National Union of Workers v Golden Circle Limited

[2013] FWC 5350

[2013] FWC 5350

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Golden Circle Limited
(B2013/1049)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 2 AUGUST 2013

Proposed protected action ballot by employees of Golden Circle Limited.

[1] The National Union of Workers (NUW) is a bargaining representative in relation to a proposed enterprise agreement that would cover certain of the employees of Golden Circle Limited (Golden Circle). The NUW applied under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Golden Circle.

[2] Subsequent to the lodgement of the application, Golden Circle indicated that it opposed the making of a protected action ballot order. The application, along with Golden Circle’s opposition to it, was heard by me on 25 July 2013. At the conclusion of the hearing I determined, on the basis of the material before me, that I was satisfied the requirements in s.443(1) of the Act have been met. Accordingly, I made a protected action ballot order. The order [PR539412] was based on the draft proposed by the NUW in its application but did not include proposed paragraph 3.2 of the draft order as it was accepted by the NUW 1 that no utility is served by including that paragraph in the final order. These are my reasons for making the order.

Statutory scheme

[3] The requirements that relate to protected action ballots are set out in Part 3–3, Division 8 of the Act. A protected action ballot order will only be made on application 2 relevantly, by a bargaining representative of an employee, who will be covered by the proposed enterprise agreement3. It is common ground that the NUW is a bargaining representative of at least some of the employees who will be covered by the proposed enterprise agreement. It is also not disputed that the nominal expiry date of the current enterprise agreement has passed4 and that the NUW served a copy of its application to Golden Circle and to the Australian Electoral Commission, within 24 hours of making the application5.

A protected action ballot order may only be made in limited circumstances 6 and must be made by the Commission if:

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

(b) the Commission is satisfied that the applicant has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted 7.

Golden Circle’s objection

[4] Golden Circle does not dispute that the NUW has made an application under s.437 of the Act, but it opposes the making of an order on the basis that the NUW is not genuinely trying to reach agreement with it. This was the only ground advanced by Golden Circle in opposition to the making of a protected action ballot order 8. Currently, the only issue between the parties is the wages outcome to be applied to the proposed enterprise agreement9. It is around this issue that it is said that the NUW is not genuinely trying to reach an agreement with Golden Circle.

[5] Golden Circle relied upon the evidence of Ms Jennifer Tiffin, the Human Resources Manager for Manufacturing and key negotiator on behalf of Golden Circle in relation to the proposed enterprise agreement. Ms Tiffin gave evidence about the history of the negotiations and described the wage offers that Golden Circle had made in the course of bargaining. Ms Tiffin gave evidence that although the NUW had initially sought a wage increase of 5% per annum as set out in its log of claims 10, apart from an indication given by the NUW on 30 May 2013 that employees wanted a wage outcome closer to 5% per annum, the NUW has not provided any indication of the level of wage increase that it would require to settle this outstanding claim11.

[6] The NUW disputed Ms Tiffin’s evidence and called Mr Quan Chuc, an organiser with the NUW to give evidence. It was Mr Chuc’s evidence that representatives of Golden Circle were told, at a bargaining meeting held on 25 June 2013, that 4% per annum would be an acceptable wages outcome, and that remained the NSW’s position 12.

[7] Golden Circle submitted that I should accept the evidence of Ms Tiffin in preference to Mr Chuc’s evidence and on that basis conclude that the NUW is obfuscating on the question of a satisfactory wages outcome or its failure to disclose what would be an acceptable level of increase, as evidence that the NUW is not genuinely trying to reach agreement with Golden Circle. It further submitted that this refusal or failure is a failure by the NUW to meet good faith bargaining obligations and in particular that obligation set out in s.228(1)(d) of the Act. Consequently, so it was submitted, the failure to give genuine consideration to the proposals of Golden Circle and to give reasons for the NUW’s rejection of those proposals, further suggests that the NUW is not genuinely trying to reach an agreement with Golden Circle 13. In short by refusing to indicate to Golden Circle the level of wage increase that would be acceptable to the NUW, after 30 May 2013 the NUW ceased to engage in meaningful negotiations14.

