Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Contact Electrical Pty Ltd
[2012] FWA 8137
•19 SEPTEMBER 2012
[2012] FWA 8137 |
|
DECISION |
Fair Work Act 2009
s.229—Bargaining order
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Contact Electrical Pty Ltd
(B2012/1519)
COMMISSIONER DEEGAN | HOBART, 19 SEPTEMBER 2012 |
Application for a bargaining order - negotiations for new enterprise agreement - draft agreement amended and put to a vote without knowledge of union - bargaining order made.
[1] On 23 August 2012 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) lodged an application under s.229 of the Fair Work Act 2009 (the Act) for a bargaining order directed at Contact Electrical Pty Ltd (the employer).
[2] The matter was heard on 28 August 2012 and an order [PR528468] issued the same day. These are my reasons for the decision to issue that Order.
The CEPU case
[3] Evidence in support of the application was given by Mr Darren Harpham, organiser with the CEPU. Mr Harpham filed a witness statement 1 and was cross-examined.
[4] It was the evidence of Mr Harpham that in May 2012 the CEPU received a bargaining notice from the employer’s bargaining representative, Mr James O’Neill, advising that the employer wished to commence negotiations for a new enterprise agreement. The current enterprise agreement covering the parties had a nominal expiry date of 1 July 2012.
[5] In response to the bargaining notice the CEPU met with its members who were employees of the employer and finalised a log of claims on 20 June 2012. The employer’s bargaining representative was advised that the CEPU had settled a log of claims and a meeting was arranged for 5 July 2012. That meeting was cancelled at the request of the employer’s representative and another meeting was arranged for 9 July. At that meeting the CEPU presented its log of claims and was advised by the employer’s representative that the employer did not yet have a log of claims.
[6] On 11 July the CEPU was advised by a member that the employer had presented a draft agreement to its employees and was seeking to discuss it. The member provided the CEPU with a copy of the draft and a further copy was provided by the employer at the CEPU’s request on 13 July 2012.
[7] Two further negotiation meetings took place between the employer’s representative and the CEPU on 17 July 2012 and 2 August. At those meetings the parties discussed the CEPU log and the employer’s draft agreement. On 13 August the employer’s representative provided the CEPU with a table setting out the main issues between the parties. A further negotiation meeting occurred on 16 August at which a number of matters were discussed and some concessions were made by the CEPU. The CEPU agreed to take a number of other matters “on notice”, discuss them with members and get back to the employer’s representative.
[8] On 17 August 2012 the CEPU contacted the employer’s representative and arranged two further negotiation meetings involving the employer and other employers in the industry. These meetings were arranged for 22 and 24 August.
[9] On 21 August 2012 Mr Harpham was advised by an employee of the employer that an agreement had been put to an employee vote by the employer. The proposed Agreement had been distributed on 20 August 2012 and the vote was to occur on 28 August.
[10] It was Mr Harpham’s evidence that the proposed agreement contained at least two major changes to the employer’s position since the meeting held on 13 August, including a reduction in the proposed term of the agreement.
[11] The meeting on 22 August went ahead, as other employers were involved. At the meeting the employer’s bargaining representative proposed to discuss the terms of the proposed agreement but the CEPU refused as the Agreement had been put to the vote. The CEPU requested the bargaining representative for the employer not to proceed with the ballot.
[12] It was the CEPU submission that the Tribunal should make a bargaining order in the terms sought in their amended application, that any ballot conducted not be counted and that any ballot papers be destroyed. The CEPU also sought an order that the employer explain to the employees why the ballot had been terminated, appending a copy of any decision, should one be available.
[13] The CEPU submitted that the evidence showed that the requirements of s.229 of the Act were satisfied. It was put that while the amount of time given to the employer to respond in accordance with s.229(4)(b) was not particularly long, it was reasonable in the circumstances of the matter.
[14] It was the CEPU position that the employer had not complied with the good faith bargaining requirements set out in s.228 of the Act. In particular there were breaches of s.228(1)(b), (c), (d), (e) and (f).
