National Tertiary Education Industry Union v Curtin University
[2016] FWCFB 6470
•12 SEPTEMBER 2016
| [2016] FWCFB 6470 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
National Tertiary Education Industry Union
v
Curtin University; Edith Cowan University; Murdoch University
(C2016/1440)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 12 SEPTEMBER 2016 |
Appeal against decision [[2016] FWC 3508] of Commissioner Williams at Perth on 2 June 2016 in matter numbers B2016/522, B2016/523 and B2016/524 - jurisdictional finding - failure to meet good faith bargaining obligations - no bargaining order made.
[1] This decision deals with an appeal, for which permission is required, lodged by the National Tertiary Education Industry Union (the NTEU) against a decision 1 issued by Commissioner Williams on 2 June 2016.
[2] In that decision the Commissioner dealt with applications made by Curtin University, Edith Cowan University and Murdoch University (collectively referred to as the Universities) for a good faith bargaining order pursuant to s.229 of the Fair Work Act 2009 (the FW Act). In his decision, the Commissioner determined that the NTEU had not met its good faith bargaining requirements in one particular respect and hence determined that the statutory prerequisites to enable the making of a bargaining order were met. However, having regard to all the circumstances of this matter, the Commissioner declined to make a bargaining order and dismissed the applications.
[3] The NTEU appeal is made pursuant to s.604 of the FW Act. In summary terms, the NTEU asserts that the Commissioner erred in his approach to his conclusion that the jurisdictional prerequisite for the making of a bargaining order had been established. Further, the NTEU assert that the Commissioner erred in his conclusion that a publication issued by it, represented unfair conduct and undermined collective bargaining. Additionally, the NTEU contend that the Commissioner erred by providing either no, or inadequate reasons, for his conclusion that it had engaged in unfair conduct.
The relevant legislation
[4] The relevant sections of the FW Act are set out below:
“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.
Note: See also section 255A (limitations relating to greenfields agreements).
(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.
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 the FWC for an order (a bargaining order) under section 230 in relation to the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
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) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.
230 When the FWC may make a bargaining order
Bargaining orders
(1) The FWC 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) the FWC is satisfied that it is reasonable in all the circumstances to make the order.
Note: See also section 255A (limitations relating to greenfields agreements).
Agreement to bargain or certain instruments in operation
(2) The FWC 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) The FWC 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).”
[5] In his decision, the Commissioner noted that each of the Universities’ agreements provided for renegotiation arrangements and that these agreements specified a common nominal expiry date of 30 June 2016. In this context, the Commissioner noted that the parties differed over requirements to commence bargaining and that the bargaining process was only just being initiated. The Commissioner recorded the context in which the bargaining order applications were made was influenced by a submission made by the Australian Higher Education Industrial Association (the AHEIA) to the Productivity Commission Workplace Relations Framework Review, with particular emphasis on what should or should not be included in agreements. On 27 April 2016 the NTEU published a document, headed “Enterprise Bargaining Update” which referred to a joint statement issued by the Universities on the previous day. This NTEU document included the following statements, which triggered the bargaining order applications:
“NTEU also believes that enterprise agreement should be easily understood. What the Vice-Chancellors have already signalled is that they see simple as being the removal of current rights to fair disciplinary procedures from enterprise agreements, the elimination of all restrictions on the use of fixed-term labour and getting rid of union run health and safety training. While this would result in simple agreements it would certainly not result in fair ones.
The universities have indicated that they intend to bargain as one and that they see consistency of conditions of employment across the whole sector as important. Consistency and fairness is why NTEU has negotiated single agreements to cover all staff at ECU, Murdoch and Curtin. It is to ensure the conditions staff work under are equitable, and why a single agreement will be recommended at UWA.
...
While NTEU has lodged claims at ECU, Murdoch and Curtin in preparation for bargaining, and despite releasing a statement today the Vice-Chancellors at those Universities have indicated they will not be in a position to provide their own claims until late May, some two months after they were required to commence negotiations.” 2
[6] Whilst we note that the NTEU and the Universities’ engaged in further communications, it was this 27 April 2016 publication which was at the centre of both the Commissioner’s decision, and this appeal.
[7] Having considered both the Universities’ and the NTEU’s submissions about this publication and the bargaining circumstances, the Commissioner addressed the relevant provisions of s.229 and 230. He addressed differing contentions over bargaining obligations before discounting complaints that various aspects of the NTEU Update of 27 April 2016 were misleading.
[8] The Commissioner also discounted a complaint about whether the NTEU had stated, or led its members to believe, that the Universities had breached their obligations under the relevant Agreements.
