National Union of Workers v Super Retail Group Ltd
[2012] FWA 3753
•13 JUNE 2012
[2012] FWA 3753 |
|
DECISION |
Fair Work Act 2009
s.238—Scope order
National Union of Workers
v
Super Retail Group Ltd
(B2012/568)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 13 JUNE 2012 |
Concerning warehouse and retail employees of Super Retail Group Ltd - bargaining in good faith - fairness and efficiency of bargaining - other matters.
[1] On 23 February 2012 the National Union of Workers (‘NUW’) lodged an application under s.238 of the Fair Work Act 2009 (‘the Act’) for a scope order.
[2] A conciliation and directions hearing was held on 7 March 2012. The matter was heard on 30 April-1 May 2012. Written submissions and witness statements were filed, and written submissions were filed to complete the matter on 14 May, 21 May, and 23 May 2012.
The Act
[3] Section 171 provides:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.
[4] Section 238 of the Act provides:
‘238 Scope orders
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order) under this section if:
(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.
No scope order if a single interest employer authorisation is in operation
(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.
Bargaining representative must have given notice of concerns
(3) The bargaining representative may only apply for the scope order if the bargaining representative:
(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.
When FWA may make scope order
(4) FWA may make the scope order if FWA is satisfied:
(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
(b) that making the order will promote the fair and efficient conduct of bargaining; and
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(d) it is reasonable in all the circumstances to make the order.
Matters which FWA must take into account
(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Scope order must specify employer and employees to be covered
(5) The scope order must specify, in relation to a proposed single-enterprise agreement:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
Scope order must be in accordance with this section etc.
(6) The scope order:
(a) must be in accordance with this section; and
(b) may relate to more than one proposed single-enterprise agreement.
Orders etc. that FWA may make
(7) If FWA makes the scope order, FWA may also:
(a) amend any existing bargaining orders; and
(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by FWA, or take such other actions, as FWA considers appropriate.’
[5] These provisions were first considered by a Full Bench of this tribunal in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board 1. The Bench said:
‘[53] As recorded above, it was submitted by the UFUA and the ACTU that particular weight should be given to the views of employees because of, for example, legislative policy imperatives concerning freedom of association. While we generally agree with that submission it requires some qualification. The power to make a scope order is predicated on disagreement between bargaining representatives. The discretion to resolve that disagreement is to be exercised as provided for in ss.238(4) and (4A). While those provisions do not assign priority to the views of employees, in applying the provisions it is necessary to have regard to the overall context. The legislative scheme supports collective bargaining principles and the Fair Work Act encourages freedom of association and collective bargaining. It may be implied from the legislative scheme that the collective choice of employees is significant. It must be said, however, that while weight should be given to the views of the employees potentially affected, it may be that a proper consideration of the matters specified in ss.238(4) and (4A) in a particular case may make it appropriate to make a scope order contrary to the views of the employees potentially affected.
[54] In its submissions AiGroup sought to limit the circumstances in which an order might be made. We refer in particular to the submission that a scope order should not be made against the opposition of a bargaining representative unless one of the bargaining representatives is pursuing a scope for negotiations which is unfair. That submission must be rejected. It involves adding an additional requirement to those specified in ss.238(4)(b) and (c). If two parties to an application for a scope order advance alternative positions neither of which is objectively unfair but the tribunal is satisfied of the relevant matters and is disposed to make an order, it would be an error not to do so.
[55] The relevant consideration under s.238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made. The relevant consideration under s.238(4)(c) is whether the specified group is fairly chosen. It may be that a number of groupings might be fair – what this criterion requires is that the group which is included in the scope order is fairly chosen. This issue is also dealt with in s.238(4A), which we discuss shortly.
[56] We disagree with the UFUA’s suggestion that as a matter of statutory construction preference ought to be given to agreements that cover as much of an enterprise as possible. Section 238 permits a scope order which does not apply to the whole enterprise. In such a case the tribunal, in deciding whether the group is fairly chosen, must take into account whether the group is distinct in one of three specified respects. It may follow that if the group is not distinct in one of those respects it may not have been fairly chosen, but it does not necessarily follow in all circumstances. For present purposes it is not necessary to speculate upon the circumstances in which the conclusion might not follow.’
