Jupiters Limited v United Voice

[2011] FWA 8317

[2011] FWA 8317

FAIR WORK AUSTRALIA

DECISION

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

Jupiters Limited
v
United Voice
(B2011/3926)

COMMISSIONER ASBURY BRISBANE, 5 DECEMBER 2011

Application for bargaining order - Allegation that Union disseminated misleading information about employer’s wages offer - Obligations of bargaining representatives - relationship between union as bargaining representative and members not fiduciary - Not misleading conduct for union to highlight lowest offer in range made by employer - Finding that union has not engaged in unfair conduct that undermines collective bargaining - Application dismissed.

OVERVIEW

[1] This is an application under s.229 of the Fair Work Act 2009 (the Act), by Mr Ross Clarke, Bargaining Representative for Jupiters Limited, seeking bargaining orders against United Voice. Jupiters Limited is negotiating an enterprise agreement with employees and United Voice as a bargaining representative for its members. Jupiters Limited contends that United Voice is not meeting the good faith bargaining requirements for the proposed agreement, on the basis that United Voice is distributing and displaying what are said to be misleading flyers and banners to Jupiters Limited staff and patrons regarding wage increases offered by Jupiters.

[2] The draft order sought by Jupiters Limited and appended to the application seeks a direction that United Voice remove all remaining banners and flyers; desist from displaying and distributing further communications which contain the misleading information; and post a statement on the United Voice Facebook page and United Voice website to the effect that certain statements were misleading. Aspects of the draft order which would have required United Voice to inform employees of a particular “wage offer scenario” put by Jupiters Limited and to refrain from mentioning an earlier offer, were not pressed, on the basis of a concession by Counsel for Jupiters Limited that those aspects of the draft order were “a bridge too far”.

[3] Evidence for Jupiters Limited was given by Ms Josephine Dalton, Senior Human Resources Manager and evidence for United Voice was given by Ms Kristin Collorafi, Hospitality Organiser. Both Ms Dalton and Ms Collorafi gave evidence in an application by United Voice for a protected action ballot order (B2011/3821) heard on 3 and 11 November 2011. The witness statements of Ms Dalton and Ms Collorofi tendered in those proceedings, and their oral evidence were also relied on in the present matter, and it was agreed by the parties that final submissions in that matter would be made after submissions in this one.

EVIDENCE

[4] The Conrad Jupiters Certified Agreement 2008 (the 2008 Agreement) reached its nominal expiry date on 30 June 2011. The last wage increase payable under that Agreement was effective from July 2010. 1 United Voice attempted to commence negotiations for a new agreement in January 2011. Those negotiations did not commence until 27 July 2011 when a meeting was held between representatives of Jupiters Limited, United Voice and a number of employees who had opted to represent themselves. Ms Dalton agreed that any delay in commencing negotiations was due to the demerger of Tabcorp the previous owner of Jupiters and management changes, and said that this explanation was conveyed to United Voice.

[5] Early meetings focused on templates or charters for bargaining proposed by United Voice and Jupiters. A good faith bargaining charter proposed by Jupiters Limited was agreed at a meeting on 24 August 2011, and pursuant to that charter, bargaining committee meetings were subsequently scheduled for every second Wednesday.

[6] Ms Collorafi said that United Voice sought an interim pay increase and the meeting of 24 August 2011 discussed two options offered by Jupiters:

● An interim increase of 1.5% pending the conclusion of negotiations; or

● No interim increase on the basis that whatever emerged out of the negotiations for a new agreement would be back dated to 1 July 2011.

Ms Collorafi also said that employee representatives at the meeting agreed that they would take the second option in relation to the operative date of 1 July 2011 for any wage increase.

