Liquor, Hospitality and Miscellaneous Union-Western Australian Branch v Hall and Prior Aged Care Organisation
[2010] FWA 1065
•11 FEBRUARY 2010
[2010] FWA 1065 |
|
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
v
Hall & Prior Aged Care Organisation and Others
(B2010/2603)
COMMISSIONER CLOGHAN | PERTH, 11 FEBRUARY 2010 |
Application for a bargaining order.
[1] This decision relates to an application for a bargaining order by the Liquor Hospitality and Miscellaneous Union (LHMU) pursuant to s.229 of the Fair Work Act 2009 (the Act).
[2] The bargaining order is sought against Hall & Prior Aged Care Organisation (the Respondent).
[3] The application was the subject of a conference on 8 February 2010 and a hearing on 10 February 2010.
[4] At the conclusion of the hearing, I gave an undertaking to the parties to provide my response to the application as to whether a bargaining order should issue by close of business today. I did so because the Respondent has provided its employees with a proposed enterprise agreement, and a postal ballot is to commence on 15 February 2010 and close on 25 February 2010. Obviously, this decision will determine whether the ballot proceeds or not. This decision has been made without the benefit of transcript and some of the customary practices with decisions have not been met due to the commitment which I have made.
[5] The bargaining order(s) sought in the application by the LHMU are as follows:
- That Hall & Prior Aged Care Organisation continue to participate in negotiation meetings until Agreement is reached or the bargaining period is declared over.
- That Hall & Prior Aged Care Organisation refrain from circulating the proposed Employee-Employer Agreement until an Agreement is reached or the bargaining period is declared over.
- That Hall & Prior Aged Care Organisation do not prematurely declare the bargaining period over until all options available to the Application under the Fair Work Act 2009 have been exhausted.
- That Hall & Prior Aged Care Organisation refrain from conduct that undermines freedom of association or the collective bargaining process, including but not limited to, holding meetings with employees pertaining to negotiations or the Agreement without their bargaining representative present and with the purpose of determining how they would vote.
- Any other orders that Fair Work Australia deems appropriate.
[6] Prior to the commencement of the hearing, although the Applicant did not seek to formally to vary the orders sought, its representative provided by way of email, the following statement of orders sought:
- That a bargaining order pursuant to s.229 of the Fair Work Act 2009 be issued to compel the Respondent to continue to negotiate and conduct itself in accordance with s.228 of the Fair Work Act 2009.
- That Hall & Prior Aged Care Organisation refrain from conduct that undermines freedom of association or the collective bargaining process, including but not limited to, holding meetings with employees pertaining to negotiations or the Agreement without their bargaining representative present and with the purpose of determining how they would vote.
- That Hall & Prior Aged Care Organisation do not prematurely declare the bargaining period over until all options available to the Applicant under the Fair Work Act 2009 have been exhausted.
- Any other orders that Fair Work Australia sees fit.
For the purposes of this decision, I have addressed the content of the orders sought in their entirety.
LEGISLATION
[7] For the purposes of this decision, the relevant provisions of the Fair Work Act 2009 (the Act) relating to the application are as follows:
“Section 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).”
[8] The good faith bargaining requirements referred to in sub-paragraph 230(3)(a)(i) are prescribed in s.228 as follows:
“(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.”
[9] While the Respondent questioned the veracity of the “concerns” of the LHMU in relation to sub-paragraph 229(4)(a)(ii), the prerequisites for the Applicant to make an application to FWA for a bargaining order have been met and can be considered by the Tribunal.
BACKGROUND
[10] There are approximately 770 employees to be covered by the proposed agreement.
[11] These employees are currently covered by two certified agreements which were made under s.170LJ of the Workplace Relations Act 1996:
- the Hall & Prior and LHMU WA Aged Care Facilities Certified Agreement 2005 AG845720 PR967139, which has a nominal expiry date of 30 November 2008; and
- the Hall & Prior Aged Care Clarence Estate – LHMU – (Federal) Certified Agreement 2004 G838865 PR955941, which has a nominal expiry date of 20 February 2008.
[12] The LHMU is one bargaining representative for the purposes of the proposed agreement. Some employees have chosen the Australian Nursing Federation (ANF) and others have appointed themselves as their own bargaining agent.
BARGAINING NEGOTIATIONS
[13] On 13 May 2009 a meeting was held between the Applicant Union and the Employer to discuss the possibility and conduct of negotiations. This meeting was followed by a request from the LHMU to begin negotiations on 9 June 2009 and a notice to initiate the bargaining period on 17 June 2009. Also, sometime in June, a LHMU delegation of between 11 and 15 representatives attended the administrative offices of the Employer. While it was variously described in the hearing as a “sit in” and “demonstration”, much does not turn on the fact, except to make up part of the total tapestry of the negotiations.
[14] A pre-negotiation meeting commenced on 2 July 2009 with the first negotiation meeting occurring on 4 August 2009.
