Health Services Union v Goodwin Aged Care Services Limited T/A Goodwin

[2016] FWC 4411

[2016] FWC 4411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Health Services Union
v
Goodwin Aged Care Services Limited T/A Goodwin
(B2016/669)

Health and welfare services
COMMISSIONER BISSETT	MELBOURNE, 4 JULY 2016

Application for a bargaining order.

[1] The Health Services Union, New South Wales Branch, (HSU NSW) has made an application pursuant to s.229 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) seeking bargaining orders in relation to bargaining with Goodwin Aged Care Services Limited (Goodwin) for a new enterprise agreement.

[2] The order sought by HSU NSW is that the ballot currently being conducted to approve the agreement be set aside so that further negotiations can occur between the bargaining representatives (of which the HSU NSW is one) and Goodwin. Alternatively, it seeks an interim order that the ballot, due to close at 12 noon today, not be declared pending final orders from the Commission.

[3] The following decision and reasons was issued in transcript on 1 July 2016 and is now published. The decision has been edited from that provided in transcript to correct any grammatical errors.

Background

[4] The HSU NSW along with the Australian Nursing and Midwifery Federation (ANMF) and an individual are bargaining representatives with respect to bargaining for a new agreement with Goodwin.

[5] Bargaining has been on-going since October 2015 and the bargaining representatives have been involved in that bargaining. The bargaining has included the Commission assisting with a bargaining dispute in accordance with s.240 of the Act.

[6] On 3 May 2016, Ms Pauline Hugler, Executive Manager, People and Culture, of Goodwin advised the bargaining representatives of the voting process for the agreement (the first ballot).

[7] The first ballot was conducted by a company called the Australian Electoral Company (the ballot agent) and opened on 9 May 2016 and closed on 17 May 2016. Voting was conducted electronically via email.

[8] The outcome of the vote was that, of those who voted, 50% voted in favour of the agreement and 50% voted against the agreement. The agreement was therefore not made. Only 44.5% of staff voted – an unusually low turnout for agreement ballots at Goodwin.

[9] Following the unsuccessful ballot, Goodwin asked members of its Workplace Consultative Committee (WCC) to consult with staff and ask why they had not voted. The feedback indicated that staff thought they were receiving emails from the AEC (the federal election campaign was on); staff were concerned at having to disclose their payroll number to vote; employees thought if they did not vote it would count as a yes and some staff did not have access to their work email account.

[10] Goodwin then determined to resubmit the matter to a ballot but to use the more traditional paper based method (the second ballot).

[11] Prior to putting the agreement out to the second ballot, Goodwin made some changes to the agreement to:

(i) Increase salaries for GACS1 and GACS2 as a result of the recent national wage increase decision;

(ii) Correct typographical errors;

(iii) Clarify the intended operation of the pay increments for those with qualifications.

[12] Goodwin did not consult the bargaining representatives prior to making the amendments to the agreement or going to a second ballot.

[13] The second ballot is due to close at 12 noon on Friday, 1 July 2016.

The application

[14] The HSU NSW said that Goodwin has acted capriciously or engaged in unfair conduct that undermines freedom of association or collective bargaining by not meeting with the bargaining representatives and negotiating with them over the content of the agreement after the first ballot. It says that such negotiations would minimise the risk of the agreement failing at the second ballot. The HSU NSW said that Goodwin has refused to meet with the bargaining representatives.

[15] The HSU NSW also said that it was not advised of the changes made to the agreement prior to it being submitted to a second ballot, that it was not advised of why the second ballot process was different to the first ballot (paper based v electronic) and that many of its members were from a NESB.

[16] For these reasons the HSU NSW said that Goodwin is not meeting the good faith bargaining requirements of the Act.

[17] The ANMF said that it had had no contact with Goodwin since 3 May 2016 and that it would not be prejudicial to grant the application.

[18] The HSU NSW said that the matters it still wished to bargain with Goodwin about were the rates of pay in the agreement and the period of operation of the agreement.

[19] Goodwin said that the only conduct the HSU NSW complains about is the conduct of Goodwin between the first and second ballots and that is there is no claim that Goodwin did not meet the good faith bargaining requirements of the Act prior to the first ballot.

[20] Goodwin said that it has not acted unfairly or capriciously by making the amendments to the agreement that it did make or by putting the agreement out to a second ballot.

[21] It says that the balance of convenience does not favour the grant of the order sought by the HSU NSW. To date it says that close to 75% of employees have participated in the ballot. Further, it says that the two issues that the HSU NSW have indicated they wish to bargain about have been comprehensively thrashed out prior to the first ballot and management’s view on these two matters has not changed.

[22] Goodwin says that its decision to have the WCC speak to staff about the reasons for failure of the first ballot is not unreasonable and it has not used the WCC as a bargaining forum but recognised the distinct bargaining representatives and their role.

[23] Goodwin said the application should be dismissed.

Should I issue an order?

[24] The good faith bargaining requirements are set out in s.228 of the Act.

