Queensland Nurses' Union of Employees v The Corporation of the Roman Catholic Diocese of Toowoomba T/A Lourdes Home for the Aged, Lourdes Home Hostel

[2009] FWA 1553

[2009] FWA 1553

The attached document replaces the document previously issued with the above code on 7 December 2009.

The Decision has been varied to include a new footnote at the bottom of page 9.

Caroline O’Connor

Associate to Senior Deputy President Richards

Dated 10 December 2009

[2009] FWA 1553

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Queensland Nurses' Union of Employees
v
The Corporation of the Roman Catholic Diocese of Toowoomba T/A Lourdes Home for the Aged, Lourdes Home Hostel
(B2009/11114)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 7 DECEMBER 2009

Summary – good faith bargaining orders – whether employer had agreed to or initiated bargaining – precondition to an application under s.228 - when is an employer a bargaining representative and regulated by s.228 – whether an employer can ascertain views of its employees directly.

[1] On 1 December 2009 the Queensland Nurses' Union of Employees (“QNU”) made an application for orders under s.229 of the Fair Work Act 2009 (“the FW Act”) against the Corporation of the Roman Catholic Diocese of Toowoomba, trading as Lourdes Home for the Aged, Lourdes Home Hostel (“the Employer”).

[2] At the request of the QNU, the matter was brought on for hearing on 4 December 2009.

[3] The QNU was of the view that the Employer had agreed to bargain for a proposed agreement but subsequently refused to meet the QNU and to participate in the bargaining process by attending meetings. This conduct ostensibly amounted to a contravention of several of the provisions of s.228 of the FW Act (which are set out below), including s.228 (1)(a) and s.228 (1)(f) of the FW Act.

QNU’s Submissions

[4] The QNU contends that by correspondence dated 16 September 2009 that it indicated to the Employer (in the person of Ms Lategan, the Care Centre Manager for the Employer, and an employee of the Employer) that it sought to make a proposed agreement on the various terms set out in its claim, which formed the substance of the correspondence.

[5] On 21 October 2009, Mr Adam Priest, Human Resources Manager and Workplace Health and Safety Manager replied to the correspondence of 16 September 2009 in the following terms:

“We have received your request for a meeting to discuss negotiations of an enterprise agreement and are available to meet on Monday 9^th November 2009 at 10.00am.”

[6] This response from Mr Priest (whose status is later discussed) was taken by the QNU to be sufficient in its own right (or else along with other conduct set out below) to indicate that the Employer had agreed to bargain for the proposed agreement (within the framework of the claims as indicated).

[7] According to the submissions by the QNU, a meeting was convened on 9 November 2009 at which Mr Priest and Ms Lategan were in attendance. At that meeting the QNU claims the Employer’s representatives, as bargaining representatives, conducted themselves in a manner that was consistent with the bargaining process being on foot.

[8] The QNU also states that as a result of that meeting it undertook to prepare a draft agreement in advance of the Board meeting scheduled for 25 November 2009 and scheduled a further meeting.

[9] The QNU and Mr Priest and Ms Lategan were to meet again on 30 November 2009, following the Board meeting.

[10] This meeting did not take place, though the QNU attended the site. The reason for this was that Mr Priest was diverted to attend an urgent workplace health and safety issue and could not be present at the meeting. Though Mr Priest had left a message to this end earlier in the morning, the message was not communicated to the QNU official before the official left Brisbane for Toowoomba. This was Mr Priest’s evidence taken under oath, and it was not challenged.

[11] Upon arriving at the Employer’s site, the QNU official was informed that Mr Priest was unavailable and that Ms Lategan was not able to conduct any meeting without him or answer questions on enterprise bargaining or the Board’s deliberations.

[12] In correspondence dated 30 November 2009 the QNU conveyed its view to the Employer that it (the Employer) was evading its obligation to bargain in good faith under the terms of s.228 of the FW Act. Despite this, the QNU sought to meet with the Employer’s representatives again, and without delay.

[13] In the QNU’s view, this correspondence satisfied the requirements of s.228(4) of the FW Act, which states as follows:

“(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.” (My emphasis)

[14] That same day (30 November 2009), Mr Priest replied to the QNU’s correspondence and stated that the Board had taken the view that it should ascertain the views of its nursing staff as to whether they supported the negotiation of an agreement. It wished to do so because “it would be irresponsible to invest precious resources into this project without first establishing the need”. 1

[15] Mr Priest stated that:

“This process will allow us to ensure we [are] responding appropriately to a majority request from our nursing staff.” 2

[16] The Employer intended to take such action by asking staff to fill in a preference on a voting slip.