[15] Between that first meeting on 4 August 2009 and the final (and thirteenth) negotiation meeting on 1 February 2010, the conduct and performance of the parties include the following:
(a) LHMU log of claims;
(b) response by Employer to log of claims;
(c) discussions on financial and non financial issues;
(d) proposals and counter proposals;
(e) movement from initial bargaining position;
(f) meetings of union members;
(g) meetings of management with staff;
(h) clarification of each others’ position;
(i) delayed, postponed and cancelled meetings;
(j) exchange of information and emails;
(k) “walk out” of delegates in frustration of not being in discussion with “decision makers”;
(l) robust documentation by both parties describing each others’ position. By “robust”, I mean: the LHMU portraying the Employer as “frightening” employees; describing negotiators as “monkeys” (in words and caricature); misleading or inaccurate information (according to the Employer) and the caricatured black suited, cigar smoking “fat capitalist” dragging a trolley load of money. For the Employer, by “robust”, I mean the use of such words as “unfair”, “unreasonable” and “un-Australian” to describe the LHMU as well as portraying their role as wanting “to cause trouble” and providing misleading or inaccurate information (according to the LHMU);
(m) an application by the LHMU and subsequent issuing of a Protected Action Ballot Order on 24 December 2009;
(n) a Protected Action Ballot which did not meet the required percentage to enable industrial action to occur; and
(o) an application by the LHMU and subsequent issuing of a Protected Action Ballot Order on 3 February 2010.
[16] From submissions, evidence and exhibits produced at the hearing, the negotiations were not conducted in the genteel atmosphere of the green and pleasant playing fields of a western suburbs private school; however, that is not the benchmark which I must apply to these applications.
[17] For all that was said in the hearing, in the key area of wages, the LHMU commenced by seeking an increase of 16.5% over three years and revised this figure downwards to 15% and had requested calculations on a 12.5% and 13.5% increase. For the Employer, its commencing position was 6% which was subsequently revised upwards to 11.5% with a provision for a further increase of 2.5% in September 2013, if a new agreement has not been reached or any other increase not passed on.
APPLICANT’S SUBMISSION
[18] The Applicant’s submission, in the first instance, focussed on the alleged failure of the Respondent to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining – essentially, that the good faith bargaining requirements have not been met. In this context, the Applicant referred me to Total Marine Service Pty Ltd v Maritime Union of Australia, The [2009] FWA 290.
[19] In the above case, Commissioner Thatcher states that for FWA to be satisfied that good faith bargaining has not been met, it is necessary to assess all the circumstances including the industrial context, character of negotiators and negotiations. However, Commissioner Thatcher also makes three further observations. Firstly, the need to ask the question (in the negative) whether any of the parties are not genuinely trying to reach agreement; secondly, when making an assessment of the negotiations, to be even handed; and thirdly, referring to the Explanatory Memorandum to the Fair Work Bill 2008, in relation to what was to become s.228 of the Act:
“946. It is anticipated that most bargaining representatives will bargain voluntarily and cooperatively without the need for assistance or intervention from FWA. In the occasional cases where this is not occurring, the Bill provides mechanisms for FWA to facilitate bargaining and, where necessary, make orders to ensure the integrity of the bargaining process.”
[20] In all the circumstances presented at the hearing, I cannot form the conclusion that the Employer is not trying to reach agreement with its employees on the proposed enterprise agreement. Not surprisingly, it is attempting to achieve an outcome that encompasses a number of factors, not the least being the financial sustainability of the business.
[21] For the Employer to achieve an outcome in negotiations which is less than what is sought by bargaining representatives from the LHMU, cannot fall into the category of behaviour that is capricious, unfair or undermining freedom of association or collective bargaining.
[22] The Applicant also, under s.228(1)(e) refers the Tribunal to particular conduct of the Employer during negotiations. However, again to quote the Applicant’s authority in paragraph 19, I must do so in an “even handed way”.
[23] Without doubt, the actions of the Employer such as taking “great delight” in the failure of the Protected Action Ballot; using emotive language and having direct discussions and a “straw poll” of employees, would annoy the Union; however, negotiations are not timid and genteel affairs. Further, and this is clearly a difficulty which the Union faces, it did not come into this hearing with “clean hands” as some of its own deliberate actions, and material, would have similarly annoyed the Employer.
[24] In making these comments, it should not be seen as giving the “green light” to all and any actions of negotiators. The Act is framed in such a way of expectations that parties will conduct themselves in the normal “rough and tumble” of bargaining negotiations, without the intervention of the Tribunal. This is apparent also in another case which the Applicant referred me to, Liquor, Hospitality and Miscellaneous Union v Foster’s Australia Ltd [2009] FWA 750 at paragraph 17.
[25] In the case referred to in para [24], Kaufman SDP stated that the Tribunal should be:
“slow to interfere in the legitimate tactics undertaken by the parties during the bargaining process unless an applicant for a bargaining order has demonstrated that there are sound reasons for doing so.”
[26] Of all the actions taken by the Employer which the Applicant referred to, the issue of misleading information or misinformation, and meetings of staff, were highlighted.
