National Tertiary Education Industry Union v University of Queensland
[2009] FWA 90
•18 AUGUST 2009
[2009] FWA 90 |
|
EX TEMPORE DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
University of Queensland
(B2009/10414)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 18 AUGUST 2009 |
Protected action ballot - National Tertiary Education Industry Union and University of Queensland – whether NTEU engaging in pattern bargaining – whether parties bargaining in good faith.
[1] The following decision was given in transcript over the course of the hearing on the evening of 13 August 2009.
[2] But for some minor editing (evidenced by the use of parenthesis […]) the inclusion of a statutory reference, and the introduction of paragraphing, the decision is as it was given in transcript at the time. The decision reads as follows:
(i) “The application as before me is in effect a part-heard matter in relation to an application under section 437(1) of the [Fair Work Act 2009 (“the Act”)] […] for the purposes of a protected action ballot. I'm left with the residual question in relation to that application, and that is for the purposes of section 443(1)(b) of the Act whether or not the Applicant that is the bargaining representative was genuinely bargaining, such that I can make an order.
(ii) […][I sought clarification from the parties] that this […] [was] the only remaining residual issue in the way, in effect, of making the order as sought, on the basis that our previous proceedings have exhausted all other requirements bar this one. [The parties confirmed this was the case.]
(iii) […] Section 443(1)(b) […], in effect by way of the explanatory memorandum in item 1772, gives direction to the Tribunal to consider whether or not the bargaining representative has been genuinely trying to reach an agreement, historically and in contemporaneous terms, and gives direction to the Tribunal to attend to the matter as to whether or not the bargaining representative is pattern bargaining, such that it could be construed to have been genuinely bargaining. In my view the definition of pattern bargaining requires that the Applicant, the bargaining representative, be seeking common terms and conditions in two or more agreements.
(iv) I've previously discussed this in exchange with Mr Rogers but the authority, as it was in 2006 through the decision of the Full Bench in Trinity Garden Aged Care and Another v The Australian Nursing Federation [Appeal by Trinity Garden Aged Care and Anzac Lodge Nursing Home against decision [PR973428] and orders [PR973415] and [PR973416] of Lawler VP of 26 July 2006 – Re: Australian Nursing Federation, Watson SDP, Acton SDP, Smith C, 21 August 2006 [PR973718] (“Trinity Gardens”)], dealt with the terms as they then were in the Act at section 421(1)(b). Those terms being, whether or not the bargaining representative or the union, or the applicant, was seeking common wages or conditions of employment.
(v) In respect of that particular phrase the Full Bench in Trinity Gardens, if I can abbreviate it in that manner, reached the conclusion that it shared the view of Vice President Lawler, whose original decision was under appeal that the definition of "common" was to be found in the meaning of "same" or "identical", such that common wages and conditions of employment were for purposes of establishing the definition of [pattern] […] bargaining, required to be the same or identical wages or conditions of employment.
(vi) I am asked by Mr Rogers to consider the fact that the Fair Work Act 2009 has altered the relevant phrase and has substituted it in effect for the words "is seeking common terms to be included in two or more agreements", that is in some ways may have been taken to have compacted or conflated the broader clause used in the WorkChoices Act, the former Act, at 421(1)[(b)] […] [which read] common wages and conditions of employment. In my view, nothing turns on the changes and the words in the Act […]. The critical requirement is that there be common terms that are sought in respect of two or more agreement[s].
(vii) The generic use of the term "terms" in my view simply compacts or conflates the previous notion of wages and conditions of employment in an effort perhaps to [simplify] […] the wording of the Act. In my mind, it does not otherwise impact on the meaning of the clause. As I said, the critical word is the retention of the word "common" in respect of the terms of the agreements that are sought. That being so, in my view the definition of [pattern] […] bargaining in respect to the notion of common terms and conditions remains that as found by the Full Bench in Trinity Garden[s] […], that is, the common terms must be identical or the same.
(viii) I have previously mentioned that, in my view, given the nature of the claims made by the NTEU it would be impossible to generate for any of the agreements that are under consideration presumably a wages outcome that will be the same or identical and the reason for that [is] that […] [there] has been uncontested evidence before me over the course of this afternoon and this evening that the wages and classification structures in the various agreements differ and as a consequence the wages in the agreements will be differentiated, that is the wage terms in any agreements must be differentiated by a consequence of the impact of the wages claim as sought. I should add as a corollary that in my view, and if I recall it was actually a matter addressed in the Full Bench decision of Trinity Gardens, "wages" is not synonymous as it was in the WorkChoices legislation […] with the notion of a claim for a wage increase.
(ix) They were differentiated matters, one referring to wage rates, that is wages, and the other referring to a goal or an overall increase in those wages. Be that as it may, the claim by the NTEU for a percentage wage increase which is common across the field, as it were, is not the same as a common wage or wage rate such that it could be construed to be a common wages term in an agreement. Because of my view that the Full Bench decision in Trinity Gardens remains a salient authority in relation to the definition of "common" in respect of the phrase "common terms", I must accept that it is not possible on the basis of the claim made by the NTEU that the agreements that are mooted could incorporate identical or same wages provisions, such that the agreements themselves could be construed to be identical or the same.