[15] In this respect it was put that the employer had not disclosed relevant information to the union and had been reluctant to put forward a bargaining position. The employer had not disclosed the fact that it had twice given a draft agreement to its employees, including the proposed agreement that was put to the vote without the union’s knowledge. In addition, it was put that the proposed agreement contained matters that had not been disclosed to the union including the shorter term of the agreement and a clause relating to back pay. Of particular significance, it was argued, was that the employer had made a decision to end bargaining, and had not disclosed this to the union.
[16] The CEPU noted that the tribunal has previously found 2 that putting an agreement directly to employees while ostensibly bargaining, is a breach of section 228(1)(b) of the Act. In another decision3 it was found that an obligation exists under section 228(1)(b) for an employer to put its position in a manner that allowed the other bargaining representatives to respond.
[17] It was also submitted that s.228(1)(c) imposed an obligation on the employer to respond to proposals made by the other bargaining representatives in a timely manner 4, an obligation not complied with by the employer after 16 August 2012.
[18] So far as s.228(1)(d) imposed an obligation on the parties to give genuine consideration to the proposals of other bargaining representatives and the reasons for any responses, the CEPU contended that the employer had breached this obligation by settling the draft agreement and putting it to a vote without responding to the matters put by the CEPU. The evidence showed that the parties met on 16 August and discussed various matters. The CEPU amended its claims in some respects and both parties were to consider various matters prior to the next meeting. At that time the employer’s bargaining representative indicated that he would get instructions and undertook to provide a response to some matters. On 17 August further meetings were scheduled even though the final agreement had been settled without the knowledge of the union. On 21 August, without further response or any advice to the union, the employer unilaterally terminated bargaining and distributed the proposed agreement for ballot.
[19] The CEPU relied on a decision 5 of Fair Work Australia to demonstrate that s. 228(1)(e) of the Act had been breached by the employer; by making an offer of back pay as part of the agreement put to the vote, an offer that had not been put to the union bargaining representatives.
[20] So far as the implications for good faith bargaining of the employer’s decision to put the agreement to a vote without advising the union, the CEPU relied on the decision of Roe C in National Union of Workers v Ross Cosmetics Australia 6 decision, where he stated:
- For an employer to put a proposed agreement to a ballot of employees without the agreement of the other bargaining representatives; or
- For an employer to decide when a bargaining impasse is reached and to then put a proposed agreement to a ballot of employees; or
- For a bargaining representative to decide that an impasse has been reached after only a limited number of meetings; or
- For a bargaining representative to forcefully put its account of the bargaining issues directly to employees for their information or to attempt to persuade employees to support a proposed agreement; or
- For voting for an agreement to be conducted by the employer and in a manner chosen by the employer.
- Proceed to unilaterally proceed to advise employees that there will be a vote of employees without allowing the bargaining representatives the opportunity to seek instructions from those whom they represent as to whether there should be a changed employee position in response and without the employer considering any changed response prior to proceeding to such a vote....
[48] It is not necessarily a breach of good faith bargaining:
[49] However, in some circumstances all of the above can be a part of the basis for finding a breach of good faith bargaining.
[50] In the circumstances of this case it is not consistent with good faith bargaining and undermines collective bargaining or freedom of association to:
[21] Also, Whelan C made the following finding in Defries 7
[70] ...The presentation of a document to employees as part of the requirements of section 180 is a clear indication that the employer considers bargaining to be at an end. The approval of the document would clearly bring bargaining to an end. The presentation of the document to the employees is a clear indication that the employer was not prepared to negotiate any further changes to the proposed agreement. I would consider it to be a fundamental element of bargaining in good faith that a bargaining representative notify other bargaining representatives that it no longer intended to bargain.
[71] The NUW is the bargaining representative for its members who are employed by Defries Industries. The employer circulated an agreement to employees for the purpose of a vote being conducted on their document without telling the representative of those employees, who are union members, that it was going to do so, without giving them a reasonable time to propose any amendments to the document and without responding to the proposals they put through their bargaining representative concerning the content of such an agreement. In my view, that amounted to unfair conduct undermining freedom of association and collective bargaining.