[7] According to Ms Dalton, at the bargaining committee meeting on 12 October 2011, Jupiters Limited provided a slide presentation to all bargaining representatives setting out its proposed payroll increases for each year of the agreement.  2 That presentation makes it clear that Jupiters Limited framed its proposal in terms of “total payroll changes including wages” rather than simply as wage increases. The slide headed “Jupiters Proposed Payroll Changes” states that Jupiters proposes “overall payroll changes” of 3% in each of the three years of the agreement and goes on to state that: “This will mean total increases during the life of the new agreement of 9%”. A slide headed “Payroll Changes - Summary” indicates that Jupiters Limited has costed the following provisions flowing from the “modern hospitality award” for the purposes of the overall payroll changes proposed for the agreement:

● AM/PM Penalty Rates - 0.49%

● Casual 3 Hour Penalty Maximum - 0.20%

● 5 Week Shiftworker Leave - 0.65%

● Boost for classifications under EA - 0.14%

● Allowances - Alignment with Award rates - 0.02%.

[8] Those changes are said to equate to 1.49% and when added to an increase of 1.5% in “Proposal 1”, to result in a total payroll change of 3%. The slide also has a heading “Base FY11 Actuals” but there is no indication that the 1.5% increase applies only in the first year of the proposed agreement. There are no other proposals in that presentation. The presentation also contains a slide headed “Shift Workers” which states that:

“Shift Workers

● Under the modern hospitality award a shift worker is entitled to an additional week of leave each year

● The bargaining committee have agreed to place the award’s definition of shift worker in the new agreement

● The award’s shift worker definition is ambiguous

● Jupiters position based on case law* is that an employee needs to work 34 Sundays and 6 public holidays in a year to be a shift worker.

● United Voice are seeking that anyone who works Sundays be regarded as a shift worker thereby significantly widening the entitlement

● Jupiters have requested United Voice explain what their position on the award’s shift worker definition is so we can understand the union’s claim better

● The union have not provided their understanding of the legal position but have instead responded with the employee negotiating position

● The union’s proposed approach to the shift worker definition has serious cost implications that would take away from wage increases

* NSWIRC 1976 Annual Leave Case; NSWIRC Shift Worker Case, AIRC ASU v Western Power Corp PR944613; AIRC Theatrical Employees Award M7325” 3

[9] Ms Dalton said that Jupiters Limited intended that the bargaining committee would decide how to “cut up the pie”. Ms Dalton also said that it was explained to the meeting that the changes under discussion included possible wage increases of 3% in years 2 and 3 of the Agreement and that the wage increase of 1.5% in year 1 was only one way of “cutting up the pie”, and that there were other options available. After caucusing, United Voice representatives informed the Bargaining Committee that their attendance at the next meeting was not guaranteed unless Jupiters Limited revised its wages offer prior to the next meeting.

[10] Ms Collorafi said that her understanding of the proposal put forward by Jupiters Limited on 12 October 2011, was that the actual discretionary wage increase to employees, over and above the cost of implementing the conditions in the National Employment Standards and/or the modern award, was an increase of 1.5%. Ms Collorafi also said that there was some confusion on the part of attendees at the meeting about whether Jupiters’ offer was 3% or 1.5%. A United Voice Delegate told Jupiters Limited that the offer would have to be taken back to his colleagues, but unless it was increased, he did not think it would be worth having further meetings. However Ms Collorafi maintained that no remarks were made by any official of United Voice which indicated that the Union was not prepared to have further good faith negotiations with the company regarding the agreement.

[11] The Report of the outcomes and actions of the meeting of 12 October, disseminated on 17 October, states that: “Jupiters provided a presentation setting out its proposed payroll increases for each year of the 3 year agreement”. The Report also goes on to state that Jupiters will provide a revised document at the next meeting, setting out a further response to the outstanding issues, except pay increases. 4

[12] By email sent at 8.54 am on 26 October, United Voice advised Jupiters Limited that its representatives would not be attending the bargaining committee meeting scheduled for that day because Jupiters Limited had not “come back to discuss a fair and reasonable wages offer” and that the Union looked forward to being in a position to discuss the wage offer before the next scheduled meeting on 9 November 2011. The bargaining committee meeting scheduled for 26 October 2011 went ahead in the absence of United Voice Representatives.

