National Union of Workers, New South Wales Branch v Target Australia Pty Limited
[2012] FWA 5719
•9 JULY 2012
[2012] FWA 5719 |
|
DECISION |
Fair Work Act 2009
s.229—Bargaining order
National Union of Workers, New South Wales Branch
v
Target Australia Pty Limited
(B2012/148)
COMMISSIONER ROBERTS | SYDNEY, 9 JULY 2012 |
Application for a bargaining order.
[1] This decision concerns an application made on 5 June 2012 pursuant to s.229 of the Fair Work Act 2009 (the Act) by the National Union of Workers, New South Wales Branch (NUW), for a bargaining order under s.230 of the Act in relation to a proposed agreement for NUW members working at Target Australia Pty Limited’s (Target or the Respondent) Erskine Park premises. The application came before me for determination on 15 June 2012 and final written submissions were completed on 3 July 2012.
[2] The NUW was represented by Mr S Mueller, the Shop, Distributive and Allied Employees’ Association New South Wales Branch (SDA) was represented by Mr B Smith and Target was represented by Mr M Seck of Counsel.
[3] The NUW seeks the issuing of the following order:
“The respondent and his bargaining representative to recognise and bargain with the National Union of Workers, New South Wales Branch as a bargaining representative for the agreement.”
Legislative Framework
[4] Section 229 (Applications for bargaining orders) of the Act relevantly provides:
“Persons who may apply for a bargaining order
(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.
Multi-enterprise agreements
…
(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) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.”
[5] Section 230 (When FWA may make a bargaining order) of the Act provides:
“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).”
[6] Section 231 (What a bargaining order must specify) of the Act relevantly provides:
“(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:
(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;
(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;
(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;
(d) such matters, actions or requirements as FWA considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.
(2) The kinds of bargaining orders that FWA may make in relation to a proposed enterprise agreement include the following:
(a) an order excluding a bargaining representative for the agreement from bargaining;
(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;
…
(3) The regulations may:
(a) specify the factors FWA may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and
(b) provide for FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.”
[7] Section 228 (Bargaining representatives must meet the good faith bargaining requirements) of the Act provides:
“(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.”
[8] Only a bargaining representative has standing to make an application pursuant to s.229 of the Act. Sections 174, 176, 178 and 178A are therefore relevant to my consideration also:
“174 Content of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.
Content of notice - employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before FWA that relates to bargaining for the agreement.
Content of notice - default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
Content of notice—bargaining representative if a low-paid authorisation is in operation
(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).
Regulations may prescribe additional content and form requirements etc.
(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.
176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation
(2) If:
(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and
(b) an employee organisation applied for the authorisation; and
(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;
the organisation is taken to be a bargaining representative of such an employee unless:
(d) the employee is a member of another employee organisation that also applied for the authorisation; or
(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or
(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).
Requirement relating to employee organisations
(3) Despite subsections (1) and (2), an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.
Employee may appoint himself or herself
(4) To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.
Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).
178 Appointment of bargaining representatives—other matters
When appointment of a bargaining representative comes into force
(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
Copies of instruments of appointment must be given
(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:
(a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and
(b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement—be given, on request, to a bargaining representative of an employee who will be covered by the agreement.
Regulations may prescribe matters relating to qualifications and appointment
(3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.
178A Revocation of appointment of bargaining representatives etc.
(1) The appointment of a bargaining representative for an enterprise agreement may be revoked by written instrument.
(2) If a person would, apart from this subsection, be a bargaining representative of an employee for an enterprise agreement because of the operation of paragraph 176(1)(b) or subsection 176(2) (which deal with employee organisations), the employee may, by written instrument, revoke the person’s status as the employee’s bargaining representative for the agreement.
(3) A copy of an instrument under subsection (1) or (2):
(a) for an instrument made by an employee who will be covered by the agreement—must be given to the employee’s employer; and
(b) for an instrument made by an employer that will be covered by a proposed enterprise agreement—must be given to the bargaining representative and, on request, to a bargaining representative of an employee who will be covered by the agreement.
(4) The regulations may prescribe matters relating to the content or form of the instrument of revocation, or the manner in which the copy of the instrument may be given.”
[9] Target has been bargaining with the SDA which had members at the site when the notice of representational rights was issued on 7 February 2012. At that time, the NUW did not have members at the site. During the following months, the NUW acquired some five members who had previously been members of the SDA. On 8 June 2012, the NUW wrote to Target 1 advising the Company of the names of two employees who had been elected as NUW delegates at the site. In an email to Mr Mueller dated 21 June 2012, Mr Smith advised that the two named delegates, Mr Thomas and Mr Collyer, had resigned from the SDA in late 2011 and late March 2012, respectively. The email arose from a request from me during proceedings for a clarification of the membership position of the two NUW delegates.
[10] The NUW claims that it acquired default bargaining representative status when it acquired members at the site. The SDA argues that it remains the bargaining representative for employees who were members of the SDA as at 7 February 2012 unless those former members have revoked the SDA’s status as the employees’ bargaining representative for the agreement and provided a copy of such revocation to Target. 2 If that were to occur, the SDA would apparently not have a problem with the NUW being recognised as a bargaining representative.