[17] The Employer’s correspondence of 30 November 2009 also proposed that the parties meet again at 1.00pm on 11 December 2009. The staff vote, it appears from the evidence, was to have been completed prior to that meeting.

[18] Upon receipt of this correspondence, the QNU came to the belief that the Employer was “attempting to avoid bargaining”, and that its decision to seek the views of its employees was not reasonable and an unnecessary over-lay on a “straight forward process”.

[19] The QNU, therefore, sought orders in the following terms:

• “That the request by the Employer for employees to vote on whether bargaining should occur is withdrawn.



• That the Employer provides to the QNU a list of dates for meetings for December 2009, and fortnightly thereafter for January and February 2010.



• That the Employer attends all scheduled meetings and that the Employer’s representatives at those meetings are properly authorised bargaining representatives for the Employer.



• That the Employer make available to QNU all relevant financial accounts in relation to its aged care operations in Toowoomba.”

Employer’s Evidence

[20] The only witness evidence taken under oath in these proceedings was that of Mr Priest and Ms Lategan.

[21] Mr Priest’s evidence can be summarised as follows:

• He is not an employee of the Employer or the Archdiocese, but is an employee of a contractor (Caritas Care Support Services) which provides management services to the Employer (a fact about which the QNU appears to have been apprised of some time on or before 30 November 2009) 3;



• He has not received any direction from the Board that it or the Employer intended to negotiate an agreement and was only aware that it did not want to make any agreement. The reason for this was that the Board had budgeted for and provided a 4.0% wage increase in October 2009 and was now paying 6.0% the Award\NAPSA wage rates. The Employer has customarily relied upon the NAPSA for its wider conditions;



• He had not been appointed a bargaining representative (let alone in writing) by the Employer (under s.176 of the FW Act);



• He did not respond to the QNU’s correspondence dated 16 September 2009 on 21 October 2009 with the purpose of commencing negotiations in relation to the QNU’s claims, but only for the purpose of meeting with the QNU to discuss their correspondence and its objective;



• He was the principal participant in the meeting of 9 November 2009 (and had authored the correspondence of 21 October 2009 and 30 November 2009);



• At the meeting of 9 November 2009 he had discussed: whether bargaining could be entered into; the fact that the Board had approved a pay rise in the previous month (which had been budgeted for at a much earlier time); and even if the Board approved bargaining for an agreement it would need to be cost neutral in its impact;



• At the same meeting he indicated that the Board’s direction would need to be obtained; and



• That this was the context in which it was agreed that the QNU would develop an agreement prior to the Board meeting scheduled for 25 November 2009.

[22] Mr Priest also gave evidence that:

• He discussed the QNU’s proposal with the Board on 25 November 2009, with the Board indicating that given its assumption that there was no agitation for an agreement, it would be guided by the wishes of its nursing staff as ascertained by a ballot;



• The views of the nursing staff would be obtained before the next scheduled meeting with the QNU on 11 December 2009; and



• The QNU did not respond to the Employer’s offer to meet on 11 December 2009.

[23] Ms Lategan also gave evidence under oath in these proceedings. Her evidence, in summary, is as follows:

• She did not receive any authorisation by the Board to enter into negotiations for a proposed agreement with the QNU, and could not so act until such an authorisation was provided;



• Whilst she might be a participant in any prospective negotiations, she would not be a lead negotiator;



• The Board had made no decision to commence negotiations for an enterprise agreement, particularly for reason the budgeted 4.0% pay rise had taken effect in the prior month;



• The Board intended to go along with the majority opinion of its nursing staff as to whether it would commence bargaining for an agreement; and



• The ballot of nursing staff appears not to have been conducted for reason the application now before me was made, and the Employer believed it prudent to desist in that in regard.

STATUTORY CONTEXT

[24] Section 228 of the FW Act reads as follows:

“(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.”

[25] Fair Work Australia may only make a bargaining order in the circumstances set out in s.230 of the FW Act, which reads as follows:

“230 When FWA may make a bargaining order

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.”

[26] Subdivision A of Division 8 of Part 2-4 of the FW Act concerns the regulation of relationships between “bargaining representatives” who are bargaining for the agreement.

[27] Section 230(2) of the FW Act serves, in effect, to ensure that an employer is not subject to the regulation of Subdivision A until such time as it is identifiable as a “bargaining representative” for the relevant purpose.

