Reeves v MaxiTRANS Australia Pty Ltd - [2009] FCA 970

FEDERAL COURT OF AUSTRALIA
Reeves v MaxiTRANS Australia Pty Ltd [2009] FCA 970
INDUSTRIAL LAW – collective agreement – interpretation – requirement for consultation with employee’s chosen representative – extent to which provision merely hortatory or aspirational – whether enforceable obligation imposed
Workplace Relations Act 1996 (Cth) ss 340(2), 719 and 824
Kucks v CSR Ltd (1996) 66 IR 182
Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470
National Tertiary Education Industry Union v University of Wollongong [2002] FCA 31
Ambulance Service Victoria (South Western Region) v Australian Liquor, Hospitality and Miscellaneous Workers Union (1998) 80 IR 275
Soliman v University of Technology, Sydney (2008) 176 IR 183
Ventana Pty Ltd v Federal Airports Corp and Fairways Group Pty Ltd and Fairways Leisure Market Pty Ltd [1997] FCA 538
Van Efferen v CMA Corporation Limited [2009] FCA 597
Bell v Minister for Health [2006] FCA 134
Termination Change and Redundancy Case (1984) 8 IR 34
United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Qantas Airways Limited (2001) 106 IR 307
HELEN REEVES and CRAIG CAMBLIN v MAXITRANS AUSTRALIA PTY LTD
VID 701 of 2008
RYAN J
28 AUGUST 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION
VID 701 of 2008

BETWEEN:
HELEN REEVES
First Applicant

CRAIG CAMBLIN
Second Applicant

AND:
MAXITRANS AUSTRALIA PTY LTD
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

28 AUGUST 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION
VID 701 of 2008

BETWEEN:
HELEN REEVES
First Applicant

CRAIG CAMBLIN
Second Applicant

AND:
MAXITRANS AUSTRALIA PTY LTD
Respondent

JUDGE:

RYAN J

DATE:

28 AUGUST 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Before the Court is an application which turns largely on its own facts. In September 2008, the Respondent’s employees, upon it being put to them for a second time, voted for the MaxiTRANS Australia Collective Agreement 2008 (“the 2008 Agreement”), which replaced the MaxiTRANS Australia Pty Ltd Collective Agreement 2006 (“the 2006 Agreement”).
The question raised by the amended statement of claim is whether consultation with the union representatives of two of the respondent’s employees, the applicants in this case, complied with the requirements of the 2006 Agreement with respect to consultation. Contingently on a negative answer to that question, the applicants seek the imposition of a penalty pursuant to s 719 of the Workplace Relations Act 1996 (Cth) (“the WR Act”).
Background
The respondent, MaxiTRANS Australia Pty Ltd (“MaxiTRANS”) is a manufacturer of truck trailers. Its primary factory site is at Ballarat in Victoria. Each of the applicants was, at all relevant times, an employee of MaxiTRANS.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 970
Decision Date: 28 August 2009

CaseChat Overview and Summary

In the case of Reeves v MaxiTRANS Australia Pty Ltd, the applicants, who were employees of MaxiTRANS Australia Pty Ltd and members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, sought to have a penalty imposed on MaxiTRANS for failing to consult with union representatives during negotiations of a collective agreement. The applicants argued that the 2006 Agreement required MaxiTRANS to consult with union representatives and that failure to do so warranted a penalty under the Workplace Relations Act 1996. The court was tasked with determining whether the interpretation of the 2006 Agreement advanced by the applicants was preferable to that of MaxiTRANS, and if the applicants had established that MaxiTRANS breached the agreement.

The court found that the applicants had not demonstrated that their interpretation of the 2006 Agreement was the preferable one. Clause 12 of the 2006 Agreement required MaxiTRANS to consult with representatives chosen by employees, but the court found that this did not necessitate equal treatment of all representatives. Instead, the weight given to submissions by chosen representatives could vary based on several factors. The court concluded that while there was no consultation with the AMWU representatives before the first vote on a collective agreement, the negative vote rendered the agreement moot. Consequently, imposing a penalty for the lack of consultation before the vote was deemed inappropriate.

