Retail and Fast Food Workers Union Incorporated
[2018] FWC 145
•11 JANUARY 2018
| [2018] FWC 145 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.229—Bargaining order
Retail and Fast Food Workers Union Incorporated
(B2018/3)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 11 JANUARY 2018 |
Application for a bargaining order in relation to Domino’s Pizza Enterprises Limited – application granted – ballot of employees to make an enterprise agreement delayed.
[1] On 8 January 2018, following a short hearing, I issued a bargaining order 1 in the following terms:
‘The Fair Work Commission orders that:
A. The ballot of employees to be covered by the proposed Domino’s Pizza Enterprises Limited (Domino’s) enterprise agreement (the proposed enterprise agreement) that was to be held on Tuesday 9 January 2018 is not to be conducted until at least Tuesday 16 January 2018.
B. Meeting are to occur between Domino’s, the Retail and Fast Food Workers Union Incorporated (RAFFWU) and the Shop, Distributive and Allied Employees Association (if it wishes to participate) to discuss any outstanding concerns about the proposed agreement during the week commencing 8 January 2018.
C. Domino’s is to give genuine consideration to any proposals put forward by RAFFWU and to provide reasons for its response to those proposals.’
[2] I indicated to the parties that I would provide written reasons for my decision to issue the bargaining order.
Background
[3] Negotiations for a new enterprise agreement to cover all delivery and in-store employees employed by Domino’s and its franchisees have been taking place between Domino’s and the Shop, Distributive and Allied Employees Association (SDA) since 2016.
[4] In September 2017, RAFFWU indicated to Domino’s that it had been appointed as a bargaining representative by an employee that would be covered by the proposed enterprise agreement. Domino’s acknowledged that RAFFWU was a bargaining representative for the purposes of the proposed enterprise agreement.
[5] Domino’s and the RAFFWU held a telephone meeting on 23 October 2017 to discuss the proposed enterprise agreement and RAFFWU’s claims in relation to that agreement.
[6] On 31 October 2017, Domino’s provided a draft enterprise agreement to RAFFWU. It told RAFFWU that it had carefully considered all of the claims which it had made, and had incorporated into the draft agreement all those which it considered it was able to accommodate. It indicated that it would be happy to address each of the individual claims in a further meeting.
[7] On 2 November 2017, RAFFWU wrote to Domino’s that it wished to further discuss its claims and the agreement. It indicated that it was collating the feedback of members so that those discussions would be properly informed.
[8] On 13 November 2017, RAFFWU again wrote to Domino’s seeking times to hold further discussions. It expressed concern about a number of provisions in the draft enterprise agreement, including those relating to uniforms, choice of industry superannuation funds, delivery allowances, wages and part-time work.
[9] On 17 November 2017, RAFFWU wrote to Domino’s again indicating that it had not received replies to its correspondence of 2 and 13 November 2017 and seeking available times to discuss the proposed enterprise agreement.
[10] On 21 November 2017, RAFFWU wrote to Domino’s again indicating that it had yet to receive a reply to its previous correspondence and expressing a concern that a vote on the proposed agreement was imminent. It said that it was deeply concerned that Domino’s was failing to meet the good faith bargaining requirements.
[11] Later that day, Domino’s wrote back to RAFFWU apologising for the delay in replying and indicating that no progress had been made on the agreement since 31 October 2017. It proposed a meeting on 29 November 2017 to discuss RAFFWU’s claims. This meeting subsequently occurred.
[12] On 28 December 2017, Domino’s sent RAFFWU a revised version of the proposed enterprise agreement. This incorporated a number of changes including in some of the areas RAFFWU had previously flagged as being of concern. It also included other changes, including to wage rates. Domino’s indicated that it considered this to be the final version of the agreement, which it would put to a vote in the New Year.
[13] On 29 December 2017, RAFFWU wrote back to Domino’s. Its email included the following:
‘We note that less than 2 hours after you wrote to RAFFWU, Domino’s Pizza Enterprises Ltd released the agreement as a final agreement to staff, and notified staff of an access period commencing Tuesday 2 January and a ballot commencing on Tuesday 9 January.
In that context, your offer to discuss the proposed agreement is disingenuous. We do wish to discuss the draft agreement and negotiate an agreement satisfactory to members. In light of the correspondence to staff of last night, it is clear Domino’s Pizza Enterprises Ltd has no intention of such action.
We wrote to you on 21 November 2017 raising a number of serious concerns that Domino’s Pizza Enterprises Ltd and its franchisees were failing to meet the good faith bargaining requirements.
The conduct of Domino’s Pizza Enterprises Limited yesterday exemplifies those concerns.
We are deeply concerned that Domino’s Pizza Enterprises Limited is not meeting the following good faith bargaining requirements specified at s.228 of the Fair Work Act.
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.
Clearly Domino’s Pizza Enterprises Ltd has announced it will put the agreement for a vote without giving RAFFWU the opportunity to consider the draft, discuss the draft with members, discuss the draft with Domino’s Pizza Enterprises Ltd and put alternative proposals.
