ayres notes Mr Hargraves’ evidence about the limited contribution of the delegates at bargaining meetings. His evidence is that the delegates feel anxious and are reluctant to speak up. It is Mr Ayres’ evidence that this reluctance was one of the issues which would have been addressed in the proposed training which the company opposed.
[91] Mr Ayres disputes Mr Hargraves’ description of the union’s response to the questions document as being of poor quality. It is the evidence of Mr Ayres that relevant answers were provided together with a draft agreement. Mr Ayres notes that he raised reservations about the questions at the 5th bargaining meeting.
[92] Mr Ayres rejects Mr Hargraves’ suggestion that the union could hold a meeting of employees at an external venue. It is Mr Ayres’ evidence that such a location would not maximise attendance and feedback.
[93] Mr Ayres gives evidence that the AMWU has suspicions that Cochlear has improper influence over the EBRs. Nevertheless the union has treated the EBRs as being independent. It is Mr Ayres’ evidence that the union does not have the contact details of the EBRs despite requesting such. It was in this context that the union expected that Cochlear would pass on to the EBRs material which the AMWU had provided to it. It is Mr Ayres’ evidence that this apparently happened sometimes but not always.
[94] Mr Ayres disagrees with Mr Hargraves’ evidence that paid meetings are not usual practice particularly at an early stage in negotiations. Mr Ayres’ evidence is that his requests for paid meetings have not been premature. He also notes that the length of the negotiations in this case makes the situation extreme, not usual.
[95] Mr Ayres rejects Mr Hargraves’ characterisation of the union’s claim. His evidence is that almost all of the claims come from the existing instruments covering employees and the claims reflect consultation with employees about what they want in an agreement. It is Mr Ayres’ evidence that the union continues to pursue its claims with Cochlear as shown in correspondence to the company dated 7 March 2012 requesting a serious response to the union’s proposals.
[96] In his oral evidence Mr Ayres indicated that he understood that the AMWU represents around 170 members at Cochlear. He is not aware of any other employees who have separately nominated the union to represent them in bargaining. Mr Ayres also testified that, through the MSD ballot, many more employees had indicated that they want the union to bargain on their behalf.
[97] Mr Ayres confirmed that it was the AMWU which had proposed that there be a legally enforceable protocol to govern the bargaining process. He testified that he did this to build Cochlear’s confidence that bargaining could be smooth and efficient. Mr Ayres testified that he had since concluded that there is little value in having agreed rules which have been applied in the way the Protocols have by Cochlear. It would be more sensible to rely on the provisions of the Act.
[98] Mr Ayres testified that Cochlear has used the Protocols to frustrate bargaining and he would be loath to enter further discussions about developing new rules. Mr Ayres has no confidence that the parties will be able to reach agreement on rules which will work. He has been disappointed in Cochlear’s approach.
[99] Mr Ayres testified that, in the usual course of events, he would have no difficulty with the concepts set out in the opening words of the Protocols, namely improving productivity, supporting job security and supporting the company’s competitive goals. Mr Ayres testified that his concerns have resulted from the way in which Cochlear has used those concepts as an obstacle to bargaining and, in his view, to ensure that agreement is never reached. His evidence is that Cochlear was not using the wording of the Protocols in a legitimate or genuine manner but rather as a delaying strategy. Mr Ayres testified that the company’s approach was not in the interests of good faith bargaining.
[100] Mr Ayres confirmed that the union wanted an agreement which supported the concepts referred to above and testified that this could be achieved without the existence of the Protocols. Mr Ayres testified that, absent the Protocols, Cochlear could still measure proposals against those concepts if it wished.
[101] Mr Ayres testified that the number of employee representatives who would be part of the union’s bargaining team was a significant issue about which there had been much discussion in the negotiations for the Protocols. However there was also a range of other issues in play in those negotiations.
[102] Mr Ayres testified that the AMWU still had issues about the number of union representatives who should be involved in the bargaining process. The union’s present proposal as set out in Exhibit AMWU 5, is that there should be two officials and five employees representing members in bargaining. Mr Ayres denied that the union was bargaining in bad faith by seeking this number of representatives.
[103] Mr Ayres testified that he believes that Cochlear has a responsibility to bargain with the group of employees who are part of any bargaining team as well as with the union officials. Mr Ayres rejected the suggestion that, in 2009, the AMWU had made ambit or excessive claims for greater numbers of representatives. His evidence is that the purpose of a larger group was to have a more effective and democratic communication process with employees.
[104] Mr Ayres rejected the suggestion that larger numbers of persons would necessarily lead to inefficiencies in bargaining. He noted that it was up to the company to decide the number of bargaining representatives it wanted. Mr Ayres testified that the availability of Mr Jarman for meetings had been a challenge as was the Protocols’ requirement that bargaining meetings be at least 14 days apart.
[105] Mr Ayres agreed that there were no physical impediments to employees in discrete work areas communicating with others in their particular area either during work time or during their various breaks. He testified that the work environment did not facilitate the type of deliberative discussions which were needed. Mr Ayres testified that, although the union did the best it could, its lines of communication with members at Cochlear were not effective enough for the purposes of bargaining.
[106] Mr Ayres testified that the union delegates at Cochlear could pass messages to and from the union. He acknowledged that members could be contacted by phone if they had provided their details to the union and noted that this was done from time to time. Communications could also be made by way of post, email and SMS however these methods were not as effective as having an exchange of ideas in the context of a meeting.
[107] Mr Ayres testified that, whilst it was physically and financially possible for the union to organise meetings at its offices or elsewhere offsite, this was not practicable in the context of bargaining especially for larger groups of members. Mr Ayres noted that meetings had been held on the nature strip in front of the premises, however these were somewhat confronting for attendees.
[108] Mr Ayres acknowledged that the union had communicated with members at Cochlear by way of flyers. He testified that this method of communication was more suited to dealing with a narrow range of issues in a simplistic fashion and was not effective in covering the complex matters that arise in bargaining.
[109] Mr Ayres confirmed that the AMWU is seeking access to the main lunchroom for meetings. His evidence is that both the Mural Room and another room previously provided for meetings are totally inconvenient and unsuitable. Mr Ayres testified that the meetings would not be restricted to union members and would be for the purpose of discussions about bargaining developments. Mr Ayres’ evidence is that, although the AMWU formally represents only its members, he wishes to achieve the strongest possible democratic mandate for its claims and for that purpose wants to hear the views of other employees. He testified that he is reluctant to have meetings just for members as people have informed him that they are frightened of what this might entail for their employment.
[110] Mr Ayres testified that he did not rule out the possibility that the issue of union membership may be raised and discussed in these meetings. He confirmed that increasing union membership was part of the union’s purpose in seeking these meetings but was not the driving reason which is to discuss bargaining.
[111] Mr Ayres testified that he had had reservations about signing the Minutes of some bargaining meetings. He noted that this was not a requirement of the Protocols and that, initially, Cochlear had insisted on unqualified agreement. He testified that the qualification which had been introduced later, had addressed some of his concerns and overcame the necessity to argue about the Minutes at each meeting with a consequent waste of time. Mr Ayres denied that he had refused to sign the Minutes because he didn’t want them posted on the noticeboard.