[6] In Royal District Nursing Service Limited v Health Services Union; and Australian Nursing Federation 2another Full Bench quoted these and other remarks. Single member decisions with respect to s.238 scope orders include TWU v. Chubb3, ANF4, ASMOF v. Commonwealth5, AMWU v. Shinagawa6, LHMU v. Health Solutions7, Capral v. AMWU8, and AMIEU v. Woolworths9.
Submissions
[7] I have had regard to the all the written submissions and evidence led by each side. Witness evidence was led from:
Mark Ilsley
Mark Schmidt
Peter Kellar
Gerard Robinson
Megan Enright
Mary Mifsud
Luke Fitzpatrick
Lisa Taylor
Graeme Lestor
Darren McPherson
Graham Chad
Alex Falconer
Tabitha Pearson
Nicholas Tindley
[8] The parties are in agreement that the requirements of ss.238(2) and (3) are met 10. The parties are in disagreement as to whether or not the requirements of s.238(4) and (4A) are met. In particular the respondent submits that the applicant is not bargaining in good faith and does not meet the requirement that the tribunal be satisfied that making the order will promote the fair and/or efficient conduct of bargaining. The applicant submits that all requirements of the Act have been met.
Bargaining Meetings
[9] Bargaining commenced in late November 2011 with employer notices being sent to the NUW and SDA and both unions responded with claims. Enterprise negotiation meetings were held on 24 January 2012, 9 February 2012, 21 February 2012, 15 March 2012 11, 4 April 201212, and 16 April 201213. A Team Member Consultative Committee was also involved in two meetings14.
Good Faith Bargaining - Section 284(4)(a)
[10] The respondent submitted that the NUW petition, NUW drafted documents and information sheets about the bargaining, and other conduct by the NUW amounted to a breach of good faith bargaining and required me to reject the application.
The NUW Petition
[11] The respondent submitted that the NUW petition 15 circulated in December 2011 and the manner of its development constitute a failure to bargain in good faith, thus defeating the requirement in s.248(4)(a) that the NUW be bargaining in good faith, and also it appears defeating the requirement in s.248(4)(b) that the making of the order will promote fair and efficient conduct of bargaining. The defects alleged by the respondent include that16:
- it was conducted by the NUW without the involvement of all bargaining representatives including the respondent;
- was agitated during working time contrary to employer directions;
- failed to canvass the views of all employees proposed to be covered;
- included little detail about who the signatories were and information provided to them;
- involved employees signing documents not in the form of the subsequent petition.
[12] A number of other allegations were made about the petition including disagreement with the claims made in the introduction to the petition, and questioning who the signatories were 17. These and other submissions were addressed by the NUW18.
[13] A petition is almost by definition an expression of one point of view rather than an academic or other form of canvassing of the range of views that might exist. To say, for example, that the NUW is not bargaining in good faith because it distributes a petition that expresses the point of view that there should be a separate agreement for Distribution Centres is a somewhat unusual submission to put. It raises for example the question of the extent to which the NUW could distribute a petition containing a log of claims, unless it canvasses other points of view. It is intrinsic to bargaining that such activity is possible. Indeed without similar conduct it is difficult to see what the point of bargaining is, and how it is to be conducted. Given the nature of the NUW membership and the views of many in that membership it is surely a legitimate procedure to also allow the NUW to canvass only Distribution Centre employees rather than all employees. If it could not do that then it would be very difficult for it to actually represent its members on an issue which on the evidence before me some appear to find an important issue. Nor will such a petition meet the stringent requirements of for example a secret ballot under the Act except in unusual circumstances, for reasons including cost and practicability.