[9] The issue at the centre of this appeal was the Commissioner’s finding that:
“[116] In these circumstances the Enterprise Bargaining Update issued on 27 April 2016 to the extent that it indicated the universities would be pursuing the removal of disciplinary procedures, restrictions on fixed term labour and union run health and safety training in enterprise bargaining was misleading.
[117] The act of issuing this misleading Enterprise Bargaining Update to its members was unfair conduct by the NTEU. This unfair conduct did undermine collective bargaining.
[118] Consequently I am satisfied that the NTEU in issuing this Enterprise Bargaining Update had, on 27 April 2016, not met the good faith bargaining requirements specifically section 228(1)(e) of the Act.” 3
[10] The Commissioner continued and concluded that a subsequent publication issued by the NTEU did not breach the good faith bargaining obligations.
[11] Consequent upon his findings that the NTEU, in issuing its Enterprise Bargaining Update on 27 April 2016, had not met the good faith bargaining requirements specified in s.228(1)(e), the Commissioner concluded that the statutory prerequisite for the making of a bargaining order in s.230(3)(a)(i) had been met together with the statutory prerequisite in s.230(3)(b) of the FW Act. However, he concluded his decision on the following basis:
“[132] In my view it would not be reasonable in the circumstances to make any order because the NTEU by publishing its 9 May 2016 Enterprise Bargaining Update has properly responded to the concerns the universities have rightly raised and from that date onwards the NTEU as required was meeting the good faith bargaining requirements.
[133] Separately the reasons for this decision are able to be provided to the employees of the universities, if the universities wish, to explain the concerns the universities had properly raised with the NTEU.
[134] Finally the evidence is that in the very near future the three universities will be providing the details of their claims to the various bargaining representatives, including the NTEU, and this will, assumedly, negate any past misrepresentation of the Vice Chancellors’ respective bargaining positions.
[135] My decision then is I will not exercise my discretion to make a bargaining order under section 230 of the Act. Accordingly, these applications are hereby dismissed.”
The Submissions on appeal
[12] The NTEU appeal is made on four grounds:
“1. The Commissioner erred in concluding that the jurisdictional pre-requisite in s.230(3)(a)(i) of the Fair Work Act 2009 (Cth) (FW Act) to make a bargaining order had been established, in that:
a. he fell into error in interpreting and construing the words “have not met…the good faith bargaining requirements” by considering only a historical point in time (27 April 2016); and
b. he failed to take into account all of the circumstances prior to the determination of the applications.” 4
[13] In this respect, the NTEU assert that the Commissioner misconstrued the provisions of s.230(3)(a)(i) by not taking into account the state of affairs of the time the bargaining order applications were made on 11 May 2016. The NTEU argues that a proper construction of this section required the assessment of whether the good faith bargaining requirements were being met, to be made at the time the application was made. Accordingly, the NTEU submission was that the jurisdictional pre-requisite for the making of a bargaining order was improperly found. Further, the NTEU asserts that the approach adopted by the Commissioner was inconsistent with the purpose of the good faith bargaining provisions.
“2. The Commissioner erred in finding that the Enterprise Bargaining Update issued by the National Tertiary Education Industry Union (NTEU) on 27 April 2016 (the 27 April EB Update) stated or lead members to believe that Curtin University (CU), Edith Cowan University (ECU) and Murdoch University (MU) had put forward particular claims in bargaining which had not been put forward and was thus misleading.” 5
[14] In this regard, the NTEU asserts that the Commissioner misconstrued the 27 April 2016 Enterprise Bargaining Update such that, when read in its entirety, it should have been clear that this advice informed members of the NTEU that no claims had been made by the Universities.
“3. The Commissioner erred in concluding, in the absence of any evidence or sufficient evidence, that by issuing the 27 April EB Update to its members the NTEU had engaged in unfair conduct which did undermine collective bargaining between the NTEU and each of CU, ECU and MU within the meaning of s.228(1)(e) of the FW Act. 6
“4. The Commissioner fell into error by providing no reasons or inadequate reasons as to why he concluded that by issuing the 27 April EB Update to its members the NTEU had engaged in unfair conduct which did undermine collective bargaining between the NTEU and each of CU, ECU and MU within the meaning of s.228(1)(e) of the FW Act.” 7
Permission to Appeal
[15] The NTEU position is that permission to appeal should be granted because the matter relates to the correct interpretation of the jurisdictional prerequisites in s.230(3)(a)(i) which is a matter not previously considered by a Full Bench. Further, the NTEU asserts that the public interest requirement is met in that, if the appeal is successful it would allow the correction of a decision in which, notwithstanding the Commissioner’s conclusion, there was no jurisdiction. The NTEU asserts that the decision manifests an injustice in relation to the finding that it misled its members, acted unfairly, undermined collective bargaining was not meeting the good faith bargaining obligations. The NTEU contends that the Commissioner’s decision is counterintuitive and, finally, that it is inconsistent with other decisions.