[112] Mr Ayres’ evidence is that the union did not always receive the Minutes prior to the next meeting. He testified that the Minutes reflected Cochlear’s view and were not independent. His evidence is that the union wanted decisions and outcomes recorded in the Minutes not just what the company had said. Mr Ayres agreed that he had a particular objection to a statement made by Mr Junday in the 3rd bargaining meeting concerning the number of employees he allegedly represented.
[113] Mr Ayres denied that the union had tried to exclude the EBRs from the bargaining process or that he considered the EBRs to be in competition with the union. Mr Ayres denied that the AMWU had deliberately not served its present application on the EBRs until after the issue was raised in these proceedings in March 2012.
[114] Mr Ayres denied that the union had repudiated the Protocols in order to make sensational public comment about the bargaining at Cochlear. He testified that he is not trying to make this issue into a test case but rather is attempting to reach a fair collective agreement with the company.
[115] Mr Ayres testified that, on a number of occasions, employee representatives of the AMWU had been unable to attend bargaining meetings because of various personal commitments. He noted that the requirement in the Protocols that the meetings commence at 2pm had been an obstacle at times. Mr Ayres agreed that it had not been the union’s practice to seek a temporary substitute for the representatives. He didn’t believe it was a good idea and considered that any such request would have been refused by Cochlear.
[116] Mr Ayres testified that the union wanted to have the opportunity to have discussions with delegates prior to the start of each bargaining meeting. His evidence is that this had been a difficulty as employees had only been available at 2pm which was the time for each meeting to start.
[117] Mr Ayres agreed that, at times, the AMWU had sought the deferral of meetings and, on one occasion, had cancelled a bargaining meeting. Mr Ayres denied that the delay between the company’s response to the union’s claim, 30 August 2011, and the union’s reply of 7 March 2012 was the union’s fault.
[118] Mr Ayres testified that, although he sees no value in the continued application of the Protocols or any other written agreement between the parties about the bargaining process, there would be no difficulty in the parties verbally arranging certain matters such as identifying in advance the names of persons to attend meetings, providing representatives with reasonable notice of meetings and agreeing on what is to be discussed at each meeting.
[119] Mr Ayres agreed that, prior to informing the company that the union was withdrawing from the Protocols, he had not sought to modify the Protocols nor had he sought to trigger the disputes clause therein.
[120] Mr Ayres testified that the AMWU had put the whole of its claims to Cochlear on 22 December 2010. The union then provided further particulars of one of the items in March 2011 and incorporated those particulars into the bargaining issues table.
[121] Ms Fortescue provided two witness statements. The first was dated 8 February 2012 and was marked Exhibit AMWU 7. The second statement was dated 7 March 2012 and was made in reply to the second statement of Mr Hargraves and the first statement of Mr Howitt. Ms Fortescue’s second statement was marked Exhibit AMWU 8. Ms Fortescue also gave oral evidence which is at PN 3163-3567 of Transcript.
[122] In her first statement Ms Fortescue gives evidence that she has had dealings with Cochlear since the mid 1990s and continues to have responsibility for the AMWU members employed by the company. She has attended all of the bargaining meetings since the MSD was made and has taken notes of each of them. Ms Fortescue has also taken notes at other meetings between the union and the company held between the MSD and the start of formal bargaining. The notes of all of these meetings are attached to Exhibit AMWU 7.
[123] Ms Fortescue’s evidence is that, between the nominal expiry of the 2005 Agreement and the commencement of the Act, the AMWU continually attempted to negotiate a new collective agreement with Cochlear. Her evidence is that Cochlear refused to negotiate and never accepted the union’s right to do so. Ms Fortescue’s evidence is that, in her opinion, the company’s application to terminate the 2005 Agreement was to gain support for a non-union agreement which had been twice rejected by employees.
[124] Ms Fortescue’s evidence is that she has contact with AMWU delegates and activists at Cochlear several times a week. Her evidence is that they tell her of the difficulties they encounter in being able to discuss union matters, including the progress of bargaining, with their fellow workers. These difficulties include the fact that Team Leaders have banned discussions about bargaining and unions during work time. Ms Fortescue’s evidence is that delegates and activists have told her that they feel intimidated by the Team Leaders’ actions. Some have informed Ms Fortescue that they have been told that having union discussions in work time is a disciplinary offence.
[125] Ms Fortescue gives evidence about her attendances at Cochlear pursuant to the right of entry provisions of the Act (ROE). Her evidence is that the area allocated to the union for this purpose, the Mural Room, is too small as it only accommodates approximately six persons. The overflow of members has caused complaints from other employees who are using the open meal area nearby.
[126] Ms Fortescue’s evidence is that the main problem with the Mural Room is that, because employees generally have a 30 minute lunch break, they do not have enough time to prepare their meals, attend to other personal needs, walk to the Mural Room and stay for the meeting. It is Ms Fortescue’s view that the Mural Room is unreasonable for ROE purposes. It is also her view that it is not suitable for informing employees about the progress of negotiations.
[127] Ms Fortescue’s evidence is that the AMWU has been obstructed by Cochlear when it has attempted to meet with members on the afternoon shift. These obstructions have included restricted access during a 10 minute break or the refusal of any access because of the absence of anyone to facilitate entry to the site. It is Ms Fortescue’s evidence that there has been an ongoing problem with ROE access to the premises.
[128] Ms Fortescue refers to her notes of the bargaining meetings and states that the union has been frustrated by Cochlear’s delays and failures to respond to the union’s proposals. She provides details of correspondence from Mr Hargraves in April 2011 which she says had the effect of further delaying bargaining for no useful purpose.
[129] It is Ms Fortescue’s evidence that the attendance of delegates or activists at proceedings in FWA has often been made difficult or indeed refused by Cochlear. She provides details of one such instance in December 2011. It is Ms Fortescue’s evidence that she is concerned that Cochlear’s attitude means that delegates will never be released for an urgent matter relating to their crucial role as part of the AMWU bargaining team.
[130] In her second statement Ms Fortescue responds to the first statement of Mr Howitt, Exhibit Cochlear 32 and to the second statement of Mr Hargraves, Exhibit Cochlear 22.
[131] Ms Fortescue refers to Mr Howitt’s evidence that the AMWU was not involved to any significant extent in negotiations for agreements between 2001 and 2005. Her evidence is that she attended several meetings leading up to the 2005 Agreement. It is also her evidence that she attempted to attend meetings prior to the making of the previous agreement in 2001 but her involvement was limited by Cochlear.
[132] Ms Fortescue disputes Mr Howitt’s evidence that it is only a two minute walk from any production area to the Mural Room. She also disagrees that the meal area adjacent to the Mural Room would be suitable for production employees. It is Ms Fortescue’s evidence that Mr Howitt has not taken account of the arrangement whereby, for social and cultural reasons, employees share in the preparation and consumption of food in the main lunchroom. Her evidence is that it is not an option for many employees to change lunchrooms or attend the Mural Room.
[133] Ms Fortescue gives evidence that, for several years especially since 2007, she has complained to Cochlear’s HR Department about employees being pressured not to discuss union matters during work time.
[134] In response to Mr Howitt’s evidence about the union’s access to members on afternoon shift, Ms Fortescue notes that, prior to October 2010, there was an arrangement whereby a Team Leader or supervisor provided access to the premises. It is Ms Fortescue’s evidence that there is no need for a production supervisor to escort the union representatives during ROE visits on the afternoon shift.