(x) On that basis alone I am unable to concede to the argument that the NTEU is [pattern] […] bargaining, as defined for the purposes of section 412(1) of the Act.
(xi) I should also say that if I was pressed to determine whether or not the NTEU met the exception provisions of section 412 of the Act, at section 412[(2) and section 412(3)] […], I would also come to the view that on the balance of probabilities my view would be that whilst the NTEU has articulated its industrial goals in the form of claims couched in many instances in the form of broad principles and issues, on the balance of probability the evidence that is put to me tonight suggests that it has historically and in a contemporary context appeared to be willing to alter and modify those headline claims as it were to particular circumstances.
(xii) That matter has been partly conceded by Professor Rix in his own evidence but is also relevant for purposes of the fact that Ms Lee's evidence herself in respect to those matters was uncontested to the extent that Mrs Lee's reflection on the various outcomes or across university agreements in the area of superannuation, wages and salaries, classification structures to which I have already made reference. In respect to parental leave, the restoration of HECE rights and entitlements, in respect of AWA and ITEA limitation clauses, union rights and resources provisions, research related and casuals provisions, and including also in respect of the nominal expiry dates that are sought, that in respect of all of those matters the NTEU remained willing to provide flexibility and had historically provided flexibility in relation to those matters whilst it had none the less historically conducted campaigns which were initially couched in terms of the pursuit of particular principles and high level positions. They were nonetheless eventually in various ways articulated at the ground level in more a precise manner, often reflective of particular situations across universities.
(xiii) One particular area in which Ms Lee's evidence went to and which remained uncontested was the example of the different treatment of some regional universities as opposed to larger metropolitan universities, and Ms Lee referred to the way in which the NTEU has, despite its generic claims, has dealt with outcomes in respect to the Charles Darwin University. I also accede to the evidence by Ms Lee which also went uncontested and I think also accepted by Professor Rix that in some respects the claims at UQ in respect of casual employment had already provided some modification or movement, and indeed was also subject to a joint working group examining the way in which those terms could be applied in the circumstances of UQ.
(xiv) If I were to look at all of those matters and that evidence historically and contemporaneously, it would be sufficient for me on the balance of probability to conclude that whilst there are indeed, were, historically have been and are now claims couched at the high level reflecting headline goals or in principle objectives in many cases, that they are more than likely to prove to be ambit claims in many respects, capable of negotiation and modification at the ground level and as a consequence if I was to be wrong in respect of my views as to whether or not the definition of "common" remained true to the guidance given by the Full Bench decision in Trinity Gardens I would none the less have found that the NTEU on the balance of probability was prepared to negotiate at the enterprise level in respect of its various claims, despite that those claims have a common structure, a common headline and are common issues to be addressed at the macro level across all universities, which in many respects is not surprising.
(xv) I should also add one other matter that I left off that previous list and which just occurred to me as evidence of matters that whilst they are dealt with they are articulated in a generic and principled level as a claim at the point of commencement but are articulated in a local or ground level context at a later date is in respect of travel and working conditions which also I think is a matter which is differentially treated across universities depending on the number of campuses and whether or not its operating within a more internationalised environment. That disposes of considerations in respect of [pattern] […] bargaining.
(xvi) There are more broadly couched issues that may attend a consideration as to the notion of “genuinely trying”. In many respects it may be that there might be some relationship between the notion of genuinely trying and being prepared to, for the purposes of section 228 [of the Act], to be involved in good faith bargaining and to some extent what I am about to say will also assist me in my findings in relation to section 412(3)(c) of the Act as well and should be read as supporting my finding in that regard. Whether it be that section 412 [of the Act] applies or whether or not I should simply have a general [and] […] commonsense regard to the notion […] [of] what it means to be genuinely bargaining or genuinely trying to reach agreement. In my view a number of relevant issues are capable of consideration, either as part of section 228 of the Act or for purposes of a simple construction of the notion of genuinely trying for the purposes of 443(1)(b) of the Act.
(xvii) I should first of all say that much has been said tonight and late this afternoon and this evening about whether or not the industrial action that has been mooted and proposed and threatened and referred to is demonstrative of an unpreparedness to genuinely bargain or to bargain in good faith. Sometimes it can be the case that precipitous recourse to industrial action may well be demonstrative of an unwillingness to genuinely try to bargain, or let alone to bargain in good faith. In many ways the provisions of bargaining in good faith will operate in coexistence with the notion of industrial action and will need to be mapped onto each other, and what will determine the ultimate view in respect of their interaction will be the facts and the circumstances of each case.
(xviii) In this particular instance that is before me the bargaining environment has not been what one might call an ordinary bargaining environment, it has been one that has been extended over a lengthy period of time.