[16] The Universities’ position is that, firstly the NTEU has no standing to appeal the decision in that it is not seeking to change the decision itself as distinct from a conclusion reached within that decision. In this respect, the Universities rely on the provisions of s.604 and various authorities to distinguish between a decision or order and the reasons for that decision or order. Further, the Universities contend that the NTEU is not a “person aggrieved” 8 because the Commissioner’s decision was in the NTEU’s favour in that the applications for bargaining orders were dismissed and its current and future legal rights have not been affected by the decision.
[17] The Universities assert that there are no public interest grounds which support the grant of permission in that the evidence before the Commissioner permitted him to conclude that the NTEU had not met the good faith bargaining requirements in the FW Act.
[18] In terms of the appeal grounds, the Universities assert that the provisions of s.230(3)(a)(i) mean that it is appropriate for the Commission to review the conduct of the bargaining representatives and that the Commissioner’s decision properly reflected that approach. The Universities assert that the Commissioner was able, on the evidence before him, to find that the NTEU Enterprise Bargaining Update of 27 April 2016 was misleading and that no error in this regard has been disclosed. The Universities assert that, having made this finding, it was open to the Commissioner to conclude that the NTEU conduct was misleading. Finally, the Universities assert that the Commissioner adequately detailed the reasons for his conclusions.
Findings
[19] We have considered each of the grounds relied upon in this appeal. We are not satisfied that this is a matter about which permission to appeal should be granted. We are not satisfied that the appeal raises any significant issue associated with the consideration of s.230(3)(a)(i) of the FW Act.
[20] The Commissioner’s findings that the 27 April 2016 NTEU Enterprise Bargaining Update was misleading and unfair conduct and that it undermined collective bargaining, were findings that were open to him on the evidence and do not disclose appealable error. It is clear from the Commissioner’s decision that he took into account the entirety of the circumstances surrounding the commencement of the bargaining process in considering the behaviour of the parties.
[21] In considering the exercise of the discretion then available to him, the Commissioner concluded that the NTEU had properly responded to the universities’ concerns and that it was subsequently proceeding to meet the good faith bargaining requirements. We think it is clear that these conclusions underpinned the Commissioner’s ultimate conclusion that no bargaining orders should be issued. We are satisfied that the Commissioner adequately detailed the reasons for his conclusion. To the extent that the Commissioner noted that the jurisdictional findings were clearly limited to a single event and that the enterprise bargaining process was set to begin in earnest, we see no utility in granting permission in this matter.
[22] Given our conclusions about the Commissioner’s decision we have not found it necessary to address the Universities’ contention that the NTEU lacks standing to pursue the appeal.
[23] For these reasons the appeal is dismissed.
[24] Notwithstanding this, a final observation is appropriate in these circumstances. The information before us indicates that the Universities’ actions following the Commissioner’s decision, may well have substantially invited this appeal. The Universities’ applications for bargaining orders were refused by the Commissioner. Notwithstanding that, it appears to us that the Universities then proceeded to promulgate information which directed attention at the particular finding at issue in this appeal, rather than fairly and properly describing the Commissioner’s decision. In this respect it could well be argued that the Universities have adopted a similar approach to the selective reliance on information to that which they complained about in the bargaining order applications. It seems to us to be unfortunate that both the Universities and the NTEU appear willing to pursue approaches of this nature rather than directing their efforts at achieving agreement. This, however, is a matter for both parties to consider.
Appearances:
Y Bakri counsel for the appellant.
S Andrews for the respondent.
Hearing details:
2016.
Melbourne:
August 17.
1 [2016] FWC 3508
2 [2016] FWC 3508, para [18]
3 [2016] FWC 3508, paras [116] – [118]
4 Form F7-Notice of Appeal, para 2.1, point 1
5 Form F7-Notice of Appeal, para 2.1, point 2
6 Form F7-Notice of Appeal, para 2.1, point 3
7 Form F7-Notice of Appeal, para 2.1, point 4
8 see Tweed Valley Fruit Processors Pty Ltd Ross and Others [1990] IR 393
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