[135] Ms Fortescue rejects Mr Howitt’s evidence as to his reasons for refusing the release of delegates to attend FWA proceedings in December 2011. Her evidence is that it is not Cochlear’s role to decide whether or not a delegate is required. She notes the important representative function of delegates especially during bargaining.
[136] Ms Fortescue provides details of a request for the release of three delegates to attend proceedings in these matters. It is her evidence that the company’s response to this request demonstrates that timeliness of requests is not an issue. Ms Fortescue’s opinion is that Cochlear does not respect the role and rights of delegates in bargaining.
[137] Ms Fortescue refers to the evidence of Mr Hargraves that the union did not provide its proposal of 22 December 2010 to the EBRs. She notes that, despite requesting them, the union has not been provided with any contact details for the EBRs other than Cochlear’s street address. Her evidence is that it was expected that Cochlear would hand on any material it received to the EBRs. Ms Fortescue’s evidence is that, following the 4th bargaining meeting, the AMWU posted the material to the EBRs at Cochlear’s address even though an email address would have provided for easier contact.
[138] It is Ms Fortescue’s evidence that the AMWU has never received any written response from the EBRs. The only responses have been in the bargaining issues table provided by Cochlear at the 8th bargaining meeting.
[139] In her oral evidence Ms Fortescue stated that, in her experience, the lunch area near the Mural Room tended to be used by white collar staff rather than production employees. She agreed that there was no prohibition on production employees using that area.
[140] Ms Fortescue testified as to the difficulties with employees having to heat their food, make their way to the Mural Room and then eat their meals with only a small table in the room. She noted that it was a cultural practice for many of the employees to share their food which was usually heated. Ms Fortescue’s evidence is that employees have tended to eat in the main lunchroom first before attending a meeting. She described this as a real disincentive to such attendance. Ms Fortescue estimated that it would take three minutes to walk from the main lunchroom to the Mural Room.
[141] Ms Fortescue was not aware whether there were queues for the microwaves in the lunch area near the Mural Room or whether there were any managers’ offices near the Mural Room. Ms Fortescue agreed that the Mural Room was approximately three metres by five metres in size.
[142] Ms Fortescue testified that during some ROE meetings there have been employees gathered in and around the doorway of the Mural Room. She testified that there had been complaints from the white collar employees about the noise of production employees gathering for meetings. Ms Fortescue’s evidence is that, during 2010 or early 2011, there had been ROE meetings where employees who wanted to attend had not been able to fit into the room. She estimated that this had occurred in the majority of such meetings, perhaps 90% of them. Ms Fortescue’s evidence is that the number of people attending the meetings varied depending on the particular work group and the timing of the lunch breaks.
[143] Ms Fortescue agreed that there is an AMWU noticeboard in the main lunchroom. Her evidence is that, prior to the cessation of the Code of Practice, she used to place notices on the board informing the employees that she was going to be on site. She did not recall using it for about two years but was not aware whether the delegates had been utilising it.
[144] Ms Fortescue confirmed that, since August 2009, the AMWU had been seeking paid meetings with employees. She testified that, during that period, the union had organised a number of Sunday meetings with Cochlear employees at the AMWU offices. Usually part of the discussion at those meetings concerned bargaining with Cochlear as well as other union matters. Ms Fortescue estimated that attendance at those meetings ranged from six or seven employees up to 15. She had not been present at all of the meetings. Ms Fortescue’s evidence is that even during meetings with individual Cochlear employees the issue of bargaining is raised.
[145] Ms Fortescue testified that the union had organised meetings of members on the nature strip in front of Cochlear’s premises. Sometimes these included barbeques. Ms Fortescue estimated that, since August 2009, there had been about 10 meetings without barbeques and about five or six with barbeques. It is Ms Fortescue’s evidence that the latter are better attended. Her evidence is that between 20 and 50 employees have attended each of the “non barbeque” meetings over the period 11.15am to 1pm and about 100 employees have attended the “barbeque” meetings over the same time period. Ms Fortescue’s evidence is that the union tries to exchange information and have discussions about bargaining at all of the meetings.
[146] Ms Fortescue testified that, in the period since August 2009, she has had only irregular telephone discussions about bargaining with Cochlear employees.
[147] Ms Fortescue testified that there are around three or four AMWU delegates at Cochlear who are elected by the members. There are other members who see themselves as activists. Ms Fortescue’s evidence is that most delegates and activists are on the morning/day shift. Her evidence is that employees generally don’t mix outside of their immediate workgroups and she agreed that the AMWU had sought to have representatives across the production site.
[148] Ms Fortescue testified that, in the last couple of years, she had contacted Mr Mason and other delegates and activists via their mobile phones rather than by way of a fixed phone in Cochlear’s premises. Her evidence is that this contact has not been regular, perhaps monthly or at longer intervals. Ms Fortescue testified that some of these calls have included discussions about bargaining.
[149] Ms Fortescue testified that, on one or two occasions, she had sent group emails relating to bargaining to Cochlear employees. Her evidence is that she has not used this form of communication more frequently because of the non-English speaking background of most of the employees. Ms Fortescue testified that she does not use broadcast SMS. Her evidence is that the union’s organising unit may use that form of communication with Cochlear employees.
[150] Ms Fortescue testified that, prior to putting forward the draft agreement in December 2010, the AMWU made its best efforts to communicate with members to identify what they wanted in an enterprise agreement. This included the conduct of a survey. Her evidence is that members’ responses were then used by the union in formulating the draft. This document was also provided to members via their home addresses. It is Ms Fortescue’s evidence that she did not receive any negative responses to the draft.
[151] Ms Fortescue recalled the organising unit conducting a ballot of members at Cochlear. She testified that flyers and leaflets have sometimes been used to notify employees of ROE visits and union meetings and barbeques. Ms Fortescue testified that the organising unit members provide general information to employees at Cochlear and other workplaces. Her evidence is that they don’t engage in in-depth discussions about bargaining or other industrial issues.
[152] In her re-examination Ms Fortescue described the meetings at the union offices as “not really effective”, those on the nature strip with barbeques as “moderately effective”, those without barbeques as “a lot less effective” and the use of group emails as “not that effective”.
[153] Mr Mason provided a witness statement dated February 2012. This was marked Exhibit AMWU 10. He also gave oral evidence which is at PN 3716-3899 of Transcript.
[154] Mr Mason has worked at Cochlear for more than 12 years and has been an AMWU delegate for about seven years. At the time of making his statement he was working part-time because of family reasons. By the time he gave his oral evidence, 23 March 2012, he had returned to full-time work. He works on the morning/day shift.
[155] It is Mr Mason’s evidence that he tries to be a delegate for all of his colleagues however there are limited opportunities for discussion. Part of the reason is the staggered morning and lunch breaks for different groups with minimal overlap. It is Mr Mason’s evidence that employees spend their lunch breaks in different areas. His evidence is that the main lunchroom can accommodate all production employees at one time. The other meal area fits about 30 people.
[156] It is Mr Mason’s evidence that there is no notification on noticeboards or announcements when the union attends the site for ROE purposes. There is no staff email. Mr Mason’s evidence is that he informs as many people as he can that the union will be on site, however, employees have lots to do at lunchroom and they are aware of how crowded the meeting rooms become. His evidence is that many more employees would attend if the meetings were held in the main lunchroom. No one has told him that they don’t want the union in that lunchroom.
