Boral Resources (NSW) Pty Ltd T/A Boral Concrete v Transport Workers' Union of Australia-New South Wales Branch
[2010] FWA 6249
•3 SEPTEMBER 2010
Note: An appeal pursuant to s.604 (C2010/5008) was lodged against this decision - refer to Full Bench decision dated 1 November 2010 [[2010] FWAFB 8437] for result of appeal.
[2010] FWA 6249 |
|
DECISION |
Fair Work Act 2009
s.240—Bargaining dispute
Boral Resources (NSW) Pty Ltd T/A Boral Concrete
v
Transport Workers’ Union of Australia-New South Wales Branch
(B2010/2884)
COMMISSIONER HARRISON | SYDNEY, 3 SEPTEMBER 2010 |
Bargaining dispute - dispute settling procedure - consultation clause.
[1] This is an application by Boral Resources (NSW) Pty Ltd (Boral) pursuant to s.240 of the Fair Work Act 2009 (the Act) for the Tribunal to deal with a bargaining dispute between itself and the Transport Workers’ Union of Australia-NSW Branch (TWU).
[2] The matter was the subject of conciliation conferences on 30 April and 24 June 2010. Following the failure of the parties to reach agreement both Boral and the TWU agreed that the Tribunal arbitrate over two outstanding issues remaining in their negotiations concerning a proposed enterprise agreement.
[3] It is agreed the outstanding issues are:
1. Whether an enterprise agreement under the Act can empower FWA to arbitrate disputes relating to:
a. a matter pertaining to the relationship between the employer and employees covered by this agreement that is not a matter arising under the agreement; and/or
b. an Award matter;
2. The particular terms of the dispute settling procedure to be included in the proposed enterprise agreement; and
3. The particular terms of the consultation clause to be included in the proposed enterprise agreement.
The parties submitted written submissions and a witness statement consistent with an agreed timetable prior to proceedings.
[4] The matter was heard in Sydney on 19 August 2010. Mr B Miles of counsel with Mr N Chadwick appeared for Boral and Mr A Hatcher of counsel with Mr O Fagir appeared for the TWU. Mr G Masters, Driver and TWU Delegate, presented evidence and a sworn statement tendered as Exhibit H1.
[5] I turn firstly to the Dispute Resolution Procedure (DRP). Boral submitted that the wording of the proposed DRP by the TWU is not able to be included in the proposed agreement.
[6] The clause proposed by the TWU is as follows:
“If a dispute relates to:
(a) a matter arising under this Agreement; or
(b) a matter pertaining to the relationship between the employer and employees covered by this Agreement; or
(c) a NES or Award matter;
this clause sets out procedures to settle the dispute.”
[7] Boral submitted that an enterprise agreement under the Act cannot empower this Tribunal to deal with matters not arising from an enterprise agreement for the following reasons:
a) at issue is the question whether a dispute settling procedure can deal with disputes about matters that could have been included as part of an enterprise agreement, but were not;
b) the Act has adopted an agreement based system, at the enterprise level, whereby the employer, the employees and their representatives retain responsibility for determining the terms and conditions of employment;
c) the purpose of enterprise agreements is to set out what the parties agree are their rights and obligations and to settle those rights and obligations for the duration of the agreement;
d) the rights and obligations in an agreement can only be varied with the express agreement of the parties. There are no provisions for bargaining in relation to a variation and FWA is expressly precluded from arbitrating a variation to the agreement - s.217(3);
e) FWA may deal with a dispute by arbitration only if FWA is expressly authorised to so under the Act - s.595(3);
f) if an enterprise agreement makes no provision for a matter, the presumption is there was no intention to make a provision - either it was not agreed or it was not even proposed;
g) FWA cannot make a decision inconsistent with the Act or the enterprise agreement - s.739(5). For FWA to arbitrate about matters not dealt with by the enterprise agreement is in substance to vary the agreement and making a decision about such a matter is inconsistent with its absence from the enterprise agreement;
h) it follows that an enterprise agreement cannot empower FWA to deal with matters not arising from agreement as such a provision would be:
i) inconsistent with the Act; and
ii) inconsistent with the absence of the matter from the enterprise agreement.
[8] Boral submitted that the intent of the TWU is to reagitate matters that have already been rejected in bargaining. “We say that is the essence of bad faith, that this provision is entirely contrary to the manner in which parties should conduct themselves in negotiating agreements.” 1
[9] In summary, the issue for Boral is whether the DRP should go beyond matters arising under the Agreement or the NES and extend to any Award matter or matters pertaining to the relationship between Boral and its employees. It is concerned that the Tribunal will arbitrate on issues not included in the agreement and alleges the TWU want unlimited discretion to raise other issues after an agreement is made.
[10] The TWU argued that the Act places no limit on the scope of a permissible DSP and referred to the Explanatory Memorandum of the Fair Work Bill at paragraph 2733 thus:
“Modern awards and enterprise agreements must include a term providing a procedure for settling disputes about matters arising under the modern award or enterprise agreement (as the case may be) and in relation to the NES (these requirements are set out in clause 186 for enterprise agreements). A modern award or enterprise agreement may also provide a procedure for settling other disputes at a workplace. This Division will also apply to those matters. [Emphasis added].
