Liquor, Hospitality and Miscellaneous Union v Minda Incorporated
[2010] FWA 3461
•30 APRIL 2010
[2010] FWA 3461 |
|
DECISION |
Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot
Liquor, Hospitality and Miscellaneous Union
v
Minda Incorporated
(B2010/2893)
COMMISSIONER HAMPTON | ADELAIDE, 30 APRIL 2010 |
Application to extend the 30 day period in relation to BP2010/2703.
[1] This is an application by the Liquor, Hospitality and Miscellaneous Union (the LHMU or the union) pursuant to s.459 of the Fair Work Act 2009 (the Act) to extend the period in which certain industrial action must be commenced for the purposes of s.459(1)(d)(ii) of the Act.
[2] The employer concerned is Minda Incorporated (Minda or the employer) and this application has been opposed on a number of grounds. The principal position advanced by the employer is that I should not exercise my discretion to extend the period given the conduct of the union, the impact of industrial action upon the negotiations towards a new enterprise agreement and the other circumstances of the parties.
[3] This matter was listed for mention on Tuesday 27 April 2010 and fully argued on Thursday 30 April 2010. Having had the opportunity to consider the submissions and evidence overnight, I advised on the morning of 30 April 2010 that I had determined to grant the application and would subsequently issue reasons, which I now do.
[4] Much of the background to this matter is set out in a decision dealing with a related s.424 application taken by Minda seeking that I suspend or terminate the protected industrial action as then notified by the LHMU. I will not repeat the summary of facts as outlined at paras [10] to [29] of that decision. 1
[5] It is however appropriate to note for present purposes that the LHMU was granted a protected action ballot order on 26 February 2010 and the Australian Electoral Commission subsequently conducted a ballot and declared the result in favour of the capacity to take action on 24 March 2010.
[6] On 12 April 2010, the LHMU notified intended industrial action however, principally as a result of interim orders issued by me in relation to the s.242 application, no industrial action has taken place.
[7] The 30 day period referred to in s.459(1)(d)(i) of the Act for the industrial action to commence concluded on 22 April 2010.
[8] This application was filed on 22 April 2010 and as would be clear from the above sequence of events, no previous extension to the period has been sought or granted.
[9] Section 459 of the Act provides as follows:
“459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if FWA has extended that period under subsection (3)—during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.
(2) If:
(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and
(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).
(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and
(b) the period has not previously been extended.”
[10] As it arises in this matter, I set out the good faith bargaining provisions of s.228 of the Act as follows:
“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.
(2) 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.”
The positions of the parties
[11] The LHMU, which was represented with permission by Mr Heywood-Smith QC, contended that the prerequisites of s.459(3) of the Act had been met and that an order extending the period should be granted. It argued that in effect, once the prerequisites for the order were met, there was an onus on any party opposing the order to demonstrate why Fair Work Australia should not exercise its discretion to make the order.
[12] In any event, the union contended that it had sought to pursue its claims through negotiations and the taking of protected industrial action, but was frustrated in doing so due to the s.424 proceedings. The LHMU also argued that it had remained available at all times to participate in further negotiations and had conducted its affairs in a manner consistent with the good faith bargaining requirements of the Act.
[13] The union also argued that the other conduct relied upon by the employer in opposing the application was either wrong or misconceived given the scheme of the Act and its endorsement of protected industrial action as part of the bargaining arrangements. Mr Heywood-Smith QC referred to a number of authorities in support of the union’s case. 2
[14] Minda, which was represented with permission by Mr Short, contended that Fair Work Australia should not exercise its discretion to extend the period for protected industrial action. It did so on the basis that the conduct of the parties was a relevant consideration and that the LHMU had not conducted itself in accordance with the good faith bargaining requirements of the Act. 3
[15] In particular, the employer argued that the timing and decision to seek the original ballot application and more particularly, the giving of notice of the intended industrial action (during the course of s.240 conciliation proceedings before Fair Work Australia) were not consistent with good faith bargaining obligations. Further, Minda contended that the union had not disclosed the detail of its position on a number of allegedly outstanding issues.
[16] Minda also argued that the decision by the union to send a letter outlining its position to the home addresses of the organisation’s Board, was an attempt to undermine the employer’s bargaining representatives and was contrary to s.228 of the Act.
[17] The employer further argued that the granting of the extended period would only further distract the parties from further negotiations and that in the context of the long history of negotiations applying here, and given the nature of the organisation concerned, I should not exercise the discretion under the Act.
[18] Mr Short for Minda also advised that it had a s.229 application for a bargaining order ready to file but argued that as it raised the same considerations as in this case, I should have regard to the requirements of s.228 in determining this matter.
[19] Evidence was led from the following:
- Ms Paula Reid – Union Organiser – LHMU
- Ms Larissa Harrison – Industrial Officer - LHMU
- Mr Martin Bolingbroke – Senior Manager of Human Resources - Minda.
Consideration
[20] I am satisfied, and it is not in issue, that the prerequisites for the making of an order pursuant to s.459(3) of the Act have been made out. That is, a relevant period during which protected industrial action may be notified and taken has existed as contemplated by s.459(1)(d)(i) of the Act. Further, the LHMU as the applicant for the protected action ballot has applied to Fair Work Australia to extend the 30 day period as contemplated by s.459(3)(a) and the period has not already been extended – so as to satisfy s.459(3)(b) of the Act.