[157] Mr Mason’s evidence is that he only talks to his co-workers about bargaining or union matters during breaks. The only time he was able to talk about bargaining during work hours was about three years ago when he was a member of the Employee Consultative Committee (ECC). Mr Mason’s evidence is that views were expressed in a meeting of that committee about why there should not be negotiations with the union for a collective agreement. Mr Mason provided the union’s perspective on the issue to the meeting. His evidence is that he was later reprimanded by managers and told that he was not to talk about union matters during work time.
[158] It is Mr Mason’s evidence that he is often asked about the progress of bargaining and about employees’ terms and conditions. His evidence is that his co-workers have told him that they want to see increased wages, an increased clean room allowance and additional notice of shift changes in an enterprise agreement.
[159] Mr Mason understands that Mr Howitt conducts monthly meetings. He does not usually attend as they are often held on days he does not work. However, at one of those meetings that he did attend in late November 2011, Mr Howitt asked employees if they thought it was right that Cochlear had to spend money and resources attending FWA because the AMWU had withdrawn from the Protocols. Mr Mason’s evidence is that several employees later asked questions about the issues which he attempted to answer.
[160] Mr Mason attended three bargaining meetings in 2011, the 6th, 8th and 10th meetings. His evidence is that, at the 6th meeting, Mr Junday stated that he represented all of the non-union employees in Mulberry B. That is a room in which a particular product was made but is no longer in operation. Mr Mason’s evidence is that the union was not told whether Mr Junday had provided Cochlear with any bargaining authorisation notices other than for himself.
[161] Mr Mason’s evidence is that, at the 8th bargaining meeting, Mr Junday provided an updated bargaining issues summary. Mr Mason’s evidence is that this appeared to be a commentary on the union’s claim only and not a separate claim. His evidence is that one of the EBRs stated that he represented more than 100 employees. Mr Junday said that he represented employees who didn’t want to change what the company was doing. Again, the union was not informed whether the EBRs had provided any bargaining authorisations to Cochlear.
[162] Mr Mason’s evidence is that most of the discussion at the 10th bargaining meeting concerned the failure of the Protocols.
[163] Mr Mason’s evidence is that, during December 2011, he had heard that Mr Junday was asking employees if they were union members and, if the answer was no, requesting that they sign a sheet of paper.
[164] In his oral evidence Mr Mason agreed that, during 2011, he averaged two days a week and that this factor and his need to go outside the premises to smoke had both restricted his ability to talk to fellow employees about bargaining. Other impediments include the staggered breaks.
[165] Mr Mason testified that he has attended about five to seven ROE meetings since August 2009. He estimated that an average of about 20-30 employees went to those meetings but noted that he wasn’t aware of how many attended at times he was not there. Mr Mason testified that the meetings were very crowded with a number of people standing in the doorway and in the room itself.
[166] Mr Mason testified that he was aware of the AMWU noticeboard in the lunchroom but had stopped putting notices on that board as they were taken down.
[167] Mr Mason testified that he had spoken to fellow employees about bargaining on some occasions in his lunch breaks and outside the premises usually on his way home. He agreed Cochlear had not impeded him in this regard. Mr Mason testified that he estimated that he has only been able to discuss bargaining issues with about 10% of employees.
[168] Mr Mason testified that he can be contacted by phone during work hours through his Team Leader or supervisor. He agreed that he had received calls or SMS messages on his mobile phone from Ms Fortescue or other AMWU representatives to notify him when ROE meetings were to take place. Mr Mason testified that he then passed the message on to as many people as possible but noted that he could only retrieve these messages during his breaks.
[169] Mr Mason agreed that Mr Howitt spoke only briefly about bargaining at the monthly meeting in November 2011. Mr Mason testified that he had attended delegate training in around 2006. He agreed that part of that training included communication with fellow employees.
[170] Ms Fan provided a witness statement dated 7 March 2012. This statement was in reply to Mr Howitt’s first statement, Exhibit Cochlear 32. Ms Fan’s statement was marked Exhibit AMWU 11. She also gave oral evidence which is at PN 3904-4028 of Transcript.
[171] Ms Fan has worked at Cochlear for more than 15 years and has been an AMWU delegate for about two years. In her oral evidence she clarified that she works on the afternoon shift.
[172] Ms Fan provides evidence of difficulties which would arise from Mr Howitt’s suggestion that the union could organise meetings at lunch times or at the end of shifts. Her evidence is that employees don’t want to stay around at the end of their shifts as they have been working since early morning and often have personal commitments such as collecting children from school.
[173] Ms Fan also refers to the different lunch times for employees and the fact that there are different lunch areas. Her evidence is that the Mural Room is very small and a long way from where most employees have lunch. She informs employees when the union is to be on site but few go to the meetings as they have so much to do during lunch and the breaks are short. Ms Fan also refers to queues to use the microwave ovens. It is Ms Fan’s evidence that employees know that the Mural Room is too small to eat in and there is too little time in which to have discussions after eating.
[174] Ms Fan’s evidence is that more employees would be able to talk to the union about negotiations if meetings were held in the main lunchroom. Her evidence is that employees ask her what is happening with the agreement and are disappointed that bargaining is taking so long.
[175] Ms Fan’s evidence is that, during December 2011, she observed Mr Junday walking around the workplace talking to employees. Some employees told her that Mr Junday was asking them to sign a sheet of paper if they weren’t union members.
[176] In her oral evidence Ms Fan confirmed that she has attended most of the ROE meetings. She also confirmed that, during those meetings, the union representatives tell employees about what has been happening in the bargaining process. It is Ms Fan’s evidence that around 10 employees go to each of those meetings, however, the room is so small that not many can fit inside. Some stand around the door to listen. Ms Fan testified that some employees carry their lunch because they cannot sit down to eat. She also testified that some employees don’t want to go to the meetings and some are scared that the boss is watching.
[177] Ms Fan agreed that she had spoken to many employees about the bargaining. She testified that, when she was on morning/day shift, she would come in early and answer questions from other employees. Ms Fan’s evidence is that she would only be able to speak to four or five employees at that time each week and about three or four people each week during her lunch breaks.
[178] Ms Fan attended the 10th bargaining meeting in November 2011. She testified that she didn’t say anything at that meeting and felt nervous that the managers might be angry. Ms Fan’s evidence is that, prior to that meeting, she found out what was happening in the bargaining by speaking to Ms Fortescue or another AMWU representative.
[179] Ms Fan testified that she had attended delegate training courses which had included training about bargaining. She had tried to put them into practice at Cochlear. Ms Fan testified that she had been involved in discussions with the AMWU about what should be in the draft agreement. She had also talked to other employees about the claim.
[180] Mr Simon provided a witness statement dated 7 March 2012. This statement was in reply to Mr Howitt’s first statement, Exhibit Cochlear 32. Mr Simon’s statement was marked Exhibit AMWU 9. He also gave oral evidence which is at PN 3575-3626 of Transcript.
[181] In 2007 Mr Simon was the AMWU Organiser with responsibility for members at Cochlear. His evidence is that he made ROE visits at the company’s premises in 2007. These included one in May 2007 at which he was accompanied by another union employee, Mr Kyriacou.