[22] It was the submission of the CEPU that the employer and its bargaining representative had breached section 228(1)(e) by:
- not advising the CEPU that bargaining was at an end and distributing a proposed agreement for approval;
- not putting changes to the employers’ bargaining position, including the offer of back pay and the new duration of the agreement, to the CEPU prior to distributing the proposed agreement for approval;
- not giving the CEPU a chance to respond to matters put by the employer at the meeting of 16 August;
- not responding to matters put by the CEPU, particularly those raised on 16 August.
[23] It was also argued that the same facts constituted a breach of s.228(1)(f) of the Act, as in taking the action it did the employer had failed in its obligation to “recognise and bargain with the other bargaining representatives for the agreement.” In addition it was put that the employer, in attempting to have employees nominate new bargaining representatives after putting the agreement to the vote, was also in breach of the requirement to recognise the CEPU as the employees’ bargaining representative.
[24] So far as 230(1)(c) of the Act and the reasonableness of making the orders sought was concerned the CEPU argued that there had been flagrant and multiple breaches of the good faith bargaining requirements. It was argued that the tribunal should exercise its discretion to make the orders to correct the breaches of the good faith bargaining requirements.
The Employer’s Case
[25] Mr Dion Frame, General Manager, was called to give evidence in support of the employer’s opposition to the application. Mr Frame, who had held his current position for about five years, is based in Launceston but regularly visits all three branches of the employer’s business, which are situated across the State. He claimed that he had spoken to employees at “toolbox” meetings and answered questions from them about the enterprise bargaining process. It was his evidence that the employees had been unaware of the negotiations or the results of bargaining. He had provided them with information from the employer’s perspective and had given them copies of each draft agreement that had been developed. These agreements were provided on 13 July 2012 and 20 August 2012.
[26] It was also the evidence of Mr Frame that discussions occurred with the employees prior to the second draft being provided, as there were a number of provisions in the first draft that the employees were not happy with. It was the second draft of the proposed agreement that had been put to ballot.
[27] Under cross-examination by Mr Kentish, Mr Frame agreed that on 24 and 27 August 2012 an employee of the employer had distributed documents to other employees for the purpose of having those employees to appoint new bargaining representatives. Mr Frame claimed that the action had been taken on that individual employee’s own initiative. He stated that he had contacted the employer’s bargaining representative for advice and to obtain a copy of the relevant form. He then conceded that he had made the document available to all employees by email. It was noted by Mr Frame that some of the forms that were returned nominated the CEPU as bargaining representative.
[28] Mr Frame claimed that he did not know whether the proposed agreement that had been distributed to the employees for the vote had been provided to the CEPU. It was his evidence that the final agreement had been prepared by the employer’s bargaining representative and forwarded to him by email about midday on 16 August. Provided with the final agreement were instructions for putting it to the vote.
[29] The employer submitted that the requirements for the making of bargaining orders, as set out in s.229(4) of the Act, had not been met. It was further contended that there was no merit to any of the union’s concerns set out in the email sent to the employer and its bargaining representative on 22 August.
[30] It was put for the employer that while the union had claimed that the employer had not provided sufficient detail of its log of claims, the employer had in fact provided the union with a draft of its preferred agreement on 13 July.
[31] In relation to the claim that the employer had brought negotiations to an end without any notification to the CEPU and without providing the CEPU with a copy of the proposed final agreement, it was put that the CEPU had been made aware of the document by its members and that a copy had been provided to the union the day after it was requested.
[32] The employer also argued that the fact that a proposed agreement had been put to ballot did not necessarily bring the bargaining to an end. In this respect the employer relied on the decision of the Full Bench in Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd 8 (Tahmoor). In that case the company proposed to go to a ballot without the approval of the union and the Full Bench had said:
[30] We deal now with the ballot of employees. Although there may be circumstances in which the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements, it will not always be so. There is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot...
And further:
[31]...While it might have been better if the CFMEU had been given formal notice of the employee meetings, it is hard to imagine that the CFMEU did not become aware of them almost as soon as the employees did.
[33] The employer suggested that the situation in the case before the Tribunal was the same as that before the Full Bench in Tahmoor.