[14] These caveats caveat aside, some of the employer submissions have some substance. I am concerned about evidence which suggests that some signatories appear not to actually agree with the petition but signed to avoid trouble 19. I am also concerned about questions of what document was actually signed20, and about the manner in which signatories were obtained which was during working hours and contrary to employer directions21. Ms.Lisa Taylor, DC team member, said that she signed a document without an NUW logo but just ‘plain paper’ and would not have signed it if she knew it was anything to do with the union. Darren McPherson, DC Team Leader said that he signed a plain piece of paper without the NUW logo and if he knew it was ‘to do with the union I would not have signed it’.
[15] Nevertheless there was a degree of inconclusiveness about the overall evidentiary picture. On the limited information before me I find it impossible to simply reject the petition. The respondent stopped short for example of alleging fraud on the part of the NUW, which in the circumstances showed some restraint and care in the presentation of its case 22.
[16] On balance the apparent difficulties with the petition do not in my view extend to a conclusion that by distributing and organising the petition the NUW failed to bargain in good faith. However, the difficulties with the petition mean that I have reservations about treating it as a clear indication of employee views. The weight given to it must be qualified by the questions that were raised about its status as an expression of employee views.
NUW Information Sheets
[17] None of the three written submission filed by the respondent state expressly the nature of the alleged misleading statements in three NUW information sheets or documents. The written submissions include an assertion 23, followed by a further assertion that the applicant’s claims that the sheets were not misleading was ‘disingenuous’ referring to paragraph 87 of Ms.Pearson’s statement24, and then a range of submissions repeating this submission and also alleging that they were not consistent with a Memorandum of Understanding between the parties, and a summary of cross examination of the author of the information statements, Mr.Fitzpatrick25.
31 January 2012 NUW Letter
[18] Ms.Pearson, the General Manager Group Human Resources for the respondent, claimed that there were a number of misleading statements in a letter which the NUW circulated around the Distribution Centres on 31 January 2012 26. Ms.Pearson alleges four misleading statements all arising from the NUW assertion that the respondent forced employee representatives on a focus group ‘to take leave to attend negotiations and pay for their own travel costs’ and associated statements. Ms.Pearson gave evidence that on 24 January 2012 she had agreed to respond to a question about payment of delegates before the next meeting scheduled for 9 February 2012, and that by circulating the 31 January letter the ‘NUW did not respect the agreed timeframe’. She addressed meetings and circulated memorandum correcting the statement, and wrote to the NUW requesting immediate retraction27.
[19] I am satisfied that the respondent never stated that employee representatives on a focus group needed to take leave to attend meetings or negotiations and pay for their own travel costs. That and associated statements were misleading statements. Indeed the NUW never claimed that the statements were correct. It may be the case that the respondent would have been well advised to respond more quickly, but that is not the same thing as the proposals claimed by the NUW.
15 February 2012 NUW ‘Agreement Update’
[20] On 15 February 2012 the NUW circulated an ‘Agreement Update’ 28 following enterprise agreement negotiations held on 9 February 2012. Ms.Pearson gave evidence that five statements or ‘point’s’ in the document were false including that:
- a ‘bargaining committee’ had been ‘sacked’ by the respondent;
- that the respondent claimed the removal of the current entitlement to meal money but instead offered an increase from $12.54 to $15;
- that the respondent had not sought to make it easier to force employees to take leave when it wants but put a proposal improving its ability to ‘manage its team members’ excessive annual leave balances’;
- that it never sought a change ‘to have the ability to adjust the levels of workers if performing different roles’;
- that it ignored the request for a separate warehouse agreement when it considered, addressed and responded to the claim 29.
[21] Ms.Pearson gave evidence that she rang Charles Donnelly, the General Secretary of the NUW on 15 February 2012 and that Mr.Donnelly admitted ‘the wording of the flyer was inappropriate’ but explained the frustration of workers who wanted a separate agreement and negotiations and other matters 30.
