Health Services Union v Silver Chain Group Limited

[2021] FWC 766

[2021] FWC 766

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

Health Services Union
v
Silver Chain Group Limited
(B2021/65)

COMMISSIONER PLATT ADELAIDE, 16 FEBRUARY 2021

Application for a protected action ballot order – application dismissed.

[1] The following reasons for decision relate to my decision on 11 February 2021 to dismiss an application for a protected action ballot order. 1

[2] On 9 February 2021, an application was made by the Health Services Union SA/NT Branch seeking a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (the Act) in relation to certain employees of SilverChain Group T/A Royal District Nursing Service of SA Ltd. The name of the Applicant and Respondent varied on the Application, Declaration and Draft Order which was submitted.

[3] The application was opposed by the Respondent on the basis that:

•  The nominated entity (Health Services Union SA/NT) was not an employee organisation as defined by the Act and could not therefore be a bargaining representative.

•  The Applicant was not genuinely trying to reach agreement and that the Commission could not be satisfied that the requirements of s.443(1)(b) of the Act had been met.

[4] The matter was allocated to me on 10 February 2021. Directions were issued for the filing of material.

[5] A Directions Conference was conducted on 11 February 2021 at 10.00am. Mr Wilbur Jordan represented the Applicant. The Respondent was represented by Mr Ryan Murphy (of counsel). Permission to appear was unopposed and granted on the basis of complexity and efficiency.

[6] The Respondent’s concerns with respect to the bargaining representative were as a result of inconsistencies in the material filed by the Union and references to the Health Services Union SA/NT Branch, which did not appear to have separate status as a registered organisation. The Applicant subsequently amended the application by consent, correcting the identity of the Applicant to the Health Services Union (the HSU) and the Respondent to Silver Chain Group Limited (SCG), and that objection was not pursued by SCG.

[7] A hearing was conducted by way of teleconference at 5.00pm on Thursday 11 February 2021 (taking into account the requirements of s.441 of the Act). Parties were directed to file statements and supporting material prior to the hearing. A court book comprising the material submitted was supplied to the parties.

[8] At the hearing, the HSU was represented by Mr Wilbur Jordan and SCG was represented by Mr Simon Meehan of counsel.

[9] There was no submission that the requirements of s.437(2A) of the Act had not been met.

[10] There was also no submission that the requirements of s.440 of the Act had not been met, and there was evidence on file that the Australian Electoral Commission had been served by email.

Factual Matrix

[11] The following material was before me:

•  Application (Form F34) (and the amended version) 2

•  Form F34B Declaration of Support signed by Mr Jordan on 9 February 2021 3

•  Correspondence between the HSU and Ms Sinclair dated 29 January 2021 4

•  Emails between Mr Jordan and SCG and others dated 27 November 2020 5

•  HSU and RDNS Bargaining Schedule dated 27 November 2020 6

•  Email chain between Mr Elrick and SCG and others dated 1 October 2020 7

•  Email chain between Mr Elrick and SCG and others dated 10 September 2020 8

•  Email Chain between Mr Jordan and SCG and others dated 9 February 2021 9

•  Statement of Mr Elrick (Branch Secretary HSU SA/NT dated 11 February 2021) 10

•  Statement of Ms Jacci Sinclair (SCG Group Manager – HR Services) dated 11 February 2021 with attachments 11

[12] Mr Jordan was not cross-examined on his statement.

[13] Mr Elrick and Ms Sinclair gave evidence and were cross-examined.

[14] There were some factual differences between Ms Sinclair’s evidence and that presented by Mr Elrick on behalf of the HSU. In cross-examination, Mr Elrick indicated that he could not recall certain events, that he was very busy and could not remember every email he sent in his role. Some of his responses in cross-examination appeared to be pedantic and/or evasive. By contrast, Ms Sinclair’s account was detailed and comprehensive and she made appropriate concessions. I am inclined to accept her evidence in preference to that of Mr Elrick’s where it differs.

[15] The factual basis relied upon by SCG is that the HSU was not genuinely trying to reach agreement, its contentions are summarised as follows:

•  the HSU had not clearly articulated a single bargaining position but had provided a draft and then a number of further drafts and a final position had not been received;

•  that the HSU had not participated constructively or significantly contributed to bargaining meetings; and finally

•  the HSU’s failure to respond to a comprehensive position (submitted by way of a draft Agreement) provided to the HSU on 14 December 2020.

[16] The HSU contended that:

•  SCG had failed to disclose relevant information in a timely manner;

•  SCG had failed to give genuine consideration to the proposal of other bargaining representatives as to how to progress bargaining meetings;

•  SCG had engaged in capricious or unfair conduct that undermined freedom of association;

•  it met with SCG on 11 occasions and SCG had refused to consider the HSU’s claims;

•  it opposed SCG drafting its own Agreement and sending it to the parties; and

•  this conduct is considered as a breach of the good faith bargaining principles. The HSU contended that it proposed to respond to the SCG draft Agreement by 26 February 2021.