[11] It was submitted that if Parliament had intended to limit DRPs to the application of an agreement it would have said so.
[12] Whilst s.217A of the Act provides for the Tribunal to vary an agreement in limited circumstances it prevents arbitration of disputes about variations of an agreement.
[13] Section 739(4) of the Act empowers the Tribunal to deal with a dispute by arbitration in accordance with the term of an enterprise agreement yet places a limit to the power in subsection (5) which provides:
“(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.”
[14] It was said that Boral has misinterpreted the TWU position and that the limitations to arbitration ought to be a reassurance to them.
“So rather than this being some source of attack upon our provision, one would have thought it was a source of comfort; that is, we know that even though our clause provides for a broader range of subject matter to be arbitrated than is the case with the Boral clause, nonetheless it can't lead to an outcome where a decision is made inconsistent with the agreement. So it can't increase wages. It can't rewrite the hours clause. It can't get around the no extra claims clause. All those things that are raised by Boral as reasons why you shouldn't approve the TWU proposed clause are, in fact, matters which are fully protected against by subsection 5 and of course the parties are aware of that fact.
Now, Boral tries in its written submissions to take that provision a bit further by saying that inconsistency doesn't just mean inconsistency with the text of the agreement, but inconsistency that might arise from the absence of something in that agreement. With respect, that interpretation is not a correct interpretation of subsection 5. That provision is concerned only with decisions which are textually inconsistent with the terms of an enterprise agreement. That is apparent in a number of ways. Firstly, can I ask the Tribunal to return to the explanatory memorandum and to paragraph 2739 on page 413. This is the explanation. It says:
Despite anything to the contrary, in the modern award, enterprise agreement or contract of employment Fair Work Australia cannot make a binding decision that is inconsistent with the parties' rights or obligations under the Bill, including the regulations or a Fair Work instrument such as an enterprise agreement that applies to them. These rights and obligations can only be finally determined by a court.” 2
It was said the TWU does not have any new claims but seeks the capacity to address unforeseen matters as they arise and have them arbitrated if necessary.
[15] It was the uncontested evidence of Mr Masters, TWU Delegate, that in his view:
“...access to a comprehensive disputes procedure is crucial. Without access to an independent umpire we will be largely reliant on the company’s goodwill in a number of areas. Allowing workplace disputes to go unresolved, or to be determined at the discretion of management, will cause resentment and unhappiness among workers and is not a basis for sound industrial relations.” 3
[16] The TWU submitted that the Act constrains the Tribunal from varying an agreement or making determinations inconsistent with the agreement and that the concerns of Boral were without substance.
[17] The legislation applies to disputes that are not solely related to the agreement or the Award but also to matters going to the heart of the employment relationship.
[18] Relevantly, an enterprise agreement under the Act, can empower FWA to arbitrate disputes, within the limitations set out above, relating to a matter pertaining to the relationship between the employer and employees covered by the agreement that is not a matter arising under the agreement or an Award matter.
[19] It is clearly established from agreements approved by the Tribunal that DRPs in identical terms to those proposed by the TWU in this matter are permissible and consistent with the legislative intent of the Parliament. It is my decision that the wording of the DRP clause proposed by the TWU form part of the proposed agreement.
[20] I now turn to the second matter for determination being the terms of the consultation clause to be included in the proposed enterprise agreement.
[21] On this matter the parties are in broad agreement on eight clauses. The differences between them are essentially whether Boral should notify the TWU of a decision to introduce major workplace change. Boral’s proposal is to notify “the relevant drivers of the decision to introduce the major change. If Boral knows that any of the relevant drivers are members of the Union, then Boral will also notify the Union of the decision to introduce the major change.” The TWU proposal is that “Boral will notify the relevant drivers and the TWU of the decision to introduce the major change.”
[22] Boral submitted its concern is to ensure compliance with the principles of freedom of association and in the event that a major change does not have a significant effect on any known union members then it should not be obliged to notify the TWU.
[23] The flaw in Boral’s position is that it cannot be entirely sure which of its employees are members of the TWU.
[24] In my opinion, notifying the TWU does not create an inconsistency with an employee’s right to freedom of association nor with the Objects set out in s.336 of the Act.
[25] The wording of the clause sought by the TWU is common in many agreements and ought to apply to the proposed agreement between the parties.
COMMISSIONER
Appearances:
B Miles of Counsel with N Chadwick, Chadwick Workplace Law, for Boral Resources (NSW) Pty Ltd T/A Boral Concrete
A Hatcher of Counsel with O Fagir, Transport Workers’ Union of Australia-New South Wales Branch
Hearing details:
2010.
Sydney:
19 August.
1 Transcript PN506.
2 Transcript PN388-391.
3 Exhibit H1 PN18.
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