[22] Mr.Fitzpatrick NUW Organiser prepared three NUW information sheets for employees, referred to as ‘flyers’. 31 He said that he did not believe ‘that the [second] flyer was inaccurate’. He said by describing the Team Member Consultative Committee as being ‘sacked’ that he meant that ‘they were no longer able to do the role they were initially chosen for’. In relation to payment of flights, accommodation and attendance in paid time he said that the NUW ‘saw the different treatment of NUW delegates attending the negotiations as inequitable’, and that later the company agreed to treat NUW delegates the same32. He agreed that it was not correct for the third flyer to say that the respondent was ‘saying no to an RDO’ and that in fact the company was stating that a ‘trial would occur’33. He accepted that an internal respondent document attached to Ms.Pearson’s witness statement34, which showed that meal allowance would be increased to $15 for the life of the agreement, was ‘probably their position at that point of the negotiation’, but seemed to claim that the position was later changed, although overall appeared to be uncertain of what exactly the company put because he never attended negotiation meetings35. He did not contradict Ms.Pearson’s account of her conversation with Mr.Donnelly36. He agreed or appeared to agree that a letter drafted by him37 was retracted completely by the NUW and never sent. The letter made allegations including that NUW bargaining representatives were ‘forced to take leave to attend negotiations and pay for their own travel costs’ in contrast to TMCC members who could be sacked by the respondent and claiming that equal collective bargaining rights should be respected by the respondent.
[23] This witness statement only dealt with one of the five points raised by Ms.Pearson (that the TMCC was not ‘sacked’), and not the other four. Mr.Fitzpatrick had the opportunity to address the remaining four points by putting in a response affidavit as other NUW witnesses did (eg. Ms.Mifsud) but he chose not to do so, and no satisfactory explanation of why he did not contest Ms.Pearson’s other claims was put. For example he said that he did not because of ‘legal protocol’. It is unclear what was meant by this 38. It was repeatedly suggested to Mr.Fitzpatrick that his flyers were designed to ‘inflame’ not inform Distribution Centre employees. His explanation that oral presentations were used to cure the problem is not particularly convincing, given for example that it is difficult to double check such claims, and he agreed that people who did not attend the relevant meetings ‘would have been misinformed by you’39. This is not on the material before me a fault which necessarily lies specifically with one individual.
[24] It is difficult to assess some of this material. For example, it is conceivable that TMCC members or others saw themselves as having been ‘sacked’, although the respondent had a sound reason for the actions it took, overall. The respondent did not sack a bargaining committee, but rather established a new committee to negotiate an enterprise agreement in place of a committee which was more in the nature of a ‘focus group’. Other matters are clearer, namely, that there is no evidence that the respondent sought the abolition of meal allowances, never sought a change to have the ability to adjust the levels of workers if performing different roles, the annual leave changes were not properly explained, and did not simply reject a proposal for an RDO but agreed instead to a trial. However, balanced against this, the NUW showed some willingness to retract some but not all inaccuracies, and vigorously participated in bargaining in the negotiating forum by attempting to represent its members in Distribution Centres, which is to its credit.
Memorandum of Understanding
[25] The Memorandum of Understanding 40 reached between the NUW and the respondent in 2009 includes an agreement that the respondent:
‘allow the Union Delegate to place formal notices from the Relevant Union that have been approved by Us, on notice boards within the Delegate Area that they represent’
[26] Neither the letter nor the ‘Agreement Update’ distributed by the NUW followed this procedure.
[27] The memorandum also contains provision for a demarcation between the NUW and SDA in Western Australia which should have been complied with. In clause 8 the NUW is expressed to be the relevant union in distribution centres ‘other than Western Australia’. It appears that this demarcation agreement was breached or not clearly followed by the NUW to some extent 41. This again is conduct which counts against the NUW.
Delay in NUW Responses
[28] The respondent also submitted that the NUW delayed its response during bargaining on a number of occasions, and that this constituted a failure to bargain in good faith. I do not accept this submission. The NUW attended meetings, put views and there were some delays in response, but I am not satisfied that its conduct in responding to issues amount to a failure to bargain in good faith.