The court dismissed the application for penalty imposition, finding that the applicants had not met the burden of establishing a breach of the certified agreement. The court's reasoning focused on the interpretation of the 2006 Agreement, emphasizing that while MaxiTRANS was required to entertain representations from chosen representatives, it was not obligated to accord equal weight to their submissions. The court also noted that the absence of consultation before the first vote made it inappropriate to impose a penalty. The final order was that the application be dismissed with no order as to costs.

Orders

Orders of the court

1. The application be dismissed.

Note:

Background

Background to the litigation

The question raised by the amended statement of claim is whether consultation with the union representatives of two of the respondent’s employees, the applicants in this case, complied with the requirements of the 2006 Agreement with respect to consultation. Contingently on a negative answer to that question, the applicants seek the imposition of a penalty pursuant to s 719 of the Workplace Relations Act 1996 (Cth) (“the WR Act”). Background The respondent, MaxiTRANS Australia Pty Ltd (“MaxiTRANS”) is a manufacturer of truck trailers. Its primary factory site is at Ballarat in Victoria. Each of the applicants was, at all relevant times, an employee of MaxiTRANS. Each was also a member of the Automotive, Food, Metals Engineering, Printing and Kindred Industries Union (“the AMWU”), and had indicated a desire to be represented by the AMWU in negotiations in relation to collective agreements. When the dispute now before the Court first arose, the 2006 Agreement was in force. It provided, by cl 12; 12. EMPLOYEE REPRESENTATIONMaxiTRANS Australia has an open door policy for employees to express any issue relating to their employment. Employees elect their own Employee Committee representative to consult with management on issues and are encouraged to use this system of representation. The company also recognizes “freedom of association”. Therefore regardless of who an employee chooses as a representative they will be treated equally and without prejudice. See Appendix 1 for Consultative Committee ConstitutionAppendix 1 contained various provisions directed to the role, composition and operation of the Consultative Committee (“the Committee”). It provided, in relevant part; PreambleThe employees and management of the company are committed to workplace improvement and effectiveness through a focus on communication and consultation through the committee…Scope of the CommitteeThe Committee has scope to address all matters relating to the employee/ management relationship, provided such matters raised have been dealt with through proper channels, where they exist. The Committee will have the central role in (but not be limited to) the development, implementation and monitoring of: Enterprise Agreements and productivity measures; work arrangements and working conditions; and communication…StructureThe Consultative Committee will comprise of – nine employee representatives elected by the employees;one team leader representative elected by Team Leaders and;three management appointed representatives. … The factual controversy between the parties revolves around the extent to which the applicants’ AMWU representatives have been given access to representatives of MaxiTRANS management and an opportunity to make submissions about the content of the 2008 Agreement while it was being negotiated. The evidence of an officer of the AMWU, Mr Nunns, was that, during a notified bargaining period, he sought meetings between May and August 2008 with the MaxiTRANS Human Resources manager, Mr Archon, and he sought to have incorporated in the proposed 2008 Agreement certain provisions, including, specifically, one ordaining a particular dispute resolution procedure. Those approaches, he said in evidence, were rebuffed. In his evidence, Mr Archon did not dispute that he had been unreceptive to the AMWU’s approaches. He regarded it, he said, as unnecessary to respond at the time because MaxiTRANS was negotiating directly with its employees through the Committee.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