[27] As both parties took objection to certain information circulated during negotiations, it is clear that each put the position they saw which accurately reflected the situation – simply put, the information was from their perspective. The Union stated that it was their duty to inform their members and, for the Employer, to inform their staff. The taking and putting your own (best) perspective on information circulated, is a normal dimension to negotiations, and I find nothing illegitimate in such a tactic.
[28] Similarly, for the Employer to meet with its employees (without bargaining representatives or their delegates present) is not unusual. In such circumstances, the putting forward of the best perspective of the Employer is common. My recollection of the witnesses Ng and Darroch is that the staff meetings were to enable the Employer to go through the proposed agreement, invite questions and to provide feedback to management whether the proposed agreement is acceptable, or what else they would like to see included in the document. With the exception of maybe Mr McSkimming’s comments in relation to the closing down of facilities and the possible loss of jobs, I found that these meetings were conducted in an environment where employees were free to have their say and did so.
[29] Finally, the Applicant highlighted the “confusion” created by the Employer in conducting a “straw poll” on the proposed agreement when the Protected Action Ballot was occurring in January 2010. In this respect, I have to agree with the Employer’s representative that this was a proposition put by the Applicant’s representative and little evidence, if any, was adduced to support the assertion.
[30] I now turn to the Respondent’s submission.
RESPONDENT’S SUBMISSION
[31] The Respondent submits that the order(s) sought in the application are misconceived and FWA has no power to compel the Employer to “participate in negotiation meetings until agreement is reached or the bargaining period is declared over”. I would agree with the Respondent that the Act provides me with no power, at large, to make such an order.
[32] The second key submission by the Respondent is the request for an order to refrain from circulating the proposed Employee-Employer Agreement until agreement is reached or the bargaining period is declared over is also misconceived. Again, I have no power to compel parties to reach agreement or declare a “bargaining period” over.
[33] Similarly, the Respondent submits that I have no power to order that the Employer does not prematurely declare the bargaining period over until all options available to the Applicant under the Act have been exhausted. I agree.
[34] Finally, the Respondent submits that the Employer should not be refrained from holding meetings relating to negotiations or the proposed agreement, without bargaining representative being present. In this respect, the respondent refers me to s.182 of the Act which relates to essential making of an agreement between employees and employers.
[35] Further, the Respondent has referred me to the well established industrial principle that “it is important to encourage communication between employers and employees both directly as well as through their representative organisations” (QNU v Lourdes Home Hostel (2009) FWA 1553, at para 56, and see also LHMU v Mingara Recreation Club 2009 FWA 1442 at para 18).
[36] Simply put, it would be uncommon for employers not to communicate with their employees and I cannot see these meetings, as such, breaching the good faith bargaining requirements. However, I am sure that, on some occasions, the content and conduct of such meetings would breach good faith bargaining requirements but have not seen or heard evidence on this occasion to determine that it falls into this category.
[37] The Respondent, in many respects, addresses the essential matter of this application when it puts the question – has bargaining reached an end point?
[38] The first negotiation meeting commenced on 4 August 2009. The thirteenth meeting occurred on 1 February 2010. During this period, evidence was adduced to demonstrate a fairly thorough, detailed and robust set of negotiations. Evidence was given not only of meetings but repetitive visits by LHMU officials and management to work sites. It is true to say that over this period of time, many issues of negotiation were resolved resulting in a narrow range of outstanding items. The key unresolved issues are wages, and any increase to apply post the expiry of the agreement applicable in September 2013.
[39] Following the thirteenth negotiation meeting on 1 February 2010, the Employer sent to the Applicant correspondence on 3 February 2010 attaching a “clean” version of the proposed agreement incorporating changes discussed and agreed on 1 February 2010. Further, the correspondence advised that the document represented the Employer’s final position but invited the Union to discuss any or all of the non-agreed items on 4 February 2010. The correspondence also set out the Employer’s intention to put the agreement to employees on 5 February 2010 with the intention of commencing the ballot process -- which is now set down for a commencement date of 15 February 2010.
[40] The Applicant did not respond in writing. The Employer contacted the Applicant on 4 February 2010 and was advised by the Union that they considered a further meeting unnecessary; to paraphrase the Applicant’s closing submission, it would be wasting more time by having a further meeting.
[41] Given these circumstances, it is understandable and appropriate for the Employer to consider negotiations are at an impasse and for the employees to make a decision on whether to accept the proposed agreement or not in the terms of the Employer’s final offer.
CONCLUSION
[42] Bargaining between the parties has reached an end point.
[43] I am not satisfied that the Employer in these negotiations, on the basis of the evidence adduced in the hearing, has breached the good faith bargaining requirements.
[44] Consequently, pursuant to the provisions of s.230 of the Act, I am unable to issue the orders sought by the Applicant.
COMMISSIONER
Appearances:
Ms N MacCarron and Mr N Whitehed, on behalf of the Liquor, Hospitality & Miscellaneous Union
Mr N Ellery and Mr C Earnshaw, on behalf of Hall & Prior Aged Care Organisation
Hearing details:
2010.
Perth:
10 February
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