[182] It is Mr Simon’s evidence that employees had three separate lunch breaks. The union’s practice was to hold a “mass meeting” in the main lunchroom with all employees at one time rather than moving from table to table. Mr Simon’s evidence is that employees were asked if they had any objection to this but no one ever raised any issues.
[183] Mr Simon’s evidence is that, during the visit in May 2007, Mr Howitt informed him that the Code of Practice did not permit a mass meeting. Mr Howitt and Mr Kyriacou had a separate discussion which Mr Simon did not hear. His evidence is that Mr Kyriacou later told him that he had queried why managers were in the lunchroom during the visit.
[184] Mr Simon’s evidence is that, other than Mr Howitt, no one appeared shocked or angry or raised any objection. Shortly after this visit Cochlear wrote to the then State Secretary of the AMWU withdrawing privileges under the Code of Practice.
[185] In his oral evidence Mr Simon denied that during the May 2007 visit, he had yelled when asking employees whether they were okay with a mass meeting. He could not recall either Mr Kyriacou or himself telling employees that they should be scared, or that they had a right to have a delegate present during meetings with management or that managers could be fined if they refused such a request.
[186] Mr Simon’s evidence is that he did not recall anyone from Cochlear, other than Mr Howitt, informing him that he was breaching the Code of Practice.
[187] Mr Simon agreed that he would have expected that the union’s organising unit would have been involved in discussions with Cochlear employees from time to time especially about bargaining.
[188] Cochlear called three witnesses: Mr Hargraves, Director - Workplace Relations of Australian Industry Group and bargaining representative for Cochlear; Mr R Jarman, Group General Counsel and bargaining representative for Cochlear; and Mr D Howitt, Senior Vice President, Manufacturing and Logistics for Cochlear.
[189] Mr Hargraves provided four witness statements. The first was dated 8 February 2012 and became Exhibit Cochlear 21. The second statement was dated 23 February 2012 and was marked Exhibit Cochlear 22. This statement is in reply to the first statements of Mr Ayres, Exhibit AMWU 2 and Ms Fortescue, Exhibit AMWU 7 and the statement of Mr Mason, Exhibit AMWU 10. The third statement of Mr Hargraves is dated 7 March 2012 and is in reply to the second statement of Mr Ayres, Exhibit AMWU 3. This statement of Mr Hargraves was marked Exhibit Cochlear 23. The fourth statement of Mr Hargraves is dated 17 April 2012 and was marked Exhibit Cochlear 24. Mr Hargraves also gave oral evidence which is at PN 4642-5786 of Transcript.
[190] In his first statement Mr Hargraves notes that he was appointed as a bargaining representative for Cochlear on 21 October 2009. He was involved in all of the meetings relating to the negotiation of the Protocols as well as all of the bargaining meetings.
[191] It is Mr Hargraves’ evidence that Cochlear considered the AMWU’s proposal that there should be protocols to govern the bargaining process and decided that there was merit in having rules to follow. These would impose a discipline upon the bargaining and make meetings more structured and orderly.
[192] Mr Hargraves’ evidence is that the relationship between the parties during the negotiation of the Protocols was good. Each had very different views on a range of issues and strongly advanced their respective views. Mr Hargraves’ evidence is that Cochlear has a strong commitment to the Protocols as they are sensible and logical and have resulted in a fair, efficient and workable process. Cochlear has always expected the parties to comply with the Protocols.
[193] It is Mr Hargraves’ evidence that the AMWU has never suggested that there should be any amendment to the Protocols. Cochlear’s offer to discuss potential variations has not been accepted or responded to by the union. Mr Hargraves’ evidence is that it was only in response to correspondence from himself on 7 September 2011 that the union provided any formal indication that it was not happy with the operation of the Protocols. Mr Hargraves noted that the AMWU has not sought to engage in the dispute resolution procedure set out in the Protocols. He also notes that, in his correspondence of 7 September 2011, he advised the union that its failure to comply with the provisions of the Protocols amounted to a breach of the good faith bargaining requirements of the Act.
[194] It is Mr Hargraves’ evidence that Cochlear remains committed to bargaining in accordance with the Protocols. The company is prepared to discuss and consider amendments to the Protocols however none have been proposed.
[195] Mr Hargraves' evidence is that, during the course of bargaining, there have been times when the AMWU has not complied with the Protocols. This failure has hindered progress on making a new agreement. Cochlear has informed the union of its breaches on each occasion.
[196] For example, the AMWU has failed to explain the rationale of some of its claims. This is especially important in the context of achieving the objective of the Protocols to support the company’s competitive goals, improve productivity and provide job security. This breach was specifically raised in correspondence from Cochlear to the union on 22 June and 25 November 2011 and is dealt with in the Minutes of the 4th, 7th and 8th bargaining meetings.
[197] A further example of the union’s behaviour has been its failure to ensure that its delegate bargaining representatives attended all meetings. The Minutes show that two delegates were absent from the 1st meeting, one from the 2nd, two from the 3rd, three from the 4th, two from the 5th, two from the 7th, one from the 8th and two from the 9th.
[198] It is Mr Hargraves’ evidence that the AMWU failed to notify Cochlear and the EBRs of agenda items within the requisite time frame and failed to arrive at the scheduled time for multiple bargaining meetings. Mr Hargraves’ evidence is that the union was between five and twenty minutes late for the 3rd, 4th, 6th, 7th, 8th, 9th and 10th meetings. The union was advised of its breaches in these respects in correspondence of 23 June 2011.
[199] Additional examples of the AMWU’s breaches of the Protocols include its notification of a bargaining dispute without any prior consultation with Cochlear and its failure to refrain from making unfair and sensational public comment about the course of bargaining. This second matter arises from comments of the union’s National Secretary and was identified to the union in correspondence dated 25 November 2011.
[200] It is the evidence of Mr Hargraves that, despite the breaches of the Protocols by the AMWU, the Protocols have assisted in the conduct of orderly negotiations. His evidence is that the union has raised a number of issues which, without the Protocols, may have caused negotiations to break down.
[201] These issues have included the AMWU’s failure to table its claims pursuant to the agreed bargaining issues table. Mr Hargraves’ evidence is that, on numerous occasions, the union attempted to cease using the table and adopted a completely different approach. This occurred in the union’s materials of 22 December 2010 which weren’t in the agreed format. Mr Hargraves notes that the AMWU initially refused to follow the agreed process but ultimately did so. He also notes that the union initially refused to provide its documentation to the EBRs but later agreed to provide copies. Mr Hargraves’ evidence is that the AMWU also failed to provide sufficient particulars of its claim in the updated table which it provided on 22 March 2011.
[202] A further example of the importance of the Protocols has been in relation to the union’s opposition to signing the Minutes. Mr Hargraves’ evidence is that Cochlear believed that signing the Minutes was important as without this there was the potential for the union to dispute or walk away from the Minutes. Mr Hargraves provides evidence of the union’s delay in signing the Minutes for the 1st through to the 7th bargaining meetings.
[203] Additional matters raised by the AMWU include allegations of inaccuracies in Minutes after they had been received and signed. Mr Hargraves specifically relies upon the union’s actions in this regard in the 6th bargaining meeting. Another issue is the repeated requests by the union for paid meetings with employees. Mr Hargraves refers in particular to correspondence from the union to Cochlear dated 8 March, 4 November and 5 December 2011 and to Cochlear’s responses thereto.