Conclusion on Bargaining in Good Faith - s.284(4)(a)
[29] During bargaining there will always be some degree of ‘poetic licence’, frustration and emotion will be expressed, and difficult and intangible value judgements and opinions will be made about the nature and benefit or otherwise of offers and concessions. Moreover, the concession made by Mr.Donnelly mitigates NUW failures to some extent, and the NUW did vigorously represent its members in other respects in a manner which appears to be commendable. However I cannot overlook the inaccuracy of statements put out under its name. I have little doubt that the NUW would have responded with great vigour in claiming unfairness and inaccuracy, and breach of collective bargaining rights, if the respondent had ‘informed’ employees about the NUW position in any similar manner. There were other instances of inappropriate conduct regarding the memorandum of understanding.
[30] On balance I am satisfied that the nature of the misleading statements and conduct are such that they constitute a failure to bargain in good faith. I am not satisfied that this failure to bargain in good faith occurred only in the past and then ceased. The conduct complained about was in close proximity to the application being lodged, and is part of a continuing course of bargaining conduct with no major development which would constitute an interruption in that continuing course. If I was to find to the contrary it would be open to a party to engage in bargaining which was not in good faith, and then lodge an application and claim it was currently bargaining in good faith notwithstanding a recent past of clear breaches. This would easily defeat the objectives of the bargaining provisions.
[31] I am therefore not satisfied that the NUW meets the requirements in s.284(4)(a).
Section 284(4)(b) - Fair and Efficient Bargaining
Applicant Submissions
[32] The applicant submits in summary that:
‘7. In summary, the NUW submits that bargaining for the proposed agreement is not proceeding fairly for the following reasons:
i. Distribution centre employees form a very significant minority of the employees who would be covered by the proposed agreement;
ii. A majority of distribution centre employees have a strong preference for an enterprise agreement with the scope proposed by the NUW;
iii. Distribution centre employees are bargaining with two classes of employees (retail and administration) who, because of their operational and geographical distinction, distribution centre employees cannot form a commonality of interest with;
iv. The NUW is unable to properly and effectively agitate its claims during bargaining because of the minority status of the employees for whom it is a bargaining representative; and
v. Distribution centre employees will likely be unable to engage in protected industrial action in support of their claims.
8. The NUW also submits that bargaining for the proposed agreement is not proceeding efficiently for the following reasons:
i. SRG must consider the claims of both distribution centre employees and retail employees in the one meeting between all parties, so that significant time must be spent discussing and giving consideration to claims of exclusive relevance to one class of employee only; and
ii Because of the large number of claims presented by the SDA (on behalf of retail employees who are members of the SDA) and the NUW (on behalf of distribution centre employees who are members of the NUW), there is insufficient time at bargaining meetings for claims to be discussed and considered effectively.’ 42
Consideration of Applicant and Respondent Submissions on Fairness
[33] Firstly, I accept that Distribution centre employees form a minority of the employees who would be covered by the proposed agreement.
[34] Secondly, there will always be some degree of uncertainty about the degree of support that currently exists for the NUW claim for a Distribution Centre specific agreement until a properly conducted secret ballot settles the question. The difficulties with the petition include that it is six months old and is not current, some employees may not have understood or fully understood what they were signing, and there is evidence of some pressure put on some employees to sign it rather than it being simply a genuine expression of support for the petition in all cases. However, subject to these and other qualifications it appears to constitute an indication of employee support for a Distribution Centre specific agreement in Distribution Centres. As I previously indicated however the questions about it mean that its weight must be qualified to some extent.
[35] Thirdly, it is possible to accept the description of the business as composed of three ‘classes’ of employees, namely Distribution Centre employees, administration employees, and retail employees as submitted by the NUW. However, other descriptions of the composition of the business can also be made and are also relevant. Retail employees include some employees engaged in distribution functions. The retail employees include for example employees employed in a number of different types of store, including in Rebel Sport Limited, Boating, Camping and Fishing stores 43. All these categories are of relevance in considering issues of bargaining, given for example that they have different histories of ownership and other matters. It is not possible to adopt the approach taken by the applicant as the only or primarily determinative description of the workforce composition, although that description is also relevant.