[25] The pre-requisite for making bargaining orders are set out in s.229 of the Act, in particular in s.229(4) and (5). It provides:

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.

[26] In this case, given that the ballot closes on 1 July 2016 (the day after the hearing and the day of this decision), I am satisfied that the application may be considered and that compliance with s.229(4)(b) and (c) is not necessary.

[27] I am therefore satisfied that the application has been properly made.

[28] However, in this case I am not satisfied that the HSU NSW has established that the good faith bargaining requirements of the Act have not been met by Goodwin.

[29] That the HSU NSW sought to have a further meeting with Goodwin after the first ballot and Goodwin refused does not mean that Goodwin has failed to attend, and participate in, meetings at reasonable times (s.228(1)(a)). That the HSU NSW had no complaint about the conduct of Goodwin in attending in participating in meetings prior to the first ballot suggests that it was content with the attendance and participation in those meetings up until the failure of the first ballot. That there was not a meeting or that Goodwin refused to attend a meeting before the second ballot does not amount to a failure to bargain in good faith – particularly in circumstances where the agreement has gone to the second ballot, albeit with minor changes but in circumstances where those changes are improvements to the agreement.

[30] That HSU NSW and other bargaining representatives were not advised of the second ballot or of the changes to the agreement is not evidence of capricious conduct on the part of the Goodwin and does not undermine freedom of association (s.228(1)(e)). Why Goodwin did not provide this advice to the bargaining representatives is a mystery – it would have been courteous to do so and may have saved time and effort now spent on this application.

[31] That Goodwin did not wish to enter into further negotiations in respect of the rates of pay and the length of the agreement is not capricious conduct and does not undermine freedom of association.

[32] Guidance as to the meaning of capricious conduct can be gained from the Explanatory Memorandum to the Fair Work Act 2009 which says:

951. The good faith bargaining requirements are generally self-explanatory. The last requirement, ‘refraining from capricious or unfair conduct…’ is intended to cover a broad range of conduct. For example, conduct may be capricious or unfair conduct if an employer:

● fails to recognise a bargaining representative;

● does not permit an employee who is a bargaining representative to attend meetings or discuss matters relating to the terms of the proposed agreement with fellow employees;

● dismisses or engages in detrimental conduct towards an employee because the employee is a bargaining representative or is participating in bargaining; or

● prevents an employee from appointing his or her own representative.

[33] I am not convinced that the conduct of Goodwin falls within these classes of conduct.

[34] The Macquarie Dictionary defines capricious as ‘subject to, led by, or indicative of caprice or whim.’ Caprice is defined as ‘1. a sudden change of mind without apparent adequate motive, whim 2. tendency to change one’s mindwithout apparent or adequate motive; whimsically; capriciousness.’

[35] I am not convinced that the conduct of Goodwin falls within this definition of capriciousness.

[36] The management of Goodwin didn’t change their minds, in fact they have stayed the same course since the first ballot and that is to stick to the agreement as negotiated with some minor changes that could only be described as beneficial.

[37] In circumstances where the feedback from employees was that participation in the first ballot was low because of the form of the ballot as opposed to the content of the agreement, it is difficult to see how the decision to go the second ballot without further bargaining could be seen as capricious.

[38] I am not satisfied that the conduct of Goodwin in failing to meet with bargaining representatives after the first ballot was action that undermines freedom of association or collective bargaining. Goodwin have not entered into bargaining with employees or purported representatives of employees to the exclusion of the bargaining representatives. There is no evidence to suggest that Goodwin has bargained with the WWC. Given that no bargaining occurred between the first and second ballot and that there is no complaint of the conduct of Goodwin prior to the first ballot, I am not satisfied that Goodwin have acted in a way designed to undermine freedom of association or collective bargaining.

[39] That the matter the HSU NSW and ANMF sought to agitate in a further meeting are matters that were dealt with extensively in bargaining prior to the first ballot suggests that a decision not to have any further bargaining was not capricious conduct, was not designed to undermine freedom of association and was not breach of good faith bargaining.

[40] As I have said it would have been common courtesy for Goodwin to advise the bargaining representatives that it intended to proceed to a second ballot, how that ballot would occur and the changes made to the agreement. That it did not however, is not a breach of the good faith bargaining requirements of the Act. That information was not pertinent to the bargaining process nor would it affect the content of the agreement. For this reason, I am not satisfied that Goodwin has failed to disclose information in a timely manner (s.228(1)(b)).

[41] I am not convinced that any of the actions of Goodwin since the failure of the first ballot have breached the good faith requirements of the Act.

[42] For these reasons the application of HSU NSW is dismissed. Having dismissed the application there is no need to consider the issue of an interim order.

COMMISSIONER

Appearances:

M. Burns for Health Services Union of Australia.

S. Chamberlain for Goodwin Aged Care Services Limited T/A Goodwin.

Hearing details:

2016.

Melbourne, Canberra and Sydney (video hearing):

June 30;

July 1.

Printed by authority of the Commonwealth Government Printer

<Price code C,  PR582359>