Commonwealth Bank of Australia v Finance Sector Union of Australia
[2010] FWA 4097
•1 JUNE 2010
[2010] FWA 4097 |
|
DECISION |
Fair Work Act 2009
s.603—Application for varying and revoking Fair Work Australia’s decision
Commonwealth Bank of Australia
v
Finance Sector Union of Australia
(B2010/2908)
COMMISSIONER SMITH | MELBOURNE, 1 JUNE 2010 |
Applicant seeking variation to the order issued in B2010/2575.
[1] On 9 April 2010, a decision was issued 1 which resulted in Orders directed towards bargaining in good faith by the Commonwealth Bank of Australia (CBA). By application dated 27 April the CBA, pursuant to s.603 of the Fair Work Act 2009 (the Act), sought to vary those Orders.
[2] The Orders 2 were as follows:
1. The Commonwealth Bank of Australia will notify the employees’ bargaining representatives within 24 hours of any decision to increase wages of employees for whom bargaining is taking place.
2. The notification will include the amount by which wages will be increased and the effective date of that increase.
3. The Commonwealth Bank of Australia will allow the bargaining representatives at least 14 days to respond to any increase decided upon before the increase is operative or before it advises employees directly.
4. In the event that a decision has already been made to increase wages of employees for whom bargaining is taking place, the notification to the bargaining representatives in accordance with order 1 above will be not more than 72 hours from the operation of this order.
5. This order will not apply in circumstances where the only decision made is to authorise negotiations on a wage increase with the bargaining representatives.
[3] The substance of the application is to have any communication arising from its obligation under Order 3 to remain confidential to the bargaining representatives and the CBA National Enterprise Council (the Council). The Council is a body with whom the employee bargaining representatives consult.
[4] This decision must be read against the background of the decision issued on 9 April as it forms a continuum of considerations given to bargaining which is taking place between the CBA and the bargaining representatives of its employees.
[5] The ground upon which the CBA seek a variation is that it did not have the opportunity to put submissions as to the terms of the Order finally determined. Except for one matter to which I shall shortly return, there is no issue with the power of the tribunal to vary the Order it made on 9 April.
[6] In support of its application CBA argued that:
- Negotiations are confidential and negotiators have been keeping the details of the negotiations confidential over a period of 18 months,
- The Order requires CBA to maintain confidentiality for 14 days whilst the employee bargaining representatives consider the information and it is appropriate that a reciprocal obligation be placed upon the bargaining representatives,
- Any proposed wage increase is confidential and commercially sensitive,
- Any proposed wage increase by CBA may not be final and to maintain confidentiality is consistent with the employee bargaining representatives having the ability to respond, and
- The employee bargaining representatives do not represent all employees at CBA as just over half are not covered by existing collective agreements.
[7] The employee bargaining representative raises for consideration the jurisdiction of Fair Work Australia to deal with the application. It is argued that before an order can be made against the employee bargaining representative it would be necessary for the jurisdictional prerequisites to be present. It is submitted that the CBA has not complied with s.229(4).
[8] This raises a nice question. However, it appears to me that when a valid application is made then the Tribunal can make orders in relation to how the bargaining is to be conducted. An examination of s.231 of the Act demonstrates that the matters which can be contained in the bargaining order are not limited only to the person/s against whom orders are sought.
[9] Section 231 provides:
“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).”
[10] To the extent that any difference exists it may be the use of the language “the” bargaining representatives and “those” bargaining representatives, however that may well be a distinction without a difference. CBA submitted that if it was decided that only it could be bound by the bargaining order then the matter could be dealt with on the basis that any obligation placed on it was contingent upon a commitment from the employee bargaining representative.
[11] I propose to proceed on the basis that once the jurisdiction exists for making a bargaining order then the Tribunal can make broad orders consistent with ensuring that bargaining is preceding efficiently and fairly between all involved.
[12] Whilst the employee bargaining representative did not generally disagree with the need to maintain confidentiality during bargaining, the response was conditioned by the experience of CBA providing unilateral pay increases and, in this connection, it was considered inappropriate for the employee bargaining representatives to not consult with the persons on whose behalf they were bargaining.
[13] The concerns raised by the employee bargaining representative highlights whether or not bargaining in good faith is taking place. The Order issued on 9 April was directed towards bargaining, not simply providing an avenue for CBA to advise the employee bargaining representatives of what it would implement. Such an approach would not be consistent with good faith bargaining. To make a decision and then implement it without providing the employee bargaining representatives an opportunity to engage in bargaining would be destructive of the bargaining process which is said by CBA to be course it seeks to pursue. I have not been persuaded to date that CBA is simply using the collective bargaining forum as a ruse to disguise an approach of non-engagement in collective bargaining. The previous decision dealt with the particular circumstances facing CBA at the time the January 2010 increase was announced and that decision did not find that CBA was deliberately seeking to avoid bargaining in good faith by subterfuge.
[14] It doesn’t seem to be a matter of controversy that if a decision was taken in relation to salaries and then implemented by CBA, the scope for bargaining is either reduced considerably or removed altogether. It would be hard to imagine that an employer would implement an annual salary increase to employees which was significantly less than it was prepared to consider because it wanted to leave room for bargaining with the employee bargaining representative. This would be particularly so for CBA given the expected coverage of any industrial instrument reached through collective bargaining.
[15] The Order issued on 9 April was directed towards assisting fair and efficient bargaining. The application by CBA is directed towards maintaining confidentiality to also assist fair and efficient bargaining. It recognises in its submission that any decision to increase wages which is conveyed to the employee bargaining representatives may not be final and that it expects the employee bargaining representative to respond. This is consistent with statutory obligations contained in s.228 of the Act.
[16] I will grant the application and maintain confidentiality while disclosures by CBA can be seen in the context of bargaining. That is, any position CBA outlines to the employee bargaining representatives is capable of negotiation where the objective is to reach agreement. If this does not prove to be the case the employee bargaining representatives may seek an urgent re-listing.
COMMISSIONER
Appearances:
G. Fredericks on behalf of the Commonwealth Bank of Australia.
G. McConville for the Finance Sector Union of Australia.
Hearing details:
2010.
Melbourne:
May, 3 and 21.
1 [2010] FWA 2690
2 PR995831, 9 April 2010
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