"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Detmold Packaging Pty Ltd

[2013] FWC 9095

[2013] FWC 9095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order
s.483AA - Application for an order to access non-member records

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Detmold Packaging Pty Ltd
(B2013/1404)

Application/Notification by Ralph, Kevin
v
Detmold Packaging Pty Ltd
(RE2013/1740)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 20 NOVEMBER 2013

Application for a bargaining order and an application for an order to access non-member records - allegations of vote stacking and inappropriate agreement voting practices.

[1] On 7 November 2013 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged an application pursuant to s.229 of the Fair Work Act 2009 (the FW Act) in which it sought a bargaining order against Detmold Packaging Pty Ltd (Detmold) with respect to its South Australian operations. The hearing of this application was deferred to 18 November 2013 to accommodate the parties. On 17 November 2012 Mr Ralph of the AMWU lodged a further application pursuant to s.483AA of the FW Act, through which it sought access to non-member records for Detmold employees in South Australia. By request of the AMWU, the two matters were joined.

[2] At the hearing on 18 November 2013 the AMWU was represented by Mr Hardie and by the AMWU National Secretary (Print) Ms Cassin. Detmold was represented by Mr Luke, of counsel, pursuant to a grant of permission under s.596(2) of the FW Act.

[3] Before setting out the AMWU claims, I have briefly outlined the background to the applications.

[4] In, or around June 2013 Detmold made some employees redundant. As at that time Detmold had some 10 casual employees.

[5] The Detmold Packaging (SA) Enterprise Agreement 2010 (the current Agreement) achieved its nominal expiry date on 31 July 2013. The parties have not, as yet, been able to reach a replacement agreement. An AMWU s.240 application, lodged in September 2013 was the subject of conciliation with me. This matter related to employee representation and, in particular, the role of an employee, Mr Murdoch, as an employee representative. The parties endorsed the provision to employees of a statement I issued, together with a new notice of employee representational rights. The actual issuing of this material was complicated by information provided to employees by some Detmold managers in a manner inconsistent with that agreed upon in the conciliation proceedings. As a result, the Detmold Human Resources Manager, Mr Jeffries and the AMWU South Australian Secretary (Print), Mr Larner undertook meetings with employees to confirm representation arrangements.

[6] Detmold, the AMWU and Mr Murdoch, representing a number of employees have had various meetings directed towards achieving agreement. A protected action ballot is in the process of being conducted. Ms Cassin was part of an AMWU delegation which met with Detmold in late October. Soon after that, Detmold advised that it would convene a ballot of its employees with respect to its proposed agreement. That ballot is being conducted by the Australian Electoral Commission (AEC) and is set to close on 29 November 2013.

[7] The two applications reflect AMWU opposition to the conduct of that ballot.

[8] In its s.229 application the AMWU seeks orders that the vote be stopped and that Detmold be required to provide to the AMWU a list of all casual staff on the roll of voters, together with information about commencement dates and working hours. Additionally, the AMWU sought a list of any staff said to be on a common law contract. The AMWU sought further orders stopping any vote until it had agreed with Detmold on the list of voters. Finally, the AMWU sought orders to stop Detmold further casualising its workforce without the consultation required by the current agreement and to stop Detmold from "stacking the voting" through recently recruited employees.

[9] In essence, the AMWU position was that Detmold was engaging casual employees to manipulate the vote and that it was also involving in the voting process, employees who could not be covered by the Agreement.

[10] The s.483AA application was made in support of the s.229 application. The AMWU has asserted that it has a reasonable suspicion that Detmold is engaging in capricious or unfair conduct that undermines freedom of Association or collective bargaining contrary to the requirements of s.228 such that entry rights should be granted so as to enable it to ascertain for its self, the standing of all of the employees involved in the current vote.

[11] The Detmold position is that the jurisdiction to countenance a s.229 order, or a s.483AA order in these circumstances does not exist, and that in any event, no basis for orders of this nature has been established. The Detmold position is that any concerns relative to the appropriate approval process should be addressed at the time an agreement is lodged for approval and that no contravention of the FW Act has occurred or is apparent.

[12] I note that Detmold declined a proposal I put to the parties that it might provide details of the roll of voters to me for consideration on a confidential basis. No explanation of its position in this respect was sought, or provided. Despite the request from the AMWU that I should draw my own conclusions from this position, I do not consider that it represents a factor that I should take into account in determining this matter because the Detmold position could have been based on any number of reasons.