[36] Ms.Pearson, the General Manager Group Human Resources for the respondent gave evidence that the respondent’s ‘mantra’ during bargaining had been ‘One Team, One Agreement’. She said that:
‘As a rapidly growing organisation operating in various locations, SRG’s maintenance of its culture as it grows is instrumental in its success.
For example, SRG acquired Rebel in late October 2011, a company with a workforce of approximately 4500 team members, and with its own distinct culture and values. One of my key projects since the acquisition has been to work on the integration from a cultural perspective, including through development of a cultural alignment plan.
The cultural alignment plan has been rolled out in part and is still a work in progress, however, it includes key components such as:
(i) having a single industrial instrument apply to all SRG businesses, which requires SRG to bring Rebel team members under the coverage of its Proposed Agreement. The cost of this is estimated to be $3.1 million;
(ii) familiarising Rebel team members with SRG’s core values and entrenching those values within the organisation;
(iii) introducing SRG issued uniforms, to take effect from 1 July 2012;
(iv) integration of payroll systems; and
(v) facilitating an open line of communication between Rebel and SRG team members (including by joining the intranet systems).
I believe that Rebel’s performance and success will be maximised once the integration and cultural alignment process is complete.’ 44
[37] Mr.Graham Chad gave evidence that SRG’s one team, one agreement structure has been effective in supporting the business’ operations to date, and is necessary to take SRG into the future, and gave evidence about the benefit of such an approach in terms of competitiveness, logistics, supply methods, the benefits of one main rule book of terms and conditions, the integrated nature of the workforce, the main goal of getting goods from suppliers onto the shop floor with speed to market, common goals of employees, avoiding things that disturb that message or dilute the focus and have a detrimental effect, and other matters. He also gave evidence, in response to the evidence of Mary Mifsud, about the ‘substantial gains’ for Distribution centre employees which including the classification structure, specialist functions, allowances, clothing and equipment, wage increases, and other matters 45.
[38] Some of these matters were the subject of contest to some extent, but overall I accept that the respondent has legitimate business interests in maintaining the present arrangement of one agreement to cover all employees, and that there is some force in its view that bargaining on such a basis is both efficient and fair. These considerations on balance outweigh, in my view, other considerations that I am required to have regard to including the views of employees affected by the order.
[39] Fourthly, there is the issue of whether or not the NUW is unable to properly and effectively agitate its claims during bargaining because of the minority status of its employees. Mr.Schmidt, NUW Organiser, was critical of the meetings and progress and negotiations and claimed for example that the length of meetings meant that ‘this is not enough time for the bargaining representatives to discuss claims properly and in detail’, and that ‘most of our forty claims have not been discussed in detail and have not been given their proper consideration’. He attributed this in part to the bargaining being with both the NUW and SDA 46. Mr.Ilsey however said that ‘while the NUW has had some opportunity to raise concerns, the company representatives do not enter into much discussion with us about these concerns. They simply reiterate their position.’47 Ms.Mifsud, warehouse worker, also claimed that not a lot of time was spent discussing issues that were important to warehouse workers, and that when ‘we’ raise important issues ‘I don’t feel like they have been properly discussed’48.
[40] However, this evidence was not consistent with evidence from the respondent including Mr.Tindley 49. He said that Mr.Ilsley had been present at only two of four meetings to date and that the conduct of the meetings do not ‘provide a reasonable basis for his statements’. He also said that the SDA did not disregard the interests of warehouse workers, quite the contrary. In relation to Mr.Schmidt’s statements, he said that Mr.Schmidt had not said at the meetings that he was not given a reasonable opportunity to ask questions or challenge employer responses, and strongly disagreed with his assertion that there had been no ability to enter into a discussion about how claims could be altered so that agreement could be reached. There had in fact been many discussions which resulted in agreement or brought the parties closer to agreement, and gave examples of salaried employees, split shifts and training, job security, and that the NUW’s log has been discussed for a ‘substantial amount of time’. In relation to the evidence of Ms.Mifsud he said that she had ‘been given substantial time to put forward their views and have had those views responded to. Ms.Mifsud has been a very active participator in the negotiation meetings. I would estimate that a substantial majority of the time spent in the negotiations has been spent on matters that are directly relevant to DC employees, either as distinct DC issues or issues that apply to all employees.’ He said that Ms.Mifsud had spoken at length on issues including specialty functions, RDO system, hours of work, sick leave, including evidentiary requirements, overtime and boot allowance. Ms.Pearson gave similar evidence50.