[17] Whilst in closing submissions the Applicant contended that it has not met the requirements of s.443(1)(b), I have presumed this submission was in error.

Genuinely trying to reach agreement

[18] Section 443(1)(b) of the Act requires that the Commission be satisfied that each Applicant for a PABO “has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

[19] This topic has been the subject of much consideration including:

•  John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 12 - the Applicant bears the onus to demonstrate it has been, and is, genuinely trying to reach agreement.

•  Esso Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 13 - whether an Applicant has been, and is, genuinely trying to reach agreement is a fact to be decided having regard to all of the facts and circumstances.

•  Total Marine Services v Marine Union of Australia 14 - the concept of genuinely trying to reach agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any test or criteria, the test in s.443 of the Act must be applied.

•  Coles Supermarkets (Australia) Pty Ltd v The Australasian Meat Industry Employees Union 15 - the requirements of s.433(1)(b) of the Act require the Commission to be satisfied that the Applicant has been, and is, genuinely trying to reach agreement involves two distinct temporal considerations. The use of the words “has been trying…” requires satisfaction that the Applicant has been trying to reach an agreement prior to the time of determination. The use of the words “is genuinely trying” requires satisfaction that at the time of determination the Applicant is trying to reach agreement.

[20] In considering a similar bargaining regime, Vice President Lawler discussed the meaning of “genuinely trying to reach agreement” in Liquor, Hospitality and Miscellaneous Union - Western Australian Branch v CSBP Limited 16 and observed:

“[38] Secondly, the notion of “genuinely trying to reach agreement” does not automatically imply continual movement in the same direction by a negotiating party. Depending upon the circumstances, a negotiating party can withdraw a concession or offer on a particular issue in the negotiation, or renew a previously abandoned position, and still be genuinely trying to seek agreement. Such changes of position can legitimately arise for any number of reasons. For example changed trading conditions may provide an entirely reasonable basis for an employer to withdraw or reduce an offer to increase wages by a particular amount without detracting from the genuineness with which the employer is negotiating.”

[21] In Australian Federation of Air Pilots v Royal Flying Doctor Service of Australia Central Operations 17 Commissioner Hampton endorsed Vice President Lawler’s view and noted that great care should be taken in considering relative movements in positions as an indication of genuineness.

[22] I now address the factual issues raised by SCG.

[23] That a party changes its bargaining position will not always be inconsistent with it genuinely trying to reach agreement. I am not persuaded that the varying positions of the HSU are such that it could be regarded as supporting a submission that the HSU was not genuinely trying to reach agreement.

[24] I am not persuaded on the evidence before me that the HSU’s participation in bargaining meetings was not constructive or that they did not contribute. The minutes of the meetings were not a joint record of the conduct of the meeting but a private record for the use of the party who prepared the same. I am reluctant to accept one party’s notes as a complete record of the conduct of the meetings.

[25] With respect to SCG’s provision of a draft Agreement, in my view the SCG is entitled to respond to the position expressed by the HSU and other bargaining representatives by submitting a draft Agreement in the form provided. 18 I cannot see how this would be inconsistent with good faith bargaining, as submitted by the HSU. Unfortunately, much of the case was argued on the basis of the good faith bargaining provisions of the Act and the Respondent’s alleged failure to bargain in good faith. However, there is no such application before me. The current application is for a PABO and the test is whether I am satisfied that the Applicant has been, and is trying to reach an agreement with the employer of the employees to be balloted as required by s.443(1)(b) of the Act. Whilst it may be possible that the circumstances of a good faith bargaining breach may be relevant to determining if s.443(1)(b) has been met, in this case I do not believe so.

[26] I find that the HSU, as the Applicant, has not meaningfully responded to the proposal put by the Respondent in the two months that followed. In my view, the HSU’s failure to respond to this document is a significant departure from genuinely trying to reach an agreement and is a proper basis upon which to find that the HSU was not, and is not, genuinely trying to reach an agreement with the employer.

[27] On the facts before me, I am not satisfied that the HSU has met the requirements of s.443(1)(b) of the Act and therefore on 11 February 2021 19 the application was dismissed.

COMMISSIONER

Appearances:

W Jordan on behalf of the Health Services Union.

S Meehan counsel on behalf of the Respondent.

Hearing details:

2021.
Adelaide:
February 11.

Printed by authority of the Commonwealth Government Printer

<PR726950>

 1   PR726899

 2   Exhibit A1

 3   Exhibit A2

 4   Exhibit A3

 5   Exhibit A4

 6   Exhibit A5

 7   Exhibit A7

 8   Exhibit A8

 9   Exhibit A6

 10   Exhibit A9

 11   Exhibit R2 (attachment JS is contained at pages 57-206 of the Court Book)

 12 (2010) 191 IR 239, [27]

 13 (2015) 247 IR 5, [57]

 14 (2009) 189 IR 407

 15   [2015] FWCFB 379, [45]-[49]

 16   [2007] AIRC 112

 17   [2015] FWC 531, [102]

 18   See pages 71-122 of the Court Book

 19   PR726899