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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 8317
Decision Date: 5 DECEMBER 2011

CaseChat Overview and Summary

The application for a bargaining order was brought by Jupiters Limited against United Voice, a union representing employees in the hospitality industry. Jupiters alleged that the union disseminated misleading information about the employer's wages offer, which led to industrial action. The court was required to determine whether the union had engaged in conduct that undermined collective bargaining and whether it was misleading in its communications with its members.

The court considered the obligations of bargaining representatives and the nature of the relationship between the union and its members. It found that the union was not required to act in a fiduciary capacity towards its members but had an obligation to act in good faith and avoid misleading conduct. The court examined the union's conduct in highlighting the lowest offer in the range made by the employer and found that it did not amount to misleading conduct. The union was entitled to highlight the lowest offer in the range as it was a legitimate part of the bargaining process. The court concluded that the union had not engaged in unfair conduct that undermined collective bargaining.

Jupiters' application for a bargaining order was dismissed. The court found that the union had not engaged in misleading conduct and had acted in good faith throughout the bargaining process. The court emphasised the importance of the freedom of speech and expression in the collective bargaining process and rejected the employer's argument that the union's conduct was misleading. The court found that the union's conduct did not amount to unfair conduct that undermined collective bargaining.

Orders