[13] According to Ms Dalton, at the meeting on 26 October 2011, Jupiters provided a revised proposal for wages offering four different “wage increase scenarios”. Ms Dalton also said that it was emphasised by Jupiters that these scenarios were just “suggestions to be considered”. The revised proposal was Appendix “JD-5” to Ms Dalton’s witness statement. It is headed: “Jupiters Wage Increase Scenarios - Bargaining meeting 26 October 2011 Based on a 9% payroll increase - 3% in 2011, 3% in 2012, 3% in 2013.” At the top of the four scenarios, the following appears:

“Please note that these are only suggested scenarios. Other scenarios may be available which Jupiters is willing to discuss. Jupiters have now conducted further detailed analysis of the new definition of shift workers based on those working 34 Sundays/6 public holidays per annum entitled hence the change from a projected cost of 0.65% reducing to 0.34% in this document”

[14] Essentially the four scenarios differ based on whether modern award and National Employment Standard terms and conditions apply from the first year of the proposed agreement, or whether they are phased in over the three year term of the Agreement. The scenarios range from a minimum wage increase of 1.81% in year 1 of the Agreement and 3% in years 2 and 3, to a 2.5% wage increase in year 1 and a 3% increase in years 2 and 3. In all cases the cost of the introduction of modern award and National Employment Standard terms and conditions are shown as part of a 3% payroll increase, and in the case of scenario 4 it appears that some of those terms and conditions will not be introduced at all, resulting in a higher wages outcome overall.

[15] Ms Dalton said in her statement in reply 5 that at the meeting on 26 October, Jupiters’ bargaining representative Mr Clarke spoke to the four scenarios in some detail and explained that scenario 1 was a revised version of the scenario put at the bargaining meeting of 12 October. Mr Clarke also explained that the reason for the change was that Jupiters had done an analysis of the cost of expanding the definition of shift workers based on historical data, and that this revealed a reduction in the cost to Jupiters, which translated into Jupiters being able to offer a higher wage increase than previously anticipated. As a result scenario 1 provided for a 1.81% wage increase in 2011 in lieu of the 1.5% previously offered.

[16] Ms Dalton said that an Outcome document including the four scenarios tabled at the meeting of 26 October 2011 was emailed to all bargaining participants that evening. The Outcome document states that: “Jupiters distributed a Wage Increase Scenarios document (copy attached) that sets out four different ways Jupiters proposed 3 x 3% wage increase per annum can be apportioned between wages and changes to conditions. Three of the four scenarios proposed by Jupiters see a wage increase in 2011 of 2.5%”. 6 A further scenario was also provided at a meeting of 9 November 2011.7 All of the scenarios result in a total payroll increase of 3% for each year of the Agreement. Ms Dalton said that at no time did any representative of United Voice speak to her or ask any questions about the proposed scenarios.

[17] Ms Collorafi said that she did not know what was discussed at the meeting on 26 October 2011, as United Voice and its members did not attend. Ms Collorafi said that the Union was provided with the outcome and actions document following that meeting and agreed that an alternative pay offer appeared to have been made. Ms Collorafi maintained that in providing the four scenarios set out in that document, Jupiters did not revoke or rescind the original offer made on 12 October 2011.

[18] There was a series of correspondence between Jupiters and United Voice in relation to non-attendance of United Voice at the bargaining committee meeting of 26 October. 8 Jupiters’ letter to United Voice of 1 November 2011, referred to in that correspondence was not in evidence. In the correspondence that was in evidence, Jupiters requested that United Voice return to the bargaining table; questioned the motives of the Union in not attending meetings and maintained that United Voice had provided misleading information to employees about Jupiters’ wages offer. United Voice asserted that Jupiters had a fixed bargaining position described as a 9% total payroll cap on wage increases over a three year agreement term, and that such a wages offer is unacceptable.

[19] Ms Dalton maintained that since the bargaining committee meeting on 12 October 2011, United Voice had consistently misrepresented Jupiters’ proposed payroll increase in its communications with employees including flyers and banners. Flyers were distributed by United Voice between 12 and 26 October, referring to “only a 1.5% increase” despite Jupiters’ clear position at the meeting of 12 October that the proposed 1.5% increase for 2011 was only one way of “cutting up the pie” of the 3% payroll increase for 2011 and that wage increases of 3% in subsequent years were possible.