[11] Target agrees with the position taken by the SDA in relation to the operation of s.178A of the Act but goes further. It argues that the NUW is not a bargaining representative because it did not have any members employed at the notification time.
[12] There is no dispute between any of the parties that both the NUW and the SDA are entitled to represent the industrial interests of their respective members at Target.
[13] In making my decision in this matter, I have paid careful regard to all of the materials before me, including written submissions and the transcript of the hearing.
[14] The questions before me, are, in summary:
1. Whether the NUW automatically acquired default bargaining representative status when it gained its first member at the site and therefore Target should recognise it and bargain with it in good faith as well as with the SDA.
2. Whether the operation of s.178A of the Act requires the employees who are members of the SDA to formally revoke the SDA’s authorisation to bargain on their behalf because the NUW was not a default bargaining representative as at 7 February 2012.
[15] Target concedes that if one or more NUW members now formally appoint the NUW as their bargaining representative and revoke the SDA’s authorisation then the NUW would become the bargaining representative but it would not have the status of a default bargaining representative as it did not have members as at 7 February 2012.
[16] As Commissioner Cargill observed in John Holland Pty Ltd (NSW/ACT) 3 at paragraphs [58] to [60] of her decision:
“[58] The Act places no express restriction upon when a bargaining representative may be appointed or when such an appointment may be revoked. That this was the specific intention of the legislature is supported by paragraphs 716 and 720 of the Explanatory Memorandum, both of which state that there is no restriction on when a person may appoint a bargaining representative.
[59] In some cases negotiations for an agreement may take many months. During that period of time new employees who will be covered by such an agreement may commence. If Parliament had intended that these new employees had no right of representation then it could have expressly provided so. In the absence of any such provision the broad rights given to existing employees also apply to new employees.
[60] I reject the argument that the CFMEU has no standing because it was not a bargaining representative at the notification time.”
[17] The above observations by Commissioner Cargill were in the context of new employees entering employment after the notice of representational rights had been issued. However, it provides broad guidance to me.
[18] Paragraph 716 of the Explanatory Memorandum to the Fair Work Bill 2009 states:
“There is no restriction on when a person may appoint a bargaining representative. This means, for example, that during bargaining, an employee who is a member of an employee organisation may appoint his or her own bargaining representative with the effect that the automatic appointment of the employee organisation as that employee’s bargaining representative will cease to apply.”
[19] There is some tension between the provisions of s.176(1)(b)(i) and the provisions of s.178A of the Act. On balance, I am satisfied that s.178A of the Act, when read in conjunction with s.174(3) and s.176(1)(b) covers circumstances such as that of the NUW.
[20] It is not disputed that as at 7 February 2012 the SDA was the only union with members at the site and automatically acquired the status of a default bargaining representative. Some of those members later left the SDA and joined the NUW. That situation allowed the NUW to acquire representational rights in relation to the bargaining process but not automatic default bargaining representative status. Target was not to know that the union membership situation had changed at the site and by operation of s.178A of the Act, the SDA remained the bargaining representative of the employees who had later joined the NUW. The question is how the NUW would then activate its representational rights. The prudent way to do so would be for one or more of the new NUW members to formally revoke their default appointment of the SDA as their bargaining representative and to appoint the NUW in its place. The NUW refuses to take this course on the ground that by operation of s.176(1)(b)(i), it has no need to do so.
[21] It could in other circumstances be fairly argued that an employee may not wish to reveal their change of union membership, or indeed their membership of any union, to their employer. However, in this case, the NUW has already advised Target of the names of two of their members by way of their letter of 8 June 2012. 4
[22] In summary, I find that the NUW did not acquire default bargaining representative status automatically when former members of the SDA joined it. Further, the NUW was not a bargaining representative when it made this application pursuant to s.229 of the Act. Accordingly, the NUW did not have standing to make this application and it is dismissed.
[23] However, it is arguable that events since the lodging of the NUW application have changed the dynamics of the bargaining process. The NUW’s letter to Target of 8 June 2012 together with Mr Smith’s email to Mr Mueller of 21 June 2012 make it clear that the NUW now has members and that the two members named in the letter of 8 June have resigned from the SDA. It would be difficult in my view for Target to maintain that the NUW is not now a bargaining representative but to put all doubts aside, the simple path is for the NUW to arrange for one or more of its members to formally notify Target of their appointment of the NUW as their bargaining representative. Target will then have no option other than to bargain in good faith with the NUW as well as the SDA.
COMMISSIONER
Appearances:
S Mueller for the National Union of Workers, New South Wales Branch.
M Seck of Counsel for Target Australia Pty Limited.
B Smith for the Shop, Distributive and Allied Employees’ Association New South Wales Branch.
Hearing details:
2012.
Sydney:
15 June.
Final written submissions:
3 July 2012.
1 Exhibit NUW 2.
2 See s.174(3) of the Act.
3 [2009] FWA 1774.
4 See Exhibit NUW 2.
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