[41] The NUW has put a log of claims which includes issues relevant to it 51. The minutes of bargaining sessions show that the NUW is at least as active and if anything more active in putting its views than are other representatives, and give support to the evidence given by Mr. Tindley and Ms.Pearson. I prefer their evidence to that given by other witnesses. The wage offer made by the employer to Distribution Centre employees is 1 (one) per cent more per annum for three years than that offered to retail employees52. The evidence is that the NUW is actively, and effectively, agitating its claims at present.
[42] It is true that claims of all the representatives are looked at by common heading, but this is not an insurmountable difficulty for the NUW. In fact on occasion the NUW works together with the SDA to produce a common response to the employer claims.
[43] It is also true that the respondent has not accepted all of the NUW claims, including its claim for a separate Distribution centre agreement. However, the respondent has put proposals as has the applicant, and neither are under any obligation to accept all or any of the proposals put by the other side. The bargaining shows a high degree of normality in the bargaining process, including in the extent of frustration and unhappiness at the results of the bargaining to date. It is not unusual for one or other party to become frustrated or worse at the refusal of another party to accede to a claim.
[44] Fifthly, it is somewhat speculative to claim that the NUW will likely be unable to engage in protected industrial action in support of its claims. Even if it is true that this is ‘likely’ to be the case, industrial action is only one consideration that is of relevance. It is not enough for the tribunal to conclude that a scope order is justified because it would assist one party to take protected industrial action. All the evidence and circumstances must be taken into account.
Consideration of Applicant and Respondent Submissions on Efficiency
[45] It is true that during bargaining sessions the parties are required to address both the circumstances of retail and Distribution Centres. However, I accept that the respondent has a legitimate interest in its objective of one agreement to cover all team members 53. This is relevant to both issues of fairness and efficiency. In circumstances where the respondent conducts a range of different types of store it is legitimate for it to attempt to pursue one agreement to ensure efficient negotiations, as well as having regard to issues of fairness between all employees who may have a view on different terms and conditions of employment being afforded to other groups. One negotiating forum enables such different terms and conditions of employment to be discussed in a transparent and open manner by all concerned. It is also a legitimate objective for the employer to afford employees wherever they are employed the same or similar terms and conditions of employment subject to appropriate variations for the specific nature of the job.
[46] Secondly, I do not accept that there is insufficient time at bargaining meetings for claims to be discussed and considered effectively. Claims are made and discussed during the bargaining sessions in an unexceptional manner.
Conclusion on s.238(4)(b) - Fairness and Efficiency
[47] Putting aside my earlier comments about bargaining in good faith, overall in my view negotiations are occurring in an unexceptional manner. The NUW is active in pursuing its claims and has had some success, such as the wage offer made by the respondent which is superior to that made to other groups. There are also areas where it has not been successful, in particular regarding its claim for a separate agreement for Distribution Centre employees. The claim made for a separate agreement is a reasonable claim and the decision of the respondent to resist it is also reasonable. On balance I am unable to conclude that the making of the scope order sought by the NUW would promote the fair and efficient conduct of bargaining within s.238(4). It may in fact have the opposite effect if the order were made.
Sections 238(4)(c), 238(4A) - Group of employees
[48] The respondent alleged that the group of employees was not fairly chosen within s.238(4)(c), having regard to s.238(4A). Many of the issues raised by the respondent in relation to this point have already been dealt with in the discussion in relation to s.238(4)(b). I do not agree that other than the comments in relation to that point that the group of employees that would be covered by the proposed order is other than fairly chosen. They are a distinctive group, namely employees in Distribution Centres, and are also geographically, operationally or organisationally distinct.