[20] According to Ms Dalton flyers have been posted in bathrooms, corridors, on union noticeboards and bundles have been left in the employee dining room. United Voice has continued to propagate the “1.5% message”, despite the revised pay proposals provided by Jupiters on 26 October 2011, none of which refer to a wage increase of 1.5%. Flyers continuing to refer to a 1.5% wage increase were distributed between 3 and 18 November 2011, and three unauthorised banners were placed on Jupiters’ property by United Voice on 1 November 2011. Ms Dalton gave evidence about bundles of flyers being removed from Jupiters premises and banners being taken down, and maintained that the banners and flyers were not truthful.

[21] On 3 November 2011, Ms Dalton wrote two letters to Mr Bullock, the State Secretary of United Voice, setting out concerns of Jupiters in relation to misleading communications and the placing by United Voice of unauthorised banners and flyers on Jupiters’ property. The matter of the conduct of the persons who placed the banners was not in issue in these proceedings. One of those letters indicated that it was formal notice under s.229(4) of the Act, and sought a retraction of those communications by 8 November 2011. 9 That letter makes complaints that flyers and banners are misleading in asserting that Jupiters has only offered a wage increase of 1.5%, because the offer on 12 October of a 1.5% increase in 2011 was only “one way of cutting up the pie” and included increases of 3% in the second and third years of the agreement. The flyers and banners are said to be misleading because they do not “paint the full picture”. The letter goes on to assert that the four other potential scenarios presented at the meeting of 26 October include a scenario whereby there is a 2.5% wage increase in 2011 and 3% wage increases in 2012 and 2013 and that there may be other scenarios which Jupiters Limited is willing to discuss.10

[22] Ms Dalton said that despite this communication, a further flyer referring to 1.5% was located in the employee dining room on 7 and 8 November 2011. On 8 November 2011, Mr Bullock responded to Ms Dalton’s correspondence, and expressed the view that Jupiters and the Union appeared to hold differing perspectives about how Jupiters’ bargaining offers might be described. Mr Bullock also maintained that such circumstances are not unusual and it was unfair to characterise the Union’s communications as misleading. United Voice again pointed to what it described as Jupiters’ “fixed payroll cap position” and asked whether attendance by the Union at meetings would bring about some change to that position. 11

[23] Ms Collorafi said that in proceedings on 11 November 2011, relating to the application by United Voice for a protected action ballot order, Jupiters had asserted for the first time, that the total 9% payroll cost was not fixed or capped. As a result of that advice, United Voice has not produced any further material relating to the 1.5% wages offer. United Voice also agreed to attend a bargaining committee meeting on 24 November 2011. Ms Dalton agreed under cross-examination that bargaining appeared to be back on track.

SUBMISSIONS

[24] The gravamen of the complaint made by Jupiters Limited is that the LHMU has misrepresented a wages offer made by the company, and in doing so has undermined a fundamental principle of collective bargaining, that individual workers are entitled to rely on what they are told by their bargaining representatives. Individual workers are also entitled to fair and honest communication from their bargaining representatives, in order to make proper choices in the process of making an enterprise agreement so that they can decide whether or not to stand shoulder to shoulder with other workers.

[25] It is also contended that United Voice is in a fiduciary position as agent to its members and that it is no answer to misrepresentation by United Voice that a correction could have been made by the Jupiters Limited. In support of the proposition that a union as bargaining representative stands in a fiduciary relationship with its members, reference was made to a decision of the High Court of Australia in Hospital Products Limited v United States Surgical Corporation and Others (1984) 156 CLR 41.

[26] As the employer, Jupiters Limited is not subject to a fiduciary duty as agent for employees, and in any event, would not be believed in this sort of situation. It is contended that the publication and dissemination of the flyers and banners is unfair conduct on the part of United Voice, and has undermined collective bargaining. It is also contended that United Voice has failed to respond appropriately to requests to retract misleading communications.