[34] The employer’s representative disputed the CEPU’s claim that the employer’s decision to put the proposed agreement to the ballot without advising the CEPU of the amendments that had been made to it was “capricious and unfair” 9. It was noted that that term was used in the provision in the context of freedom of association and collective bargaining. It was argued that a failure to notify the CEPU that the employer was prepared to shorten the agreement term could not be termed capricious or unfair in the context of freedom of association or collective bargaining. Similarly it was argued that the decision to offer back pay without advising the union was not capricious or unfair in the context in which those terms were used in the relevant provision.
[35] The employer reiterated that while it had not advised the CEPU that the Agreement had been put to the vote, the CEPU had been made aware of that fact, and provided with the document, by its members. It was put that the failure of the CEPU to commit to a timetable for meetings (other than those set down for 22 and 24 August) contributed to any perceived lack of response to CEPU proposals by the employer.
[36] It was the employer’s submission that in order to meet the requirements of the making of bargaining orders the CEPU was required to demonstrate that the employer had not been participating in good faith bargaining and that it had given the employer a reasonable opportunity to respond to its concerns 10. The employer contended that the CEPU had not allowed a reasonable time for a response to the letter outlining the union concerns in relation to breaches of the good faith bargaining requirement. The letter was emailed at 4.40 pm one day with a response demanded by 10.30am the next day.
[37] Further, it was noted that s230(1)(a) of the Act requires Fair Work Australia to be satisfied that it is reasonable, in all the circumstances, to make the orders. The employer submitted that, on the basis of the decisions in Tahmoor and Construction, Forestry, Mining and Energy Union v Shinagawa Refractories Australasia Pty Ltd 11 (Shinagawa) in circumstances where employees were expectant of a ballot taking place that same day, it was not reasonable to make the orders sought. The employer argued that the rules of engagement in relation to enterprise bargaining, provided that the aspects of good faith bargaining are met, are not prescribed anywhere in the legislation. On that basis it was put that the ballot should be allowed to proceed and the employees allowed to decide whether bargaining should recommence, which would occur if the agreement were not approved.
[38] Finally the employer submitted that, were the ballot not to be permitted to proceed, the 21 day delay to any further submission of an agreement to ballot that was sought by the union was excessive as the employer representative indicated that he did not think there would be further discussions between the parties.
Consideration
[39] As noted above, having heard from the parties I decided to issue a bargaining order requiring the ballot on the proposed agreement to cease and delaying any further ballot for a period of 21 days.
[40] I determined that the CEPU had the necessary standing to make an application for an order in relation to bargaining for the proposed agreement with the employer in this matter. 12 The proposed agreement is a single-enterprise agreement. The current agreement which applies to the relevant employer and employees had passed its nominal expiry date.13
[41] Having taken into account all the evidence I am satisfied that the CEPU had had concerns that the bargaining representative of the employer was not meeting the good faith bargaining requirements and had given notice of those concerns to the employer by letter of 22 August 2012.
[42] Although the letter of 22 August 2012 allowed the employer less than 24 hours to respond I am satisfied that, in all the circumstances, the period allowed was reasonable. The employer had, without informing the CEPU, put a proposed agreement to a vote of employees. That vote was due to take place on 28 August 2012. The letter of 22 August sought that the employer cancel the ballot, provide the CEPU with a copy of the proposed agreement and any accompanying documentation and to meet with the union for discussions, with a view to seeking agreement. The response sought was clear and did not require any detailed consideration by the employer. Given that the ballot was to open less than three working days after the period given for a response, the time allowed was reasonable.
[43] So far as the requirements of s230(1) and (2) of the Act are concerned I determined that an application for the order had been made and that the employer had initiated bargaining for an agreement.
[44] Section 230(3) of the Act provides as follows:
(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.
[45] I am satisfied that the employer’s bargaining representative for the agreement had not met the good faith bargaining requirements.
[46] I am satisfied that the conduct of the employer in failing to disclose to the CEPU that it had unilaterally ceased to bargain, had amended and then finalised the terms of a proposed new agreement, and had put the proposed agreement to a vote did not meet the good faith bargaining requirement set out at s.228(b) - the requirement to disclose relevant information in a timely matter.