Section 238(4)(d) - Order reasonable in all of the circumstances?
[49] I am not satisfied that the making of the order would be reasonable in all the circumstances. In my view apart from the issues relating to bargaining in good faith the bargaining is being conducted in an unexceptional manner, including on the issue of coverage of the agreement or agreements. Both sides are entitled to put the view that they have, and have reasons for so doing. In my view it would not be reasonable to interfere in negotiations by making an order. There is no persuasive reason to do so, because to do so would be to interfere in an ordinary and unexceptional bargaining process.
Overall Conclusion
[50] For these reasons I dismiss the application. An order is contained in PR525038.
DEPUTY PRESIDENT
Appearances:
Mr D Mujkic of the National Union of Workers for the applicant
Mr B Cross of Counsel for the respondent.
Hearing details:
2012
Melbourne, Brisbane (video) and Perth (video)
7 March, 30 April and 1 May
Final written submissions:
2012
14 May, 21 May and 23 May 2012
1 [2010] FWAFB 3009.
2 [2012] FWAFB 1489
3 Asbury C, [2012] FWA 2226
4 Cribb C, [2012] FWA 452
5 Drake SDP, [2011] FWA 5920
6 Sams DP, ]2011] FWA 5935
7 Cloghan C, [2010] FWA 5536
8 Spencer C, [2010] FWA 3818
9 Richards SDP, [2009] FWA 849
10 Respondent’s Written Submissions, 21 May 2012, paragraph 2
11 Exhibit R2, paragraphs 12-35
12 Exhibit R6
13 Exhibit R3
14 Exhibit R2, paragraph 36
15 Exhibit R5
16 Respondent’s Written Submissions, 21 May 2012, paragraph 5
17 Exhibit R2, paragraph 69-70
18 Applicant’s Written Submissions, 23 May 2012, paragraphs 2-11
19 Evidence of Messrs.Lestor and McPherson, transcript PN2379-2385; 2484-2487
20 Exhibit R7, witness statement of Lisa Taylor; Exhibit R8, witness statement of Graeme Lestor; Exhibit R9, witness statement of Darren McPherson; Respondent’s Written Submissions, 21 May 2012, paragraph 8
21 Respondent’s Written Submissions, 21 May 2012, paragraph 5
22 Respondent’s Written Submissions, 21 May 2012, paragraph 8
23 Respondent’s Response to Application for Scope Order (undated, received 7 March 2012), p.6
24 Exhibit R1, paragraph 9
25 Respondent’s Written Submissions, 21 May 2012, paragraphs 10-12
26 Exhibit R2, TP20
27 Exhibit R2, paragraphs 76-83
28 Exhibit R2, TP23
29 Exhibit R2, paragraphs 84-86
30 Exhibit R2, paragraphs 87-89
31 Exhibit NUW14, LF1
32 Exhibit NUW14
33 Transcript PN2202-2206
34 Exhibit R2, tab 10, p.12
35 PN2118-2126
36 PN2165
37 Exhibit NUW14, LF2
38 PN2040
39 PN2196-2206
40 Exhibit R2, TP25, p.3, paragraph 15(e)
41 Exhibit R2, TP25; Transcript PN2744-2748; 2771-2786; Exhibit R2 TP11, at p.8
42 NUW Written Submissions, 14 May 2012, paragraphs 8-9
43 Respondent’s Written Submissions, 21 May 2012, paragraph 24; Transcript paragraphs 709-725
44 Exhibit R2, witness statement of Tabitha Pearson, paragraphs 61-64
45 Exhibit R10, witness statement of Graham Chad, paragraphs7-31
46 Exhibit NUW4, paragraph 14-17
47 Exhibit NUW3, paragraph 2
48 Exhibit NUW12
49 Exhibit R11, paragraphs 5-25
50 Exhibit R2, paragraphs 18-35
51 Exhibit R2, TP7
52 Exhibit R3, p.4
53 Transcript PN151-157
Printed by authority of the Commonwealth Government Printer
<Price code C, PR523295>
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