[27] For United Voice it is contended that the offer put by Jupiters Limited on 12 October 2011, was framed in such a way that United Voice and employees were entitled to regard the 1.5% wage increase and the 1.5% cost of implementing modern award and National Employment Standard entitlements, as representing the position for each of the three years of the proposed agreement. At best, Ms Dalton’s evidence established that it may have been stated at the meeting on 12 October that 3% increases may flow for the second and third years of the agreement. Mr Reed for United Voice described the document setting out Jupiters’ offer of 12 October as one “only an accountant could love” and submitted that it was reasonable for the Union and employees to have concluded that this position would pertain for each of the three years of the Agreement. It was also submitted that the scenarios outlined at the meeting on 26 October did not constitute an offer, and that the further scenario floated on 9 November was not an offer. Accordingly, the offer made by Jupiters on 2 October was not revoked, and the Union and its members were left with only that offer.

[28] In these circumstances, the banners and the flyers only represented a legitimate criticism of the offer made on 12 October 2011, and even if that was not what was meant by Jupiters, United Voice was perfectly entitled to regard it as an offer that had not been revoked. This is part of the “cut and thrust” of bargaining. It was also submitted that Jupiters had “given as good as it got”, and had not revoked the offer or corrected the situation. Drafts of the agreement produced by Jupiters did not contain any wage increase proposal. Even if United Voice was mistaken about the position, there had been no undermining of collective bargaining. It was further submitted that bargaining is back on track, and there had been no further dissemination of material. This is relevant to the question of whether the order should be made in the event that FWA was otherwise satisfied that the test for making the order had been met.

LEGISLATION

[29] Section 229 of the Act deals with the circumstances in which a bargaining representative may apply for a bargaining order and provides as follows:

“229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.

Multi-enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

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) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.”

[30] The good faith bargaining requirements referred to in s.229(4)(a)(i) are set out in s.228 of the Act in the following terms:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative‘s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(1) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

[31] Section 230 deals with the subject of when a bargaining order may be made, and provides that:

230 When FWA may make a bargaining order

Bargaining orders

(1) FWA 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

(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

(2) FWA 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;

(c) a scope order 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) 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.

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).”

[32] The exercise of the power to make a bargaining order is discretionary, 12 and such an order may only be made if FWA is satisfied that it is reasonable in all of the circumstances to do so.13 It is first necessary to decide whether the power to make a bargaining order is triggered, and then, whether in all of the circumstances, it is reasonable that such an order is made. A misrepresentation by a bargaining representative may provide the basis upon which FWA could be satisfied that the representative has engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining.14

[33] In NUW v Patties Foods 15Vice President Watson observed that:

“Although the integrity of communications is important, it must be remembered that there will inevitably be extensive communications between the various parties and stakeholders engaged in the negotiations of an enterprise agreement. The parties will adopt an approach to their communications which they believe will best achieve their objectives. Some of these communications could well be robust, controversial and at times even disrespectful or mistaken. In my view, in the absence of a pattern of deliberate improper communications, an applicant will find it difficult to establish that a single communication constitutes capricious or unfair conduct of the requisite type.” 16

CONCLUSIONS

[34] I am satisfied that an application for bargaining orders has been made in accordance with the requirements of s.229 of the Act. It is not in dispute that Mr Clarke is a bargaining representative for a proposed enterprise agreement to apply to employees of Jupiters Limited. The nominal term of the existing enterprise agreement has expired and it is clear from the evidence that the requirements of s.229(4) have been met in that Jupiters Limited has concerns that United Voice has failed to meet good faith bargaining requirements; has given written notice setting out those concerns; has given United Voice a reasonable time to respond; and considers that the Union has not responded appropriately to those concerns.

[35] In relation to the requirements of s.230, it is clear that Jupiters Limited has agreed to bargain for an enterprise agreement and accordingly, that one of the necessary requirements of s.230(2) has been met. The issues for determination are whether United Voice has engaged in unfair conduct that undermines collective bargaining, and if so, whether it is reasonable in all the circumstances to make a bargaining order.