[28] Until such time as an employer either agrees to bargain or itself initiates bargaining for the proposed agreement, the employer is not identifiable as a bargaining representative for the FW Act’s purposes.

[29] The only other circumstances in which an employer becomes identifiable as a bargaining representative for the purposes of Subdivision A of Division 8 is when the statute intervenes to impose that identity upon the employer when one of the following is in operation:

• a majority support determination under s.236 of the FW Act;



• a scope order under s.238 of the FW Act; or



• a low paid authorisation under Division 9 of Part 2-4 of the FW Act.

[30] When any of the above events occur (by self-initiation or statutory imposition), the employer becomes an identified bargaining representative whose conduct thereafter is regulated by the Subdivision (and the requirements of s.228 of the FW Act).

[31] Equally however, an employer who is not so identified (as a bargaining representative in relation to the proposed agreement) is not capable of regulation under the Subdivision, and bargaining orders cannot be made against that employer as a consequence.

Is the Employer in the matter now before me a “bargaining representative”?

[32] Section 230 of the FW Act mandates that FWA may not make a bargaining order unless it is satisfied that any one or a combination of the preconditions set out at s.230(2) of the FW Act are in existence at the time of the application is heard.

[33] In respect of this application, none of the factual preconditions at s.230(2)(b) of the FW Act (concerning a majority support determination), s.230(2)(c) of the FW Act (concerning a scope order) and s.230(2)(d) of the FW Act (concerning a low paid authorisation) are claimed to be in existence.

[34] The QNU’s application is predicated on the precondition at s.230 (2)(a) of the FW Act being satisfied: that is, that “the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement”.

[35] In my view, the evidence before me does not establish that the employer has agreed to bargain (or has initiated bargaining).

[36] The evidence of Mr Priest and Ms Lategan (which is the only direct evidence before me) was that the correspondence of 21 October 2009 did not signal an intention of an agreement to bargain at a subsequent meeting. The correspondence was only for the purposes of meeting with the QNU to discuss its request to bargain. The terms of its correspondence in reply (as set out above) only addressed the subject matter of the QNU’s originating correspondence.

[37] In my view, there is nothing in the plain words of the correspondence of 21 October 2009 that suggest that the Employer had agreed to bargain with the QNU.

[38] Mr Priest, who was the author of that correspondence and who was the principal participant in the meeting of 9 November 2009 was not an employee of the Employer nor was he a bargaining representative so appointed in writing under the terms set out at s.176(1)(d) of the FW Act.

[39] Nor does the meeting of 9 November 2009 give me cause to be satisfied that the Employer had agreed to bargain. That meeting, according to the evidence of both Mr Priest and Ms Lategan, was predicated upon the approval of the Board being given before any bargaining could commence. That is, the Employer, through its Board, had not agreed to bargain, and neither the conduct of Mr Priest (who is any event could not have bargained on behalf of the Employer) or Ms Lategan ought to have been construed as facilitating the bargaining being process.

[40] There are likely to have been discussions between the parties about past pay rises and the assumption of cost neutrality being a likely prerequisite to any prospective agreement, but that is not inconsistent with the principal position put by Mr Priest and Ms Lategan: that the Board had not authorised the commencement of bargaining and that they were not in a bargaining mode during their discussions with the QNU.

[41] The evidence of both Mr Priest and Ms Lategan was that the Board had never authorised the commencement of bargaining or otherwise agreed to bargain, and the Board approval process was made clear at the meeting of 9 November 2009.

[42] Some wider circumstances support this direct evidence:

• The Employer had not issued a Notice of Employer Representational Rights under s.173 of the FW Act (which whilst not being determinative of bargaining for a proposed agreement having been agreed to or having been initiated, is ordinarily an indicator thereof) 4;



• The Board’s position (that it did not want to or was not inclined to make an agreement) is explicable given the nursing staff were granted a 4.0% pay rise in October 2009 and were being paid 6.0% above the NAPSA rates; and



• Ιt would be inconsistent for the Board to have agreed to authorise bargaining for an agreement only then to instigate a procedural measure to determine whether nursing staff sought such an agreement.

[43] Because of these circumstances, in my view the application that is before me for bargaining orders must fail. FWA cannot make such orders where the preconditions for such orders being made (at s.230(2) of the FW Act in this instance) are not made out.

[44] In this instance, the precondition under s.230(2)(a) of the FW Act was not made out because there is no evidence that the Employer had agreed to or had initiated bargaining.