[8] The NUW submitted that it has been and continues to genuinely try to reach an agreement with Golden Circle on a new enterprise agreement. It submitted that it served a log of claims on Golden Circle on 27 May 2013, it had met with Golden Circle on four occasions to progress bargaining, it had conducted organisers and delegates briefings and feedback sessions on Golden Circle’s proposals, it had conducted surveys of members and made special arrangements with members whose second language was English 15.

[9] The NUW further submitted that progress on all items other than wages has been made. Currently Golden Circle was offering a 3% per annum increase and the NUW was seeking a 4% an increase 16. It submitted that the NUW’s position on a 4% increase per annum was clearly communicated to Golden Circle at a meeting on 25 June 2013, a fact confirmed by Mr Chuc who was present at that meeting17. In all other respects, the statutory requirements for the granting of a protected action ballot order had been met18.

Consideration

[10] The question whether the NUW is genuinely trying to reach agreement with Golden Circle requires a finding of fact arrived at by reference to the circumstances of the particular negotiations 19. Generally, the determination of this factual question will require consideration of the extent to which negotiations have progressed, the steps taken by the NUW to try to reach agreement, the nature of the items about which it seeks agreement and the extent to which these have been identified, and that it has been able to demonstrate that it is provided a considered response to any demands made by Golden Circle20. It is not necessary to show that negotiations have been exhausted, or that the making of this application is the last resort21.

[11] Essentially, although not exclusively, Golden Circle’s objection amounted to an allegation that the NUW was not meeting the good faith bargaining requirements and therefore was not genuinely trying to reach agreement. If Golden Circle is concerned that the NUW is not meeting the good faith bargaining requirements then it has other remedies under the Act to deal with such complaints. However, the concept of genuinely trying to reach agreement should not be confused with, or equated to, the good faith bargaining requirements 22. Self evidently, a party that is not meeting a particular good faith bargaining requirement, may nevertheless still be genuinely trying to reach agreement. Furthermore, the fact that the NUW might be engaging in, what has been described as “hard bargaining”, does not mean that it is not genuinely trying to reach agreement with Golden Circle23.

[12] In this case, the NUW and Golden Circle have progressed bargaining to the point where they are apart only on the question of wage increases. Golden Circle has offered a 3% per annum wage increase, while the NUW has claimed a 5% wage increase per annum, but has indicated it would accept a 4% per annum outcome. This last point is in dispute, and is at the heart of Golden Circle’s objection. I do not need to decide the disputed evidence because even if I accept Ms Tiffin’s evidence, I do not regard it as establishing that the NUW is not genuinely trying to reach agreement. In any event, if it was not apparent from the meeting which occurred on 25 June 2013, that the NUW was prepared to accept a 4% per annum wages offer, based on the evidence of Mr Chuc and the submissions of the NUW during the hearing of the application, Golden Circle should now be in no doubt. Accordingly Golden Circle can respond to the NUW’s position on wages by rejecting it and reaffirming its offer of 3% per annum or by formulating a different offer for the NUW’s consideration. In the circumstances I am satisfied that the NUW has been, and is, genuinely trying to reach agreement with Golden Circle for a proposed enterprise agreement and I was satisfied the requirements in s.443(1) of the Act have been met

[13] A protected action ballot order giving effect to this decision has previously been issued in PR539412.

DEPUTY PRESIDENT

Appearances:

E. Barrett for the National Union of Workers.

B. Cooper for Golden Circle Limited.

Hearing details:

2013.

Melbourne and Brisbane (video hearing):

July 25.

 1   Transcript PN 343 – 345

 2   section 443 (1) (a) and (2)

 3   section 337 (1)

 4   see section 438

 5   see section 440

 6   see section 443 (2)

 7   see section 443 (1)

 8   Transcript PN 256 – PN 261

 9   Transcript PN 263

 10   see Exhibit NUW1

 11   Transcript PN190 – PN 211

 12   Transcript PN 119 – PN 122 and PN137- PN 146

 13   Respondent Submission in Response to Application, 23 July 2013 [15] – [17]

 14   Transcript PN 265

 15   Transcript PN 269

 16   Transcript PN 270

 17   Transcript PN 270

 18   Transcript PN 255 – PN 261; PN 270 – PN 271

 19   Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407

 20   Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407

 21   CEPU and AMWU v Kraft Foods Ltd (2010) 197 IR 12

 22   Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407

 23   see NUW v ACCO Australia Pty Ltd[2009] FWA 226

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