National Tertiary Education Industry Union v University of Western Sydney

[2013] FWC 4613

[2013] FWC 4613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
University of Western Sydney
(B2013/161)

VICE PRESIDENT CATANZARITI SYDNEY, 15 JULY 2013

Proposed protected action ballot by employees of University of Western Sydney. Application opposed on the ground that the National Tertiary Education Industry Union has not satisfied the Commission that it “has been, and is, genuinely trying to reach an agreement”. Application for protected action ballot order granted.

[1] The National Tertiary Education Industry Union (the NTEU), pursuant to s.437 of the Fair Work Act 2009 (the Act), made an application to the Fair Work Commission (the Commission) for a protected action ballot to be conducted.

[2] The ballot is to determine whether employees of the University of Western Sydney (UWS) wish to engage in particular protected industrial action for a proposed enterprise agreement.

[3] The application was opposed by UWS.

[4] Hearings on the application were held on 27 June 2013 and 10 July 2013. The initial hearing was adjourned, by consent, to allow the NTEU to file and serve evidence and submissions in light of the evidence and submissions filed by UWS in opposition to the application.

[5] At the hearing on 10 July 2013, the NTEU was represented by Ms E McGrath, a solicitor and Industrial Officer of the NTEU, and UWS was represented by Mr D Gardner, a solicitor and nominated bargaining representative of UWS.

[6] Ms Tamara Talmacs, an Industrial Officer of NTEU NSW Division and Ms Rhonda Hawkins, the Deputy Vice Chancellor – Corporate Strategy and Services of UWS were called to give evidence.

Legislative framework

[7] Part 3-3, Division 8 of the Act provides the relevant legislative framework with respect to protected action ballots. Specifically:

“Section 437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

...

Section 443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

...”

(my emphasis)

[8] Appropriately, UWS did not contest that the NTEU had met the requirements of s.443(1)(a) of the Act. The application before the Commission was clearly made in accordance with s.437 of the Act. Therefore, the only point of contention is whether the NTEU has satisfied the Commission that it has been, and is, genuinely trying to reach an agreement with UWS.

[9] It should be noted that in circumstances where the NTEU can satisfy the Commission that it has been, and is, genuinely trying to reach an agreement with UWS, by virtue of s.443(1), the Commission must make a protected action ballot order. As NTEU pointed out, the Full Bench in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia 1 rightly noted that:

“... there is nothing intrinsically immoral about the taking of industrial action to secure improved terms and conditions. On the contrary, the taking of industrial action for that purpose is a ‘right’ recognised under international law and, in particular, under Conventions to which Australia is a signatory.” 2

Submissions

[10] UWS submitted that the NTEU was not genuinely trying to reach an agreement with the university as it had made a demand, in its letter dated 6 March 2013, that UWS immediately withdraw five of its claims, which the NTEU believed to be “an obstacle to the pursuit of good-faith bargaining” 3. Specifically, the NTEU called upon UWS to withdraw the following claims:

“● the removal of all restrictions on the use of fixed-term employment, and the creation of unspecified new ‘flexible’ categories of employment based purely on the ‘operational requirements’ of the University;

● the reduction of Flex leave for professional staff to one day per settlement period;

● the subordination of annual leave and long service leave to the ‘operational requirements’ of work units;

● the cutting of the maximum amount of severance pay from 80 to 60 weeks;

● reduction of rights for a NTEU presence on campus.” 4

[11] It was submitted on behalf of UWS that these five claims were “major items” for the university and that the demand made by NTEU was “inappropriate”.

[12] It was also submitted by UWS that the NTEU’s conduct at the very beginning of bargaining, including the above demand, casts doubt on whether it can satisfy the Commission that it had, in the past, genuinely tried to reach an agreement. As the legislative test is whether the applicant “has, and is, genuinely trying to reach an agreement” (my emphasis), it was submitted that the NTEU, due to this early conduct, could not satisfy the legislative requirement.

[13] UWS also referred to other conduct which it submitted demonstrated that the NTEU was not, and is not, genuinely trying to reach an agreement. This alleged conduct included failure to respond to UWS’s draft clauses, failure to table its own draft clauses, and seeking to implement a national agenda.

[14] The NTEU, in reply, submitted that it had requested UWS withdraw five of its claims as they were viewed as provocative, but that subsequently, the NTEU agreed to bargain on UWS’s claims in their entirety.

[15] The evidence of Ms Talmacs, which was uncontested, indicated that the parties had spent an estimated 45 hours in bargaining meetings, of which there were 10. 5 Also, six further meetings have been scheduled for the period July to September 2013.6 With respect to the NTEU’s conduct, Ms Talmacs gave evidence that a number of clauses had been discussed during the various bargaining meetings, UWS had tabled very few clauses in accordance with its log of claims and that the NTEU had provided both verbal and drafted responses to all of UWS’s claims.7

[16] In line with the evidence of Ms Talmacs, Ms McGrath submitted that the NTEU had attended numerous bargaining meetings, drafted motions, submitted claims, exchanged draft clauses, entered into various correspondence and that this was indicative of the fact that the NTEU had been, and is, genuinely trying to reach an agreement with UWS. 8 It was also submitted, and not contested, that the NTEU had never stated that it would not negotiate on any claims raised by UWS, or suspend bargaining.9

Genuinely trying to reach an agreement

[17] The Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia 10 considered the correct approach to determine whether an applicant has been, and is, genuinely trying to reach an agreement and explained that:

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s. 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s. 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”

[18] It is clearly not correct to only consider the applicant’s actions at a narrow point in time, whether that be at the beginning of bargaining or at the time the application was lodged, and ignore all that has gone before and after. It is for the Commission to consider all the relevant circumstances of the particular negotiations.