[13] The evidence of Ms Cassin was that she endeavoured to bring the long-running agreement negotiations to a conclusion in late October and put a revised AMWU position to a negotiating meeting. Detmold responded to this by confirming its disparate position such that no agreement was achieved. Detmold subsequently agreed that its decision maker, Mr Sullivan would meet with Ms Cassin on the following day. Ms Cassin formed the view that Mr Sullivan was not interested in pursuing an agreement but was instead focused on "de-unionising" the Detmold workforce. Ms Cassin agreed that, in the discussions with Detmold management she sought Detmold agreement to the AMWU convening meetings in work time with its members, but that this request was refused. Ms Cassin drew attention to Mr Murdoch's capacity to meet with the Detmold employees he was representing in work time.

[14] Mr Black is a Detmold AMWU delegate. His evidence went to concerns over Detmold’s compliance with the current agreement provisions in order to minimise the number of redundancies and provide advice of the engagement of additional casual employees. Mr Black advised that he now understood that Detmold had 25 casual employees and that this increased number gave rise to employee concern given the June 2013 redundancies.

[15] Mr Black advised that some employees had expressed concern that Mr Murdoch was being imposed as a bargaining representative on new casual employees. Further, that he was concerned over Detmold's references to the Graphic Arts Award of 2003 and the Metal Industry (SA) Award as "no longer operational". He indicated that some employees had expressed concern that recently appointed casual employees had an equal agreement vote alongside long serving employees. Finally, Mr Black indicated that one employee had told him that he or she had been advised by Detmold management that, if the Detmold agreement proposal was rejected, casual work opportunities could be reduced.

[16] Detmold called no evidence in the matter.

Findings

[17] Section 229 operates within Part 2-4 of the FW Act. This Part is about Enterprise Agreements. It deals with the making of agreements, representational rights and issues and approval arrangements.

[18] Section 228 describes the conduct required of bargaining representatives in the negotiation process. This prescribed conduct does not mandate that agreement must bereached nor precludes any party from ‘hard bargaining’. It does however, mandate conduct during the bargaining process.

[19] Section 230 establishes that the Fair Work Commission (FWC) may make a bargaining order on application provided certain requirements are met and the FWC is satisfied that making such an order is reasonable in all the circumstances. The object of bargaining orders is generally to ensure fairness in the bargaining process.

[20] Section 229 sets out who can make an application. The AMWU in this case is able to do so as a bargaining representative. That section establishes times when which applications may be made. As the current agreement has achieved its nominal expiry date but no replacement agreement has been agreed as yet, an application of this nature may be made.

[21] Section 229(4) and (5) state:

“229 Applications for bargaining orders

....

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) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.”

[22] Two mandatory preconditions therefore apply. In order for an application to be made, the AMWU must articulate concerns that Detmold or Mr Murdoch have not, or are not meeting the good faith bargaining requirements in s.228, or that the bargaining process is not proceeding efficiently because there are multiple bargaining representatives, and establish that Detmold or Mr Murdoch have not responded appropriately to these concerns. I note that the remaining prerequisites are of a discretionary nature.

[23] On 6 and 7 November 2013 the AMWU wrote to Detmold expressing concern about allegations of "vote stacking" and asking whether any employees on common law contracts would be included in the vote. The AMWU requested a response from Detmold in this respect. No indication of a response has been provided to me.

[24] On the evidence before me it is clear that the AMWU is not suggesting that Mr Murdoch is disrupting the negotiation process. The evidence of Ms Cassin was that Mr Murdoch's position in the negotiations was reasonably close to that of the AMWU. I am not satisfied that Mr Murdoch’s capacity to meet with employees is disrupting the bargaining process and the concerns reiterated by Mr Black have not been established to me as anything other than rumours, given that Mr Murdoch’s standing was addressed in the earlier s.240 process.

[25] There is no prohibition on Detmold seeking to have its employees vote on an agreement proposal. 1

[26] The evidence before me simply does not support the AMWU assertion that Detmold is engaging casuals in order to "stack the vote". To the extent that casuals are Detmold employees, the FW Act requires that they have an equal vote on an agreement proposal. There is nothing, apart from the unsubstantiated AMWU concerns, that indicates that Detmold is asking persons who will not be covered by the Agreement to vote on it.

[27] Consequently, I consider that there must be significant doubt that the AMWU has met the prerequisite test in s.229(4) in order to make the application. However, given the circumstances of this matter I have accepted the application is validly made and have considered it on its merits.

[28] Section 228 states:

“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.”

