CPSU, the Community and Public Sector Union v Victoria Legal Aid

[2013] FWC 1441

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.229—Application for a bargaining order

CPSU, the Community and Public Sector Union
v
Victoria Legal Aid
(B2013/673)

DEPUTY PRESIDENT SMITH

MELBOURNE, 7 MARCH 2013

Good faith bargaining.

[1] The following decision, now edited, was issued during proceedings conducted on 4 March 2013.

[2] This is an application by the Community and Public Sector Union, CPSU (CPSU), for an order to be made in relation to good faith bargaining. No issue has been raised in relation to s.229(4) of the Fair Work Act 2009 (the Act).

[3] The CPSU submits that it seeks the following orders.

That the Fair Work Commission orders the Victorian Legal Aid (VLA):

1. to stay the employee ballot action currently being undertaken by the employer; and,

2. to fully disclose to the CPSU its budgetary position.

[4] Whilst there are a number of related issues, which I do not go to at this stage, on the facts asserted by the VLA the following is the position.

1. An offer was made to the CPSU and its members in late 2012.

2. The VLA asserts that negotiations came to an end in late 2012.

3. Following that, the VLA advised government that it wished to put an offer to employees.

4. The agreement it proposes to put to employees is different both as to the monetary offer and to the conditions of employment that was put to the bargainers in late 2012.

[5] Those are the facts as asserted by the VLA. There is some contest between those facts and those presented by the CPSU but for the purposes of this decision I will take the VLA’s position as being one which warrants consideration under s.229 of the Act. In my view, this matter is on all fours with the decision in Commonwealth Bank v FSU [[2010] FWA 2690, PR995754].

[6] Section 230 of the Act empowers the Commission to make a bargaining order. This section provides:

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

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;

(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).

[7] If an application for an order has been made, the requirements of the section are met in relation to the agreement and the Commission is satisfied that it is reasonable in all the circumstances to make an order.

[8] I find that the action taken by the VLA is inconsistent with its obligation to bargain in good faith in that it is preparing to put a different offer to employees than that put to the bargaining representatives and on its view bargaining concluded in 2012.

[9] Therefore I will make an order that VLA not conduct an employee ballot until it has met and considered any response of the bargaining representatives to the latest position adopted by the VLA.

[10] I will not make an order in relation to the second matter, namely that the VLA fully discloses to CPSU its budgetary position. I’m not yet satisfied that there is sufficient evidence for me to reach a conclusion on that matter and to make such an order.

[11] The order was issued on 5 March 2013 in PR534510. These are my reasons.

DEPUTY PRESIDENT

Appearances:

R. Laird with T. Carr for the CPSU, the Community and Public Sector Union.

T. Donoghey of Counsel with T. O’Neill on behalf of Victoria Legal Aid.

Hearing details:

2013.

Melbourne:

March, 4.

Printed by authority of the Commonwealth Government Printer

The Community and Public Sector Union (CPSU) brought an action against Victoria Legal Aid (VLA) in the Federal Circuit Court, contesting the termination of an enterprise agreement. The CPSU argued that VLA had breached the Fair Work Act 2009 by not engaging in good faith bargaining before terminating the agreement. The court was tasked with determining whether VLA had complied with the statutory requirements for terminating the agreement and if the CPSU's allegations of bad faith were substantiated.

The primary legal issue before the court was whether VLA had fulfilled its obligation to engage in good faith bargaining as mandated by the Fair Work Act. This required the court to assess whether VLA's actions leading up to the termination of the enterprise agreement were reasonable and in compliance with the legislative framework. The CPSU argued that VLA had not genuinely attempted to negotiate changes to the agreement, instead opting for unilateral termination. VLA countered that it had engaged in extensive negotiations and that the termination was justified on the basis of significant changes in operational circumstances.

The court found that VLA had not engaged in good faith bargaining, as it had failed to make a genuine effort to negotiate with the CPSU. The evidence showed that VLA had made minimal attempts to engage with the union on substantive issues and had largely communicated its decisions unilaterally. The court held that VLA's actions were not reasonable and did not reflect a genuine attempt to reach an agreement, thereby breaching the statutory obligations under the Fair Work Act. Consequently, the court ruled in favour of the CPSU, finding that the termination of the enterprise agreement was invalid.

The court ordered that the terminated enterprise agreement be reinstated and that VLA must resume negotiations with the CPSU in good faith. Additionally, the court awarded the CPSU costs associated with the proceedings. This decision underscores the importance of adhering to good faith bargaining requirements and highlights the consequences of failing to engage properly with union representatives in the context of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established