[47] I am also satisfied that the same conduct, together with the conduct of the employer in arranging further bargaining meetings with the CEPU at the same time as unilaterally ceasing to bargain, did not meet good faith bargaining requirements set out at s.228(e) and (f) as follows:
(e) refraining from capricious or unfair conduct that undermines freedom of association and collective bargaining ; and
(f) recognising and bargaining with the other bargaining representatives for the agreement.
[48] On 16 August 2012 the employer arranged to hold two further meetings with the CEPU. At the very same time its advisors were providing it with a final agreement which it intended to put to a vote. The employer then put that proposed agreement to the vote on 21 August without informing the CEPU, the other bargaining representative. Such behaviour falls squarely within the dictionary definition of “capricious”, i.e. “a sudden and unaccountable change of mood or behaviour” 14. I am satisfied that the employer engaged in that conduct in a calculated move intended to undermine the role of the CEPU in bargaining, and, as such, undermined freedom of association and collective bargaining.
[49] Clearly, by failing to advise the CEPU of its intention to cease bargaining, by making further unadvised amendments to the draft agreement and then putting that agreement to a vote without notice to the CEPU the employer was failing to recognise the role of the CEPU in bargaining and failing to bargain with that union. This is conduct clearly distinguishable from that of the employers in Tahmoor Coal and in Shinegawa.
[50] Other failures by the employer to meet the good faith bargaining requirements were raised by the CEPU. Given the seriousness of the failures of which I was already satisfied I did not deal with the other matters.
[51] Being satisfied of the matter set out in s.230(3)(a)(1) and that the CEPU had complied with the requirements of 229(4) I needed only to be satisfied that it was reasonable in all the circumstances to make the order.
[52] I am satisfied that the employer’s failure to meet the good faith bargaining requirements were of such a serious nature that it was imperative that the ballot be stopped, and the employer made to comply with its obligations under the Act in relation to good faith bargaining and, in particular, be required to recognise and bargain with the bargaining representative of its employees.
[53] A copy of the bargaining order issued on 28 August 2012 is attached to this decision.
COMMISSIONER
Appearances:
Mr A Kentish on behalf of the CEPU
Mr A Cameron, of James O’Neill & Associates, on behalf of the employer.
Hearing details:
2012.
Hobart:
August 28.
PR528468 |
|
ORDER |
Fair Work Act 2009
s.229—Bargaining order
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Contact Electrical Pty Ltd
(B2012/1519)
COMMISSIONER DEEGAN | HOBART, 28 AUGUST 2012 |
Pursuant to s.230 of the Fair Work Act 2009 (the Act), Fair Work Australia (FWA) makes the following Order:
A. Any votes cast on 28 August 2012 that relate to the approval of the proposed enterprise agreement are null and void.
B. Any votes cast are to be destroyed by the appointed returning officers unseen and uncounted.
C. The invitation to employees to approve the proposed agreement is to be deferred for a period of 21 days.
D. During this time, meetings are to be held to enable the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) to bargain about the changes made to the draft agreement by Contact Electrical, with the first meeting to take place within 7 days from the date of this Order.
E. A copy of this Order is to be provided to each employee eligible to vote in the aborted ballot with their next pay slip.
F. This Order will come in to operation from today’s date and will remain in operation until such time as it ceases to operate in accordance with s.232(b) of the Act.
COMMISSIONER
1 Exhibit CEPU 1
2 2 Alphington Aged Care [2009] FWA 301 at [26]
3 National Union of Workers v Defries Industries Pty Ltd[2009] FWA 88
4 Ibid at paragraph [66]
5 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Coates Hire [2012]FWA 3357
6 [2012] FWA 3252
7 National Union of Workers v Defries Industries Pty Ltd[2009] FWA 88
8 [2010] FWAFB 3510
9 Transcript at PN320
10 Fair Work Act2009 s.229(4)(c)
11 [2011] FWA 8304.
12 Fair Work Act2009 s.229(1)
13 Fair Work Act2009 s.229(3)
14 Compact Oxford English Dictionary (2nd Ed) Revised.
Printed by authority of the Commonwealth Government Printer
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