Liquor, Hospitality and Miscellaneous Union v Mingara Recreation Club Ltd
[2009] FWA 1442
•1 DECEMBER 2009
[2009] FWA 1442 |
|
DECISION |
Fair Work Act 2009
s 229 - Application for a bargaining order
v
Mingara Recreation Club Ltd
(B2009/11076)
VICE PRESIDENT WATSON | SYDNEY, 1 DECEMBER 2009 |
Application for a bargaining order - prerequisites for an application – requirements for an order – whether holding a meeting with employees in the absence of a bargaining representative is inconsistent with good faith bargaining requirements – Fair Work Act 2009 ss 228, 229, 230, 231.
Introduction
[1] This decision concerns an application pursuant to s 229 of the Fair Work Act 2009 (the Act) by the Liquor, Hospitality and Miscellaneous Union (LHMU) for a bargaining order under s 230 of the Act relating to a proposed enterprise agreement at Mingara Recreation Club Ltd (Mingara).
[2] The application was made on 23 November 2009. It sought orders in the following terms:
“• That the employer, recognise, and bargain with the Liquor & Hospitality Division, Liquor Hospitality Miscellaneous Union, NSW Branch as a duly nominated bargaining representative.
• That the Liquor & Hospitality Division, Liquor Hospitality Miscellaneous Union, NSW Branch (as a duly nominated bargaining representative) be permitted to attend any meeting that relates to or includes the conveyance, and/or discussion of information, to or with employees, pertaining to the proposed and/or actual negotiation of an enterprise agreement, with employees of Mingara Recreation Club Ltd.”
[3] The matter was heard on 1 December 2009. Mr C Acev and Ms P Foot represented the LHMU. Ms K Gower and Ms D Hynes represented Mingara.
Background
[4] The facts of this matter are not in dispute. They are contained in the grounds for the application and the uncontested evidence of the parties from the bar table.
[5] Mingara is a recreation club located in the Central NSW Coast region at the southern end of Tuggerah Lake. It provides leisure and entertainment facilities. It is currently covered by a Notional Agreement Preserving a State Award arising from the Club Employees (State) Award. 1
[6] At least six employees have appointed the LHMU as a bargaining representative in accordance with s 178 of the Act.
[7] In mid November 2009, Mingara posted a notice on the staff notice board advising of a meeting it proposed to hold with all staff on 21 November 2009. The notice indicated that the meeting would cover “The award modernisation process covering, What is Award Modernisation, What is an EBA, Mingaras intention moving forward to maintain current conditions and pay rates as part of the process of an EBA”.
[8] Mingara states that the intention of the meeting was to provide basic information to staff, and to allay fears and concerns that had been circulating about changes to conditions of employment arising from award modernisation.
[9] LHMU area organiser Pauline Foot attended the Club for the purposes of attending this meeting. She was denied access to the meeting on the ground that the meeting was only an information session and no discussions or negotiations would be taking place.
[10] Mingara and the LHMU will be meeting tomorrow, 2 December 2009 for the purposes of commencing negotiations for an enterprise agreement.
Prerequisites for the application
[11] Section 229(4) of the Act provides that a bargaining representative may only apply for an order if it has given a notice to the relevant bargaining representative setting out its concerns that the other has not met or is not meeting the good faith bargaining requirements, or the bargaining process is not proceeding efficiently or fairly. This Tribunal can nevertheless consider an application if it is satisfied that it is appropriate in all the circumstances to do so: s 229(5).
[12] The LHMU admits in its application that it has not given Mingara any such notice and seeks that the matter be nevertheless dealt with in accordance with the discretion of the Tribunal under s 229(5).
Requirements for an order
[13] A bargaining order can only be made if the requirements of s 230 are met and the Tribunal is satisfied in all the circumstances to make the order: s 230(1). It is not in dispute that Mingara has agreed to bargain and therefore the requirement in s 230(2) is met.
[14] The LHMU contends that the circumstances outlined above, and specifically the refusal to allow Ms Foot to attend the meeting of 21 November 2009, establishes that Mingara has not met its good faith bargaining requirements. It contends that the refusal amounts to not disclosing relevant information and not recognising the other bargaining representative: s 228(1)(b) and (f). It contends that the refusal of an employer to allow a bargaining representative official to attend a meeting between management and staff where enterprise bargaining will be discussed is fundamental to the good faith bargaining requirements of the Act.
[15] Mingara contends that the circumstances do not amount to a breach of the good faith bargaining requirements. It contends that it is free to communicate with its employees about general award modernisation and bargaining processes in the absence of bargaining representatives.
[16] The requirements for good faith bargaining orders under the Act are quite specific. The Tribunal does not have a general discretion to make orders it considers appropriate in relation to bargaining. 2 The scheme of the relevant provisions is that specific concerns should be raised directly with the other bargaining representative in the first instance (s 229(4)), the Tribunal must be satisfied that a bargaining representative has not met the good faith bargaining requirements or the bargaining process is not proceeding efficiently or fairly (s 230(3)) and any orders must specifically address the requirements of the bargaining representative to meet the relevant good faith bargaining requirements (s 231).
[17] The LHMU has not established that holding a preliminary information meeting with staff in the absence of a bargaining representative is inconsistent with the good faith bargaining requirements of the Act. Mingara has not refused to meet with the LHMU. It will be doing so shortly to specifically discuss an enterprise agreement. It has not denied the LHMU any relevant information. It has not denied the LHMU access to its staff. All it has done is refuse to allow an LHMU official to attend a particular meeting Mingara held with its staff prior to the commencement of negotiations.
[18] In my view, communicating with staff is good management practice. If such communications are not accompanied by a refusal to meet and communicate with a bargaining representative, then in my view there is no breach of the good faith bargaining requirements of the Act.
[19] The obligations under the Act relate to genuine recognition and genuine bargaining activities with other bargaining representatives. They do not preclude concurrent communication and discussions with the employees who may be requested to approve the agreement. In my view, an employer is free to meet with its employees to discuss employment issues, including matters relevant to enterprise bargaining in the absence of bargaining representatives. Widespread communication is to be encouraged – not regulated, diminished or monopolised.
[20] For these reasons, I do not believe that the LHMU has established that Mingara has not met any good faith bargaining requirement. Further, I am not satisfied in all the circumstances that it would be reasonable to make the orders sought by the LHMU.
[21] In addition, the failure of the LHMU to comply with the prerequisite for the application under s 229(4) denied it and Mingara the opportunity to focus on the precise alleged breaches of the good faith bargaining requirements which is necessary for any order to be made. The application should not have been made without this important step being taken.
Conclusions
[22] The application for orders under s 229 of the Act is dismissed as the LHMU has failed to establish the requirements for an order or comply with the pre-requisites for making its application.
VICE PRESIDENT WATSON
Appearances:
C Acev with P Foot for the Liquor, Hospitality and Miscellaneous Union
K Gower with D Hynes for Mingara Recreation ClubLtd
Hearing details:
2009
Sydney
December 1
1 AN120136
2 National Union of Workers v CHEP Australia Limited[2009] FWA 202
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