[29] On the evidence before me, I am not satisfied that the Detmold behaviour represents a breach of the good faith bargaining requirements such that a bargaining order is appropriate in these circumstances. Detmold has met with the bargaining representatives, and there is nothing that indicates that it has failed to disclose information relevant to the negotiations or that it has failed to give genuine consideration to those proposals in responding to them. The simple fact is, that on the evidence before me, Detmold are seeking to establish whether a majority of employees, to be covered by the agreement, support its proposed version of that agreement. The matters raised by the AMWU in this application appear to have far more to do with how that vote is and should occur than they have to do with the negotiation process to date, or negotiations that may continue in the future.

[30] Section 230 states:

“230 When the FWC may make a bargaining order

Bargaining orders

(1) The FWC 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) the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

(2) The FWC 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) The FWC 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).”

[31] On the evidence before me I am not satisfied that Detmold have not or are not meeting the good faith bargaining requirements, and I do not consider that it would be reasonable to seek to stop the vote process which has commenced.

[32] I note that s.255 states:

“255 Part does not empower the FWC to make certain orders

(1) This Part does not empower the FWC to make an order that requires, or has the effect of requiring:

(a) particular content to be included or not included in a proposed enterprise agreement; or

(b) an employer to request under subsection 181(1) that employees approve a proposed enterprise agreement; or

(c) an employee to approve, or not approve, a proposed enterprise agreement.

(2) Despite paragraph (1)(a), the FWC may make an order that particular content be included or not included in a proposed enterprise agreement if the order is made in the course of arbitration undertaken when dealing with a dispute under section 240.

Note: The FWC may only arbitrate a dispute under section 240 if arbitration has been agreed to by the bargaining representatives for the agreement (see subsection 240(4)).”

[33] I also note that s.188 states:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

[34] While there is substantial flexibility open to an employer to determine the manner in which the vote on an agreement proposal should occur, it is absolutely clear that, if persons who are not to be covered by an agreement are included in such a vote, the FWC may conclude that there is no genuine agreement. This is a matter for consideration as part of any agreement approval process. In the event that the AMWU establish that the employees have not genuinely agreed to the Detmold agreement proposal, opposition to the approval application may then be argued.

[35] Alternatively, another application, with evidence of non-compliance with good faith bargaining requirements may be bought to the FWC either before the current vote concludes, or, in the event that the current vote rejects the Detmold agreement proposal. That application would necessarily be considered on its merits. Such a circumstance might include a refusal by Detmold to engage in further discussions following rejection of its current proposed agreement.

[36] I have considered the s.483AA application. This section states:

“483AA Application to the FWC for access to non-member records

(1) The permit holder may apply to the FWC for an order allowing the permit holder to do either or both of the following:

(a) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, specified non-member records or documents (or parts of such records or documents) under paragraph 482(1)(c);

(b) require an affected employer to produce, or provide access to, specified non-member records or documents (or parts of such records or documents) under subsection 483(1).

(2) The FWC may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, the FWC must have regard to any conditions imposed on the permit holder’s entry permit.

(3) If the FWC makes the order, this Subdivision has effect accordingly.

(4) An application for an order under this section:

(a) must be in accordance with the regulations; and

(b) must set out the reason for the application.”

[37] Relevantly, s.482(1)(c) states:

“482 Rights that may be exercised while on premises

Rights that may be exercised while on premises

(1) While on the premises, the permit holder may do the following:

....

(c) require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document (other than a non-member record or document) that is directly relevant to the suspected contravention and that:

(i) is kept on the premises; or

(ii) is accessible from a computer that is kept on the premises.

Note 1: The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2: The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.”

[38] Section 481(1) states:

“481 Entry to investigate suspected contravention

(1) A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:

(a) whose industrial interests the organisation is entitled to represent; and

(b) who performs work on the premises.

Note 1: Particulars of the suspected contravention must be specified in an entry notice or exemption certificate (see subsections 518(2) and 519(2)).

Note 2: The FWC may issue an affected member certificate if it is satisfied that a member referred to in this subsection is on the premises (see subsection 520(1)).”

[39] For the reasons I have outlined, I can discern no contravention that requires inspection or interviews at the present time. Accordingly, I am not satisfied, on the material before me, that an order of this nature should be made.

Conclusion

[40] For the reasons I have expressed the applications made under ss.229 and 483AA are refused. An Order (PR544761) dismissing these applications will be issued.

Appearances:

T Hardie for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

K Luke counsel for Detmold Packaging Pty Ltd.

Hearing details:

2013.

Adelaide:

November 18.

 1   See Tahmoor Coal [2010] FWAFB 3510

Printed by authority of the Commonwealth Government Printer

<Price code C, PR544737>