[19] During the cross-examination of Ms Talmacs, Mr Gardner raised evidence that UWS, in a letter dated 18 March 2013 11, put the NTEU on notice of an allegation or a complaint that the NTEU was not bargaining in good faith.12 I took this to be an attempt to prove that the NTEU was not bargaining in good faith at that point it time, and therefore it could not satisfy the Commission that it had been, at that time, genuinely trying to reach an agreement.

[20] However, ‘genuinely trying to reach an agreement’ should not be confused with ‘good faith bargaining’. In Transport Workers' Union of Australia v CRT Group Pty Ltd 13, Hamberger SDP noted:

“[26] While there is a relationship between ‘genuinely trying to reach an agreement’ and ‘bargaining in good faith’ it would be wrong simply to conflate the two terms. Even if I had found that the TWU was not bargaining in good faith – something I have not done – that would not necessarily mean that the TWU was not genuinely trying to make an agreement. Indeed the Explanatory Memorandum to the Fair Work Bill 2008 states, when dealing with the ‘genuinely trying to reach an agreement’ expression in s.413 (Common requirements that apply to industrial action to be protected industrial action):

“…The question whether a person is genuinely trying to reach an agreement requires a subjective assessment of the actual intention of the person and the overall circumstances. It is not limited to an assessment of whether the person is complying with the good faith bargaining requirements”.”

[21] Like Hamberger SDP in that case, I make no finding in this instance on whether or not the NTEU was bargaining in good faith, in March 2013 or at any other time. Apart from the allegation or complaint noted above, no evidence was adduced on that point. Furthermore, this application does not require me to draw a conclusion on the issue and I do not consider it helpful in these circumstances to do so.

[22] Although Mr Gardner did not take his submission that far, it would not be correct to say that past conduct which fell short of genuinely trying to reach an agreement, or indeed bargaining in good faith, would forever defeat an application for a protected action ballot order. The conduct, past and present, in all the relevant circumstances, must be considered in order to assess the intentions of an applicant.

[23] In this instance, I am persuaded by the submissions made on behalf of the NTEU and the evidence of Ms Talmacs. In circumstances where it has attended a substantial number of bargaining meetings, provided a log of claims, responded to UWS’s log of claims, drafted clauses and responded to UWS’s draft clauses, I am satisfied that the NTEU has, and is, engaged in a bargaining process which cannot be characterised as being not genuine. While requiring UWS to withdraw its “major items” can be viewed as aggressive, ‘hard bargaining’ is not uncommon, or indeed inappropriate. The NTEU’s efforts can be characterised as authentic and I am satisfied that they have proved a willingness to bargain.

[24] It is noteworthy that, notwithstanding the alleged inappropriateness of the NTEU’s demand that UWS withdraw five of its “major items”, UWS entered into an agreement with the NTEU and went on to attend numerous bargaining meetings, exchange draft clauses, enter into correspondence and what could be described as engage in a normal or typical bargaining process. To use Mr Gardner’s analogy, the dinner party proceeded even though the hosts were allegedly offended that its meat and potatoes were untouched by the guests.

[25] Accordingly, in light of my findings above, I am satisfied that the NTEU was, and is, genuinely trying to reach an agreement with UWS and that, in turn, the NTEU has satisfied the requirements of s.443(1) of the Act.

[26] Appropriate orders will be issued with this decision.

[27] I note that although the NTEU had initially indicated that, if successful with its application, it is seeking a costs order against UWS; the costs application was withdrawn by Ms McGrath at the conclusion of the hearing on 10 July 2013.

VICE PRESIDENT

Appearances:

E McGrath for the NTEU.

D Gardner of Maddocks Lawyers for UWS.

Hearing details:

2013.

Melbourne and Sydney (video hearing):

June 27.

Sydney:

July 10.

 1   [2010] FWAFB 9963.

 2   J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia[2010] FWAFB 9963, [68].

 3   Statement of R Hawkins, affirmed on 27 June 2013, Annexure “A”.

 4   Statement of R Hawkins, affirmed on 27 June 2013, Annexure “A”.

 5   Statement of T Talmacs, affirmed 10 July 2013, paras 14 and 15.

 6   Statement of T Talmacs, affirmed 10 July 2013, para 18.

 7   Statement of T Talmacs, affirmed 10 July 2013, paras 20 and 23.

 8   Transcript (B2013/161), 10 July 2013, PN602-PN603.

 9   Transcript (B2013/161), 10 July 2013, PN604.

 10   [2009] FWAFB 368.

 11   Statement of R Hawkins, affirmed 27 June 2013, Annexure “B”.

 12   Transcript (B2013/161), 10 July 2013, PN230-PN235.

 13   [2009] FWA 425.

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