[36] I do not accept the submission advanced on behalf of Jupiters Limited that a union acting in the capacity of bargaining representative, stands in a fiduciary relationship to its members. The term stated in the Act is “bargaining representative” and not “bargaining agent”. The critical feature of a fiduciary relationship is that the fiduciary agrees to act on behalf or in the interests of another person, in the exercise of a power or discretion, affecting the interests of that other person in a legal or practical sense. 17 Fiduciary obligations arise from a general rule that a fiduciary must not benefit or gain an advantage from a fiduciary position in terms of conflict of duty or interest, without the informed consent of the beneficiary.18 The mere fact that Unions have a job to do as bargaining representatives as provided in the Act, does not necessarily create a fiduciary obligation.19

[37] It is difficult to see how a union (or its officials or employees who carry out the obligations of the Union as bargaining representative) could obtain a personal benefit, profit or advantage in the context of representing members in negotiations for an enterprise agreement. Further, given that an agreement is not made until it is approved by a majority of employees, it is difficult to see how a Union acting as a bargaining representative can affect the legal interests of members with respect to that agreement. It is also the case that the good faith bargaining obligations in s.228 place significant statutory obligations on bargaining representatives, which are sufficient to ensure that they conduct themselves properly in relation to bargaining, without adding a fiduciary relationship to the mix.

[38] As a general proposition, I accept that a union as bargaining representative for its members has an obligation to accurately and fairly report to them on the progress of bargaining, including various offers that may be conveyed by the employer and that this is encompassed by the good faith bargaining obligations. I also accept that this is a significant obligation, given that members of Unions generally have trust and confidence in the integrity of officials and employees of Unions who are representing them in bargaining for an enterprise agreement.

[39] Although it is not a fiduciary relationship, the special nature of the relationship between a Union and its members in bargaining, is underpinned by s.176(1)(b) which provides a default position to the effect that a union is the bargaining representative for an employee who is a member, unless the employee appoints another person or revokes the status of the Union as bargaining representative. It is also the case that given the special nature of the relationship between a union and its members, an employer will have difficulty correcting a misrepresentation made by a union official or employee of a union in relation to bargaining.

[40] Accordingly a deliberate misrepresentation made by an employee or official of a union that is a bargaining representative, in relation to the negotiations, or the position of another party in those negotiations, could trigger FWA’s discretion to make a bargaining order to correct the misrepresentation, on the basis that it has unfairly undermined collective bargaining.

[41] However, in the present case, I do not accept that United Voice has engaged in misrepresentation, or that the Union has unfairly undermined collective bargaining. I have reached this conclusion for the following reasons.

[42] On 24 August 2011 Jupiters offered a 1.5% wage increase on an interim basis. That amount was also offered on 12 October 2011. The way in which the offer on 12 October 2011 was put, does not make it clear that the 1.5% increase and the cost of the implementation of the modern Award/National Employment Standard conditions, applies only in the first year of the Agreement. There is no reference in that offer to the second and third year of the agreement, and as a matter of logic the costs associated with the implementation of modern Award/National Employment Standard conditions are ongoing costs.

[43] The 1.5% wages offer was made against a background where there had been a delay to the start of negotiations, the current agreement had passed its expiry date and the last wage increase received by employees was over one year earlier. In this context, it is not surprising that the attention of United Voice and its members was fixed on the 1.5% offer, and the position of Jupiters Limited in relation to wage increases as part of a payroll cost increase which also included components for the cost of the implementation of terms and conditions of employment flowing from the introduction of the modern award and the National Employment Standards. Viewed in context, the banners and flyers express disappointment in a 1.5% wages over in circumstances where the start of bargaining has been delayed and employees have not had a wage increase for over 12 months. Seen in their proper context, there is nothing misleading about the banners or flyers.

[44] It is also the case that the “scenarios” floated by Jupiters on 26 October 2011 were not expressed as offers. Further, the scenarios were predicated on a particular interpretation by Jupiters Limited in relation to the circumstances in which shift workers are entitled to an additional week of annual leave. That interpretation may not have been agreed by United Voice, and Jupiters Limited had previously stated that the position of the Union in relation to this matter would impose additional costs and take away from wage increases.

[45] A significant aspect of Jupiters’ complaint of misrepresentation, is that United Voice has not presented the full picture in relation to Jupiters’ wages offer. Essentially, in correspondence to United Voice about the alleged misrepresentation Jupiters raises concerns that United Voice has highlighted the lowest scenario advanced by Jupiters and has not highlighted the highest one. The letter of 3 November placing United Voice on notice about the alleged misrepresentation, asserts that in relation to the 12 October offer, United Voice has stated that the offer is a mere 1.5% and has not referred to other aspects such as the further 6% increase available in 2012 and 2013.