(xix) The log of claims first of all was presented to UQ in May 2008. It wasn't until September 2008 that UQ was able to give an indication that it would not be able to effectively bargain and effectively attempt to reach agreement until late in the first half of the following year, which in effect turned out to be May or late in the first semester [of 2009]. That by necessity extended the bargaining process over a lengthy period of time. UQ in my view had its own reasons for seeking to delay the progression of the bargaining environment. It acted, in my view, reasonably in its own interests, assessing its own funding environment, which is indeed complex.
(xx) Equally so, the NTEU in my view pursued its own agenda, as it would be rationally expected to do, which is to pursue and advance the terms and conditions of employment of its members and by so doing in effect to give effect to the very requirements of its registration as an organisation. I do not see anything in the so-called claim for the NTEU to have taken precipitous action to warrant any adverse finding in respect of whether or not the NTEU is failing to genuinely reach agreement or else not bargaining in good faith. The NTEU has waited for a response to its bargaining proposals for a very lengthy period of time. The initial negotiations did not commence until May of this year and the progression of its various industrial goals has been frustrated by, as I said before, the particular circumstances that faced UQ. Again, I am not prepared to draw an adverse inference from those particular and unique circumstances […] and […] in respect of the NTEU’s conduct and the way in which it has made use of its potential capacity to take industrial action in order to trigger further negotiations and to concentrate UQ on achieving its own industrial goals.
(xxi) I should further say that whilst I have said that, as I said previously in some instances the precipitous recourse to industrial action may well impact upon a finding of whether a bargaining representative is genuinely trying to reach agreement, or else otherwise acting in good faith, but in my view these matters don't arise in the current circumstances for the reasons that I have just given, that the parties were required to pursue their interests in a particular complex environment in which both their actions are open to reasonable explanation. For further purposes of determining whether the NTEU is genuinely trying to reach agreement or else whether or not it is bargaining in good faith, I should also have regard to the frequency of meetings, its willingness to meet with UQ and whether it has refused to meet or has otherwise not responded to matters that are put to it by UQ.
(xxii) The evidence before me establishes that before May of this year (that is effectively between May of 2008 and May of 2009) some two meetings occur[ed] and for reasons that have been adduced in the evidence, [this was] because of the reluctance of UQ to be able to manage the bargaining environment in its budgetary context in amongst other uncertainties.
(xxiii) Other negotiations or rather meetings which have involved varying degrees of intensive negotiations have occurred since May of this year. Some seven meetings, as I understand it from the evidence, have occurred since May of this year. I know one of those has also occurred in August of this year, and as I understand it another one of those is also scheduled for [late] August 2009.
(xxiv) On that basis I am of the view that there is no evidence that the NTEU has failed to meet or has been reluctant to meet with UQ. The [uncontested] evidence of Ms Lee, […], [was] that she for her own purposes is prepared to meet each day, that might be supplementary to my previous findings that the NTEU, in my view, has met its obligations to meet and discuss claims. I see also nothing in the evidence that would give me cause to conclude that the NTEU has acted unreasonably in the conduct of those meetings or otherwise failed to respond to UQ. It is not my view that the Act requires any requirement on parties to respond in detail and writing to every claim that […] [is] put to them. Matters that are conveyed over the course of a week in advance of a meeting are often left, in my view, for reasonable discussion or discussion when the meetings convene and I draw no adverse inference from those sorts of circumstances.
(xxv) There have been meetings, and I have made previous reference to working groups being established, particularly in respect of casual employment and I draw nothing from the evidence that is before me that demonstrates that the NTEU has failed to conduct itself in a way that would give rise to anything other than a conclusion that is genuinely trying to reach agreement. Equally so I see nothing in the conduct of the NTEU that would cause me to make an adverse finding in respect of the good faith bargaining provisions of the Act.
(xxvi) It has been put to me again that the behaviour of the NTEU in seeking recourse to industrial action gives rise to a conclusion that it is not genuinely trying to reach agreement and the evidence that is brought to my attention in that regard is that the NTEU wrote to the UQ on 4 August [2009] but nonetheless filed for protected action ballot the following day. In my view, as I said earlier, the parties will no doubt utilise the good faith bargaining requirements, along with their right and entitlements to take protected industrial action in either tactical or strategic considerations. The fact that bargaining can take place and parties can genuinely try to reach agreement and conduct themselves in accordance with the good faith bargaining principles as it were does not denude [from] them […] the scope to take industrial action or else to utilise the threat or the prospect of industrial action to concentrate and focus the attention of the negotiating parties.
(xxvii) That said, in my view generally, looking at all of those matters that have been raised and the evidence adduced late this afternoon and this evening, the bargaining representative in my view has genuinely tried and is genuinely trying to reach agreement, irrespective of the way in which it has marketed its industrial campaign and the way in which it has articulated its high level industrial goals.”
SENIOR DEPUTY PRESIDENT
Appearances:
K. McAlpine for the National Tertiary Education Industry Union
V. Rodgers of Blake Dawson for the University of Queensland
Hearing details:
2009.
Brisbane:
August, 13.
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