[516] The EBRs want bargaining to continue in accordance with the Protocols. They reject any inference or allegation that they have any inappropriate relationship with Cochlear or that their position as bargaining representatives has been manipulated or influenced by the company.
[517] The EBRs submit that they have been the victims of a campaign by the AMWU and various employees which has undermined their role in the bargaining process. Further, the allegations put against them in these proceedings has put them in a difficult position with their peers.
[518] The EBRs submit that there should not be any findings made which are critical of them. They have not breached the good faith bargaining provisions of the Act. They support the company’s submissions as to findings and orders which should be made.
ADDITIONAL SUBMISSIONS
[519] Ten days after I reserved my decision in these matters the Federal Court of Australia delivered judgment in an application for prerogative writs against the Full Bench in the Endeavour Coal matter: [2012] FCA 764. The parties in the present matters have been provided with the opportunity to make brief submissions on the judgment. The AMWU and Cochlear have availed themselves of that opportunity. The EBRs are content to rely on their earlier submissions.
STATUTORY FRAMEWORK
[520] The objects of the Act and of Part 2-4, which deals with enterprise agreements, both provide context for the specific sections which deal with good faith bargaining.
[521] Section 3 relevantly provides:
“The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
...............
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;”
[522] Section 171 provides:
“The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.”
[523] Division 8 of Part 2-4 deals with FWA’s general role in facilitating bargaining and contains the most immediately relevant provisions.
“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.”
[524] Section 229 concerns applications for bargaining orders. There is no dispute in these proceedings that subsection (1) has been met. Subsection (2) is not relevant and there is no issue concerning subsection (3). There are however issues about subsections (4) and (5). Those subsections provide:
“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.”
[525] Section 230 then sets out the circumstances in which a bargaining order may be made.
“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).”
[526] Section 231 sets out what a bargaining order must specify.
“231 What a bargaining order must specify
(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:
(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;
(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;
(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;
(d) such matters, actions or requirements as FWA considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.
(2) The kinds of bargaining orders that FWA may make in relation to a proposed enterprise agreement include the following:
(a) an order excluding a bargaining representative for the agreement from bargaining;
(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;
(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);
(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).
(3) The regulations may:
(a) specify the factors FWA may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and
(b) provide for FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.”
CONCLUSIONS
[527] Before addressing the question of whether the good faith bargaining requirements of the Act have been met, I need to consider some preliminary issues. The first concerns the prerequisites for making an application for a bargaining order as set out in section 229(4). In short, the subsection provides that an application may only be made if a bargaining representative has concerns that the good faith bargaining requirements are not being met, has given written notice of those concerns to relevant bargaining representatives, has given those representatives a reasonable time in which to respond and considers that there has been no appropriate response.
[528] The AMWU provided Cochlear with written notice of its concerns on 7 June 2011, 28 June 2011 and 5 December 2011. On each occasion the union requested a response, either within seven days or, in relation to the first notice, at the next bargaining meeting. In each instance Cochlear provided a response. Clearly the AMWU did not consider the responses to be appropriate. I am satisfied that section 229(4) has been met by the AMWU in respect of the concerns that it raised on the dates set out above.
[529] However Cochlear submits that, because the union has raised other concerns and allegations during the proceedings, it has not received proper notice of those matters or been given an opportunity to respond. It contends that, as a consequence, there is no jurisdiction to deal with those matters.
[530] The proceedings in relation to these applications have been very extensive. Parties have been given full and proper opportunities to respond to all issues that have been raised and have availed themselves of those opportunities. I am satisfied that, pursuant to section 229(5), in the particular circumstances of this case it is appropriate to consider all of the allegations which have been raised even if there have been some inadequacies in meeting the prerequisites of subsection (4) in relation to each and every one of them.
[531] I also consider that it is appropriate to consider proposed Order 5 sought by the AMWU which has arisen only in response to Cochlear’s 30 April 2012 proposal. In the circumstances it would not be reasonable to require the union to meet each of the prerequisites in respect of this issue and make a separate application. Similarly, I am satisfied that, although the EBRs did not receive formal notice of the allegations against them, it is nevertheless appropriate to consider the union’s application insofar as it applies to them.
[532] There is no suggestion that Mr Hargraves has not met the prerequisites for making his application. I note that he provided formal notice of his concerns in correspondence to the AMWU on 7 September 2011.
[533] The second preliminary issue I wish to consider is the question of witness credit. As indicated earlier, both the AMWU and Cochlear made submissions that the evidence of their respective witnesses should be preferred to that of the other party’s witnesses. In considering this issue it is important to note the context of the proceedings. The parties have come to the bargaining from very different positions and a great deal of the evidence, especially under cross-examination, concerned matters about which it would be quite reasonable for individuals to hold opposing but truthful views.
[534] I am generally satisfied that each of the witnesses was honest and attempted to provide their evidence truthfully. Each of the union’s witnesses and Mr Howitt were clear, firm and responsive in their evidence. At times both Mr Hargraves and Mr Jarman appeared to be reluctant to responsively answer questions under cross-examination. However, I gained the impression that this was due to excessive caution rather than any attempt to be evasive.
[535] There was some difference between the evidence of Mr Hargraves on the one hand and that of Mr Jarman and Mr Howitt on the other concerning the issue of whether the company had intended to include wages in any proposed agreement. However I do note the evidence of Mr Jarman that there were different views within Cochlear on this issue.
[536] The third preliminary issue to be considered is the Jones v Dunkel point concerning the absence of the EBRs, the company’s two human resources generalists and the Production Manager as witnesses in the proceedings. The Full Bench decision in Huang v Rheem (PR954993) helpfully summarises the relevant rules. After noting that it is a rule of “commonsense and fairness in relation to the fact finding process”, the Bench stated as follows:
“The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in that party's ‘camp'. However, the rule also extends to an unexplained failure to tender documents within the party's control. A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party's case: not an inference that the uncalled evidence would have been positively unfavourable to the party's case or positively favourable to the opposing party's case. A breach of the rule in Jones v. Dunkel may also result in a more ready acceptance of the opposing party's evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.” (@ para 33)(footnotes omitted)
[537] I am not satisfied that the EBRs were in Cochlear’s “camp”. The evidence shows that they were closer to the company than to the union but, in my view, that does not mean that it would have been natural for the company to have called them to give evidence. It is also of note in this regard that the EBRs were in effect, parties in the proceedings and could have decided to give evidence themselves.
[538] The fact that Ms Fitzhenry is no longer an employee does not mean that it would not have been natural for Cochlear to have called her to give evidence. There was nothing to suggest that the ending of the employment relationship was in any way acrimonious. It would have been helpful to have heard her evidence. In the circumstances I am prepared to draw an adverse inference from her absence. It needs to be emphasised however that the inference is that Ms Fitzhenry’s uncalled evidence would not have assisted Cochlear’s case. It goes no higher than that.
[539] Clearly Ms Leffler and Mr Lopez are current employees and within Cochlear’s “camp”. However, I am not sure that they could have provided anything other than peripherally relevant evidence.