[46] The alleged misrepresentation in relation to the four scenarios advanced on 26 October 2012 is that United Voice has ignored the fact that scenario 4 provided a 2.5% wage increase in 2011, a 3% wage increase in 2012 and a 3% wage increase in 2004. Scenario 4 provided the highest wage increases. Nowhere in its correspondence to United Voice alleging the misrepresentation, does Jupiters Limited assert that the 1.5% offer has been withdrawn or that the figure of 1.5% in that offer has been replaced with 1.81%.

[47] By highlighting the lowest offer in the range of scenarios presented by Jupiters Limited, United Voice has done no more than exercise its right as a bargaining representative to criticise the approach taken by Jupiters to bargain and wages outcomes. Even if Jupiters Limited intended to replace or withdraw the offer incorporating a 1.5% increase in year 1 of the agreement and replace it with the four scenarios advanced on 26 October, at worst, United Voice mistakenly asserted that the lowest increase under those scenarios is 1.5% instead of the actual proposal of 1.81%. This does not amount to misrepresentation.

[48] For the contextual reasons set out above, it was not misrepresentation for United Voice to focus on the wage increase offered in year 1 and to have made no reference to the increases offered in years 2 and 3. Failure to highlight a matter will not necessarily amount to misrepresentation. Further, United Voice has not made any assertion about years 2 and 3 at all. Neither is it misrepresentation for United Voice to have failed to highlight to its members that there were other proposals on the table. In my view, it is not misrepresentation for a Union engaged in robust enterprise bargaining negotiations, presented with a range of scenarios for wage increases, to highlight to its members the lowest outcome available under those scenarios. To find otherwise would result in a situation where Jupiters Limited highlighting the highest outcome in the scenarios could equally be accused of misrepresentation.

[49] The application by Jupiters Limited for a bargaining order is dismissed. I order accordingly.

COMMISSIONER

Appearances:

Mr S. Wood, Mr C. Gardner and Mr R. Clarke on behalf of the Applicant

Mr R. Reed, Mr C. Massy and Mr J. Spreckley on behalf of the Respondent

Hearing details:

2011.
Brisbane:
November 23.

 1   Witness Statements of Kristin Collorofi - Exhibits 1 and 2 in B2011/3821.

 2   Exhibit 1 - Witness Statement of Josephine Dalton - Annexure “JD-2”.

 3   Exhibit 1 - Witness Statement of Josephine Dalton - Annexure “JD-2” page 5.

 4   Exhibit 1 - Witness Statement of Josephine Dalton - Annexure “JD-3”.

 5   Exhibit 2 - Witness Statement of Josephine Dalton in reply.

 6   Exhibit 1 - Witness Statement of Josephine Dalton - Annexure “JD-6”.

 7   Exhibit 5 - Witness Statement of Kristin Collorafi - Annexure “KGC-7”

 8   Exhibit 1 - Witness Statement of Josephine Dalton - Annexure “JD-7” and “JD-8”.

 9   Exhibit 1 - Witness Statement of Josephine Dalton - Annexure “JD-11” and “JD-12”.

 10   Exhibit 1 - Witness Statement of Josephine Dalton - Annexure “JD-12”.

 11   Exhibit 1 - Witness Statement of Josephine Dalton - Annexure “JD-14”.

 12   CFMEU v Tahmoor Coal Pty Ltd [2010] FWAFB 3510 per Giudice J, McCarthy DP and Larkin C at [2]

 13   LHMU v Foster’s Australia Pty Ltd [2009] FWA 750 per Kaufman SDP at [20].

 14   TWU v Veolia Transport Queensland Pty Ltd [2011] FWA 5691

 15   [2011] FWA 4103.

 16   Ibid at [21]

 17   Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 at 96-7 per Mason J.

 18   Chan v Zachariah (1984) 154 CLR 178 at 198 per Deane J.

 19   Hospital Products Limited op. cit. at 71 per Gibbs CJ.

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