RYAN J

In proceedings before this Court the moving party bears the onus of establishing a breach of a certified agreement. In the present case that required the applicants to persuade the Court that the interpretation of the 2006 Agreement for which they contended was preferable to that advanced by MaxiTRANS; see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Qantas Airways Limited (2001) 106 IR 307, per North J at 326. There, the applicants did not establish that their interpretation was correct, so the application for imposition of a penalty was dismissed. Subject to the qualification noted below, the present applicants have similarly failed to demonstrate that the construction for which they have contended is the preferable one. Conclusion In the result, cl 12 of the 2006 Agreement can be construed as imposing an obligation on MaxiTRANS enforceable by the imposition of a penalty under s 719 of the WR Act only to the extent of requiring some consultation with each chose representative of the relevant employees. I am not persuaded that the consultation with AMWU representatives which clearly did occur before the second vote by employees on a collective agreement was insufficient to satisfy the requirements of cl 12. There was, on the evidence, no consultation at all with AMWU representatives before the first version of the collective agreement was put to a vote on 18 August 2008. That may have been because MaxiTRANS management had not been notified until 29 August 2008 that some employees had “chosen” Mr Nunns or any other officer of the AMWU as a representative for the purpose of negotiations or consultations about a proposed 2008 collective agreement. In any event, the negative vote on 18 August 2008 on a 2008 collective agreement meant that the agreement then put to the vote was effectively nugatory. For that reason, I would regard it as an inappropriate exercise of the discretion conferred by s 719 of the WR Act to impose a penalty for any failure by MaxiTRANS, before 18 August 2008, to consult with an AMWU representative. For all of the reasons outlined above, the application must be dismissed. In accordance with s 824 of the WR Act there will be no order as to costs.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

Counsel for MaxiTRANS submitted that the applicant’s construction, outlined at [14] above, “does not accord with the natural and ordinary meaning of the words in clause 12 and, in the context of ongoing enterprise bargaining negotiations, could readily give rise to absurd, exploratory, capricious and irrational outcomes”. That submission was premised on the contention that it would be unworkable to allow each and every employee to choose his or her own representative, and then for each such representative to be treated with complete equality in the process of negotiating an enterprise agreement.Consideration It will readily be perceived that the three limbs of the applicants’ argument as distilled at [14] above do not purport to constitute a logical syllogism. I accept that the use of the word “encouraged” in cl 12 of the 2006 Agreement was an acknowledgement that employees might have represented their views or interests to management otherwise than through “their own Employee Committee representative” or the Committee as a whole. The clause, I consider, did not preclude employees, either individually or as a group, from approaching management directly or through a representative, including a union organiser or delegate, who was not an Employee Committee representative or other member of the Committee. The weight to be accorded to such alternative forms of representation would, however, have been a matter for MaxiTRANS management and may well have varied according to the circumstances and the nature of the matter in issue. The effect which, in my view, should be given to the word “encouraged” in cl 12 does not entail that precisely the same treatment is to be accorded to each representative of an employee who has been chosen to represent that employee in relation to a particular issue. The phrase “equally and without prejudice” in cl 12 is a compound one and gains colour from its proximity to the recognition in the same clause of “freedom of association.” Understood in this way the phrase does not qualify an Employee Committee representative “elected” by employees to the Consultative Committee as contemplated by the first part of the cl 12. Rather, it refers to the representative “chosen” by one or more employees to represent him, her or them in respect of a particular issue. As suggested at [16] above, MaxiTRANS was obliged to entertain representations from such a representative without adverse discrimination or “prejudice” referable to, for example, the union affiliation, or lack of it, of the chosen representative or the fact that he or she had been chosen in preference to the Employee Committee representative on the Consultative Committee. However, that obligation was, I consider, not so extensive as to require MaxiTRANS to accord equal, or any particular, weight to the submissions on a specific issue of such a chosen representative. As already indicated, that weight might reasonably depend on a multitude of factors, including the inherent cogency of the submission, the number of employees represented and the nature of the issue to which the submission was directed.

BETWEEN:	HELEN REEVES First Applicant CRAIG CAMBLIN Second Applicant
AND:	MAXITRANS AUSTRALIA PTY LTD Respondent
JUDGE:	RYAN J
DATE OF ORDER:	28 AUGUST 2009
WHERE MADE:	MELBOURNE

JUDGE:	RYAN J
DATE:	28 AUGUST 2009
PLACE:	MELBOURNE