[540] The fourth preliminary issue concerns the question of the number of employees who are represented by the EBRs and the number who are members of and represented by the AMWU. Much was made of this question by the AMWU and Cochlear. However the fact is that the EBRs and the AMWU are entitled to exercise all of the rights and responsibilities as bargaining representatives under the Act regardless of the numbers they represent. All of the bargaining representatives should recognise this as bargaining continues.
[541] I now turn to the main substantive issue in the proceedings: whether there has been any failure to meet the good faith bargaining requirements of the Act. The judgment of the Federal Court in Endeavour Coal sets out a detailed analysis of the operation of the good faith bargaining requirements: paragraphs 30 to 52.
[542] The Court concludes that, once a majority support determination has been made, an employer must approach bargaining with a genuine, or good faith objective to conclude an enterprise agreement if possible. A bargaining representative may be found to have not met the requirements of section 228(1) if there is a failure to put forward a proposal which may be acceptable. The Court notes however that parties are not required to bargain in any particular manner and that the requirements of section 228(1) are limited in scope by the provisions of subsection (2). Nevertheless, bargaining parties are obliged to genuinely participate in the process and cannot merely reject proposals put by other representatives. The Court notes that the legislative purpose of section 228(1) is to impose a requirement to not just bargain in good faith but to bargain to achieve an enterprise agreement, if possible.
[543] As will have become apparent from the summary of the evidence in these matters, the AMWU and Cochlear have had a rather difficult relationship for some time. Such a situation does not provide the best base for bargaining. Further friction has resulted from the fact that the parties appear to be approaching the process from very different, though understandable, angles. The AMWU is very experienced in negotiating in an industrial context. The evidence of Mr Jarman and Mr Howitt revealed more of a commercial negotiating approach. All of these factors have contributed to the extraordinary length and complications of the bargaining process thus far. The evidence shows that both parties have been responsible for delays in the process. In my view it is neither helpful nor necessary for me to apportion blame for particular delays.
[544] A consideration of all of the evidence and a close analysis of the bargaining leads me to conclude that, with one exception, Cochlear has not engaged in a course of conduct which offends the good faith bargaining requirements. The company has fought hard and has taken every procedural point however unfortunately, that appears to be a reflection of the adversarial nature of the relationship between the parties. I do not consider that Cochlear’s conduct in relation to the Protocols or its imposition of additional requirements such as the signing of the Minutes, has contravened the good faith bargaining requirements of the Act.
[545] However, I consider that Cochlear’s actions between December 2010 and July/August 2011 amount to a failure to respond to the AMWU’s proposal for an agreement in a timely manner. As the Federal Court Endeavour Coal decision makes clear, a bargaining party cannot be required to bargain in any particular way or to put any particular type of response. Clearly Cochlear’s approach of asking questions of the AMWU in order to understand the union’s claim is a kind of response and cannot be criticised. Similarly, the July/August 2011 response in itself cannot be attacked. It is a very minimal position but there is nothing intrinsically offensive in that.
[546] However, there was nothing in Cochlear’s response which could not have been put much earlier in 2011. Dragging out the process by refusing to put its response until after the EBRs had formally filled out the bargaining issues table just because that had been agreed was simply a case of putting process ahead of substance. The company knew by March that the EBRs did not intend to put any positive claim to which Cochlear would need to respond. The fact that the EBRs might have changed their minds is not the point. Any of the bargaining representatives might seek to add or remove claims or proposals during the process. That is bargaining.
[547] I realise that it is more than a year since the relevant conduct occurred and things have moved on, for example, the company has provided its April 2012 response. However that has not in effect “wiped the slate clean”.
[548] I am satisfied that by this conduct Cochlear has not met the good faith bargaining requirements, in particular, that set out in section 228(1)(d).
[549] Both Cochlear and the AMWU have refused to meet since November 2011. Each has indicated a preparedness to meet but only on their respective terms: the company insists that any meeting take place under the Protocols as varied by agreement and the union insists that meetings be held under the Act and outside of the Protocols. Both parties have provided good reasons for their separate positions and I am satisfied that those positions are genuinely held. In a technical sense both parties are at fault in refusing to meet and consequently each has contravened the good faith bargaining requirements in section 228(1)(a).
[550] I do not consider that Cochlear has acted unfairly in refusing to agree to requests for paid meetings. The evidence does not disclose any history of paid meetings. Indeed there has only been one such meeting previously and that was in lead up to the ballot for the MSD. I accept that Cochlear has not held meetings with employees in paid time of a kind which could be considered to have given rise to unfairness to the AMWU. Mr Howitt has made a brief mention of bargaining at two production meetings in 2011 and there has been some minimal discussion at an ECC meeting. By these actions Cochlear has not misused its position or disadvantaged the AMWU.
[551] I do not consider that the EBRs have interacted with employees in a manner which could be held to be meetings which give rise to unfair conduct. I accept that, on occasions, the EBRs may have held some discussions about bargaining with other employees, however, that is no different to the discussions which the AMWU delegates have had or could have had with employees.
[552] I am not satisfied that Cochlear has manipulated the number and the identities of the bargaining representatives. Clearly Mr Jarman had a preference for a smaller rather than a larger number however there is insufficient evidence that this preference was used by the company to prevent other employees from being nominated. There is evidence that some other employees might have been interested in participating in the process, for example, as indicated in Exhibits AMWU 14 and 27. However there is nothing to show that any were prevented from participating.
[553] Cochlear acknowledges that it has provided assistance to the EBRs throughout the course of the bargaining. In very many instances the provision of assistance to one bargaining representative and not to another would amount to a breach of the good faith bargaining requirements. However it needs to be remembered that the EBRs are apparently not experienced in industrial relations. The AMWU is very experienced. I do not consider that giving the EBRs administrative assistance including the provision of nomination forms or help to complete the bargaining issues table to be a problem.
[554] Cochlear’s arrangement by which the EBRs have been able to access legal advice and representation is somewhat unusual but not inappropriate in the particular circumstances.
[555] The only area where I consider that Cochlear may have crossed the line in relation to the EBRs concerns Exhibit AMWU 34. This document was apparently prepared by Ms Fitzhenry. I have already addressed the question of her absence as a witness and my preparedness to infer that her evidence would not have assisted Cochlear’s case. Without that evidence the basis of the document is unclear. It is headed as a draft. However it does appear to indicate that Mr Hargraves was to be contacted about briefing points for the EBRs. Mr Hargraves was not questioned about whether he was contacted and/or provided any briefing points.
[556] In my view it would be totally inappropriate for Cochlear to have provided the EBRs with briefing points. Such an action would go beyond providing administrative assistance and would amount to unfair and capricious conduct which undermines collective bargaining. However, in the absence of any questioning of Mr Hargraves on this issue I am not prepared to make such a finding.
[557] Several observations should be made about the question of the AMWU’s access to employees and the allied issue of access to the main lunchroom. I agree that the union has a number of different ways in which it can contact its members. However, methods such as telephone access either for calls or SMS are not practical in the context of discussing bargaining issues with a large group of employees especially where there is such a diversity of linguistic backgrounds.
[558] Email access might be suitable in an office situation where every employee has a computer terminal on their desk and has the opportunity to spend their breaks considering and responding to non-work related material sent to them. I accept that Cochlear’s main lunchroom contains some computers which are available for the use of employees. However, the sheer number of employees and the limited length of the breaks as well as the language issues does not make email access very practical in a bargaining context.