[45] It appears from the submissions given by the parties in closing that perhaps because of this application or some such wider consideration, that the Board has now determined that it will commence to bargain with the QNU. It further appears, at least from the discussion from the Bar Table, that this decision was conveyed to the QNU (at least) immediately before such time as this application was heard.

[46] To that end, it appears further that the Employer has proposed dates through December 2009 and the New Year at such time at which it will bargain with the QNU for a proposed agreement.

[47] Given this, it now seems that the employer has agreed to bargain for the proposed agreement, and as such it is now identifiable (in light of the above discussion) as a “bargaining representative”.

Can this apparent decision by the Board now meet the precondition under s.230(2)(a) of the FW Act for the bargaining orders sought in this application?

[48] The answer to that question must be in the negative.

[49] The Employer has agreed to bargain for a proposed agreement only from on or about the time of the hearing. There can be no suggestion that any contravention of the grounds under s.228 of the FW Act could be made out when the commitment to bargaining has only been enunciated contemporaneously with the application now before me; clearly there have been no opportunities for bargaining to take place (by meetings or otherwise).

[50] More importantly, moreover, there is no conduct by the Employer that could be regulated by s.229 (of Subdivision A) for reason that the past conduct by the Employer (with which this application was concerned) was not in its identity as a bargaining representative.

[51] I am also informed, again from the Bar Table but without demur from the QNU, that whilst the Board has agreed to bargain with the QNU for the proposed agreement, the QNU has refused the proposal to commence bargaining by accepting an offer by the Employer (made to obviate any requirement for this hearing) to attend the first meeting on 11 December 2009 (and on scheduled dates thereafter). The QNU instead pressed this application.

[52] In such circumstances, it may be the QNU that may be exposed prospectively to an application under s.228 of the FW Act, subject to other matters being satisfied.

[53] I make one final observation in closing.

[54] A concern of the QNU in this matter appeared to focus on an initiative by the Board to seek directly the views of its employees (by way of a ballot) as to whether or not they wished to make an agreement (given the recent wage rise and the that they were being remunerated at 6.0% above the NAPSA rates).

[55] Because of this concern, the QNU sought orders from FWA including:

“That the request by the Employer for employees to vote on whether bargaining should occur is withdrawn”.

[56] It appears to me that it is important to encourage communication between employers and employees both directly as well as through their representative organisations. 5

[57] I can identify no inconsistency between the requirements of Subdivision A and the ordinary expectation that an employer may directly communicate (and\or bargain) with its employees throughout the bargaining process, so long as the employer continues to conduct itself in conformity with the requirements of s.228 of the FW Act in relation to any identifiable bargaining representatives.

[58] Of course, there may be circumstances in the bargaining process in which an employer may utilise direct communication with employees to bargain for an agreement to the complete exclusion of a bargaining representative. This was the situation in Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Education Commission 6, and orders under s.229 of the FW Act regulating the bargaining relationship between the bargaining representatives were made by Fair Work Australia.

[59] That said, the intended communications initiative of the Employer in this matter, in which the Employer sought to be guided by its employees’ views concerning whether to bargaining for the agreement, should not without sound reason be subject to regulation under Subdivision A. This is particularly the case when such an initiative is broadly analogous to an application by an employee’s bargaining representative under s.236 of the FW Act (for a majority support determination).

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D Elder of the Queensland Nurses’ Union of Employees

Mr G Muir of Employer Services for The Corporation of the Roman Catholic Diocese of Toowoomba T/A Lourdes Home for the Aged, Lourdes Home Hostel

Hearing details:

2009.

Brisbane:

December 4.

 1  Letter from Mr Priest of Caritas Care Support Services to Mr Elder of the QNU dated 30 November 2009 (Attachment C to the QNU submissions)

 2   Letter from Mr Priest of Caritas Care Support Services to Mr Elder of the QNU dated 30 November 2009 (Attachment C to the QNU submissions)

 3   Letter from Ms Hawksworth of the QNU to Mr Lategan Care Centre Manager of Lourdes Nursing Home dated 30 November 2009 (Attachment A to the QNU submissions) in which the QNU notes that Mr Priest is not an employee of the Employer

 4   See s.173(2) of the FW Act as to the definition of the notification time for the purpose of the Notice of Employer Representational Rights which replicates the criteria set out at s.230(2) of the FW Act

 5  Liquor, Hospitality and Miscellaneous Union v Mingara Recreation Club Ltd[2009] FWA 1442 at PN 18

 6  [2009] FWA 53. See PN9

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