[21] On that basis, the discretion to grant the application and extend the 30 day period is enlivened.
[22] This discretion is however real, in that an extension need not follow a finding that the prerequisites have been met. The length of the extension, if one is granted, is also a matter of discretion provided that it is no longer than 30 days. In that context I accept that the nature of considerations as contemplated in the authorities relied upon by Mr Short for Minda may be generally relevant in any given matter.
[23] However, whilst the conduct of parties is relevant to that discretion, I would not consider that this is an alternative vehicle to pursue a good faith bargaining order. If Minda were to file an application for a bargaining order as foreshadowed, it would be dealt with on its merits. I would though emphasise that there are prerequisites in s.229 and s.230 that would have to have been met and as discussed in various authorities dealing with the requirements of section 228 4, there is a relatively high benchmark for the making of such an order. To the extent that the same considerations are relied upon in this case, for reasons that I will outline below, I am not persuaded that sufficient grounds have been made out for a finding that the LHMU has failed to act in accordance with s.228 of the Act.
[24] As to the material that is before me in this matter, I consider that the LHMU has made out a case that the extension should be granted. The union is seeking to pursue its claims and the taking of protected action is part of its options for doing so under the Act. Whilst it may not have fully confirmed a position on some of the outstanding matters in the latest draft of the instrument as proposed by Minda, that only applies to relatively minor issues of drafting and intent. The major outstanding issues between the parties that are in effect preventing an agreed document, which are the wage adjustments and the shift work related annual leave entitlements (and related issues) are clearly known to Minda and the union’s claims have been comprehensively articulated, including during conciliation proceedings before me.
[25] An order pursuant to section 418 has been issued by Fair Work Australia on the basis of what was at the time some impending unprotected action, but this occurred in a particular context as set out in [2010] FWA 3217. That order and the related proceedings have however impacted on both the parties’ conduct and the capacity of the union to advance its claims through the taking of protected industrial action.
[26] I do accept that there are issues of concern about the timing and consequences of the decision by the LHMU to originally notify the industrial action. It is the case that this has had a negative impact upon the negotiations of this matter as being supervised by the Tribunal. However, the taking of protected industrial action is part of the bargaining scheme of the Act. Although it was almost inevitable that the giving of the notice of industrial action would distract the parties (as it has done and may continue to do so) such is part of the robust framework within which enterprise bargaining now takes place. It is also evident to me from the related s.424 proceedings that there were issues associated with the timing of the proposed stop work action, to coincide with the so called “Dot day”, that impacted upon the timing of the notice. 5
[27] The union has sought to advance its claims and to act in light of the protected action ballot however as alluded to earlier, this has not been possible given the s.424 proceedings and the operation of the Act in that context.
[28] The other issues associated with the conduct of protected industrial action and negotiations operating here as contended by Minda are also potentially relevant but are not such as to lead me to refuse the application or to consider a period of less than 30 days for the extension. I have in particular considered whether the direct correspondence to the Board of Minda by the union is capable of contravening the objects of the Act and the good faith bargaining requirements of s.228, and in particular ss.(1)(e) and (f). I accept that in some circumstances where this might be done as an alternative to bargaining with the authorised bargaining representatives, conduct of this sort could do so. However, in this case, the one-off communication of the union’s position is somewhat akin to an employer providing direct advice of its position to employees. More importantly, it was not done as a substitute for negotiations with the bargaining representatives.
[29] I would add that the grant of an extension to the ballot notice period is not a blank cheque to cease bargaining in a manner as required by the Act. As discussed by Richards SDP in AWU v Tyco Water Pty Ltd 6, other remedies and options exist for the parties - but only where the necessary prerequisites exist. I also note that there is a live application pursuant to s.240 of the Act for Fair Work Australia to assist the parties in the negotiations, and that matter will be relisted in due course.
[30] I take the view that any extension pursuant to s.459(3) of the Act must operate from the cessation of the original 30 day notice limit. On that basis the extension in this matter will operate for a period of 30 days commencing on 23 April 2010.
[31] I have therefore determined to grant this application and an order 7 that the 30 day period referred to in s.459(1)(d)(i) of the Act be extended for a further period of 30 days, was issued by me earlier today.
COMMISSIONER
Appearances:
P. Heywood-Smith QC (with permission) for the Liquor, Hospitality and Miscellaneous Union.
A. Short of counsel (with permission) for Minda Incorporated.
Hearing details:
2010
Adelaide
29 April
1 Minda Incorporated v Liquor, Hospitality and Miscellaneous Union [2010] FWA 3217.
2 Liquor, Hospitality and Miscellaneous Union v. Griffith University [2010] FWA 2365; and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Amcor Packaging (Australia) Pty Ltd T/A Amcor Cartons Australasia [2010] FWA 120
3 The Australian Workers’ Union v Tyco Water Pty Ltd [2009] FWA 512; National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284
4 See for example: NUW v Chep Australia [2009] FWA 202 and Liquor, Hospitality and Miscellaneous Union v Mingara Recreation Club Ltd [2010] FWA 1442.
5 The significance of the “Dot day “was outlined in [2010] FWA 3217.
6 [2009] FWA 512.
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