[559] Other methods such as flyers, letters, questionnaires and meetings on the nature strip have their uses but are not suitable for a discussion of bargaining issues especially in the context of this particularly complex process.
[560] I agree that the AMWU has not used its ROE powers as much as it could have during the period of bargaining, however, that appears to be due to difficulties with the Mural Room. My observation of the Mural Room is that it is not suitable for the purpose of bargaining discussions especially where, at the same time, employees need to also consume their meals which are often hot. It is not appropriate from a health and safety perspective that any employee should need to eat a hot meal while standing.
[561] The Training Room was not under consideration at the time of the inspection and there was no evidence about it. Consequently, the only observation as to its suitability which I am able to make is from the plans which are at Annexure How6 to Exhibit Cochlear 32. From a very rough comparison it appears to be about three times larger than the Mural Room and it has the same proximity to the nearby lunch area as that room. However, it suffers from the same problem as the Mural Room of being two to three minutes away from the main production areas. That period of time is important in the context of a 30 minute lunch break.
[562] I accept that there are production employees who may not wish to be involved in discussions with the AMWU. The evidence is that the main lunchroom is also used by non-production employees for whom this bargaining process is not relevant. Both of those factors are relevant in considering whether Cochlear has been unfair in refusing the AMWU access to the main lunchroom.
[563] The existence of two lunch areas goes both ways in considering this issue. Just as the second area could be used by employees who want to meet with the union, it could also be used by those who do not.
[564] All in all, I consider that Cochlear’s refusal of access to the lunchroom to be unfair conduct in contravention of section 228(1)(e).
[565] The next issue concerns Cochlear’s refusal at this time to seek DEEWR’s advice about its proposed dispute settlement procedure which is contained in the company’s April 2012 position. Two points are worth noting. First, the question is not whether the proposed clause meets any particular requirements of the Act. It is whether or not it complies with the Fair Work Principles. The answer will have a potential impact on Cochlear’s ability to continue to supply products under contract to the Commonwealth government. It will not of itself affect the issue of approval of any agreement under the Act. The second point is that Cochlear, and the other bargaining representatives, cannot be required to make concessions during bargaining or reach agreement on terms which are to be included in an agreement.
[566] I accept that Cochlear has taken its stance in relation to this issue as part of its bargaining strategy. However frustrating this may be it is not unfair or capricious conduct.
[567] I now turn to consider Mr Hargraves application. The question of whether or not the AMWU has acted in a manner which does not meet the good faith bargaining requirements largely rest on the status of the Protocols. If the Protocols are binding as submitted by Cochlear, the union’s actions in relation to them, especially its failure to renegotiate their terms and its unilateral withdrawal from them, would probably amount to capricious and unfair conduct undermining collective bargaining.
[568] I have carefully considered Cochlear’s submissions as to the effect of the Protocols. However, in my view, they do not amount to a binding contract between the parties but are merely administrative rules or arrangements which were supposed to assist in the bargaining process. I accept the evidence of Mr Ayres that, instead, the Protocols have become an impediment to bargaining.
[569] It is true that it was the AMWU which first proposed the idea of some type of bargaining protocol however, what was ultimately agreed upon was a very different document. On the face of it the Protocols were freely entered into by all parties although I note Mr Ayres’ evidence as to his hesitation to agree to them. Nevertheless, that does not mean that the Protocols should apply in perpetuity. I am satisfied that the union gave the Protocols a reasonable chance to succeed. It would be a different situation if the AMWU had withdrawn from the Protocols after only one or two meetings, however, bargaining took place under them for over a year during which there were ten bargaining meetings and a vast array of bargaining-related correspondence.
[570] Of course it is true that the AMWU could have sought to renegotiate the Protocols. However, in view of the length of time it took to agree upon the document in the first place, I share Mr Ayres’ pessimism about the value of any attempt to vary the Protocols.
[571] I am not satisfied that the AMWU’s conduct in withdrawing from the Protocols is action which contravenes section 228(1). It should be noted that, even if I had decided otherwise, I would not have exercised my discretion to issue the order sought by Mr Hargraves. The Protocols contain too many areas of potential disputation for them to be appropriate as an order of this Tribunal and, in my view, it would not be reasonable to make an order which imposed them.
[572] I recognise that in removing the Protocols from the bargaining process the parties will need to reach some accommodation about basic issues such as when and where they will meet and who will attend meetings. However I am sure that suitable arrangements will be made. If there are ongoing difficulties the parties can approach FWA for assistance.
[573] I now turn to consider whether I should make any bargaining orders, either in the form sought or otherwise. There is no issue that an application has been made and that a majority support determination is in operation. For the reasons set out earlier I am satisfied that the provisions of section 230(3) have been met. I am also satisfied that it is reasonable in all of the circumstances to make orders as indicated below.
[574] I am prepared to make Orders 1 and 2 as set out in paragraph 9 above.
[575] I do not consider that it would be reasonable to make Order 3. I have not found Cochlear’s refusal to agree to requests for paid meetings to be unfair. In the light of that conclusion and the absence of any history of paid meetings it would not be appropriate to make such an order especially for paid meetings on a regular monthly basis.
[576] Nevertheless I am concerned that it appears that the employees have been provided with very little information and feedback on the whole bargaining process. Although there is nothing at the moment on which the employees are required to cast a vote, I consider that there is a need for them to be informed and consulted. For that reason I recommend that Cochlear grant the AMWU one half hour paid meeting with employees on each shift to discuss collective bargaining. That meeting should be held within four weeks of the date of this decision. The company may wish to hold a similar meeting. It might be useful if an arrangement similar to that used prior to the MSD was adopted.
[577] I am prepared to make an amended version of Order 4. I have found that Cochlear’s refusal to allow the AMWU access to the lunchroom to be unfair conduct. However, I also recognise that there needs to be a balance between the union, its members and other employees who are prepared to participate in discussions, those employees who wish to enjoy their breaks free from unwanted interruption and Cochlear’s obligation to provide appropriate eating facilities.
[578] I intend to order access to the main lunchroom alternating with access to the Training Room. The first meeting under this regime will take place in the lunchroom. The undertaking proposed by the AMWU should provide some degree of comfort to Cochlear. The undertaking would only be relevant for meetings in the lunchroom.
[579] I am not prepared to make Order 5. I have not found that Cochlear’s conduct in relation to the DEEWR issue to be unfair or capricious. However I recommend that the company reconsider its position of not putting the proposed clause to DEEWR unless the union agrees to it.
[580] I do not intend to make Orders 6 or 7 as I do not consider that they would be appropriate at this time. Obviously if the parties have any issues arising from the Orders they are at liberty to apply generally.
COMMISSIONER
Appearances:
C Howell of Counsel with T McCauley of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
S Wood Senior Counsel, T Saunders of Counsel, with M Mead and P Salewicz of The Australian Industry Group
P Brown solicitor, for the two employee bargaining representatives.
Hearing details:
2012.
Sydney.
February 7,
March 19, 20, 21, 22, 23 and 30,
April 13, 18 and 30,
May 2, 3, 4, 7, 21 and 31,
July 9.
Inspections:
2012.
Sydney.
March 21.
Final written submissions:
2012
July 27.
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