We put you on notice on 21 November of our concern that Domino’s Pizza Enterprise Limited and its franchisees are not meeting the good faith bargaining requirements by their conduct including, but not limited to, their failure to:
• Discuss the proposed draft agreement with RAFFWU, including its substantive changes since earlier drafts, prior to putting the proposed agreement to vote;
• Disclosing to RAFFWU the guidance of the FWC at the time it was received or at all;
• Attend and participate in meetings to discuss the draft of 28 December 2017;
• Give reasons for the failure to include some of the claims of the Retail and fast Food Workers Union in its draft of 28 December 2017; and
• Bargaining with the Retail and Fast Food Workers Union, a bargaining representative for the agreement.
We are further concerned that Domino’s Pizza Enterprises Limited is negotiating with other bargaining representatives, whether under the auspices of the Fair Work Commission or not, without including the Retail and Fast Food Workers Union.
We are further concerned that putting an agreement to vote at this time is capricious and unfair conduct that undermines freedom of association and collective bargaining.
We require a response to our concerns by no later than 4pm, 3 January 2018. If we do not receive a satisfactory response by that time we intend to seek appropriate intervention to ensure Domino’s Pizza Enterprises Ltd negotiates in accordance with the good faith bargaining requirements of the Act.’
[14] Domino’s responded to RAFFWU on 3 January 2018. The reply stated that Domino’s had responded in full to RAFFWU’s log of claims, queries and concerns, and clarified proposed clauses at the meeting on 29 November 2017. As far as Domino’s was concerned, the only outstanding feedback or responses relating to the proposed agreement were to be provided by RAFFWU. Domino’s had delayed proceeding for over four weeks in anticipation of a response from RAFFWU, which had failed to arrive. The final draft of the agreement was based on comments by all representative parties to the agreement and guidance from the Commission. In the absence of any further comments from RAFFWU, Domino’s proceeded with the final draft.
[15] RAFFWU filed its application for a bargaining order on 4 January 2018. The application included the following:
‘8. At or before 6:08PM AEDT 28 December 2017, the Respondent (i.e. Domino’s) sent some or all employees of Domino’s Pizza franchises a copy of its new proposed agreement and related documents. It simultaneously notified some or all employees of Domino’s Pizza franchises that a ballot would be conducted commencing on 9 January 2018 following an access period.
9. On review of the new proposed agreement, RAFFWU has identified further substantive changes which include substantial reductions (in their context) to the paid wages. In particular, the over Award allowance payable to most employees was reduced by 80% (or 400% if commencing from the final position.) This “over-award payment” was reduced from 10 cents per hour (0.498%), to 2 cents per hour (0.0996%). At other classifications the reduction is more significant.
10. This change was not identified in the email of 28 December 2017, nor was RAFFWU given the opportunity to discuss this issue at the bargaining table.
11. Further, the new draft proposes a new additional superannuation fund but remains unclear as to whether full superannuation choice is to be introduced.
12. RAFFWU has not been given an opportunity to discuss any of these new proposals.
13. Other extant issues include substantial proposals to casualise part-time employment and introduce voluntary overtime at ordinary rates.
14. Changes to wage rates were not put on the bargaining table prior to putting the agreement to ballot. We allege this is capricious or unfair conduct that undermines collective bargaining. It further and consequently offends obligations to attend and participate in meetings, disclose relevant information and bargain with RAFFWU.’
[16] The same day (Thursday, 4 January 2018), my chambers listed the application for a hearing to be conducted the following Monday, 8 January 2018. Following receipt of the application and the notice of listing, Tim Van Schyndel (National Manager, Employee Relations for Domino’s) wrote an email to my chambers (copied to the other interested parties). The email included the following:
‘Despite Domino’s believing it has bargained in good faith, and in light of Mr Cullinan’s (the Secretary of RAFFWU) s.229 application, it is obvious that Mr Cullinan believes that there are some unresolved items that he would like to discuss with respect to the proposed Domino’s SDA Agreement 2017. On that basis and to alleviate any doubt, Domino’s is happy to delay the ballot and meet with Mr Cullinan next week to negotiate any residual items Mr Cullinan would like to discuss and ensure that all bargaining representatives are satisfied.
If Mr Cullinan is satisfied with this proposed solution, if he could please propose dates and times for early next week.’
The hearing
[17] At the hearing on 8 January 2018, Mr Cullinan represented the RAFFWU, Mr Lepahe, solicitor, represented Domino’s and Mr Friend QC represented the SDA.
[18] At the commencement of the hearing, I asked what had happened in response to Mr Van Schyndel’s email of 4 January 2018, indicating that Domino’s was ‘happy to delay the ballot’ and meet RAFFWU in the week beginning 8 January 2018 to ‘negotiate any residual items’.
[19] Mr Cullinan said that he looked forward to having negotiations with Domino’s during the week, but said that he had not yet contacted Domino’s to fix a date and time for a meeting. Mr Lepahe said that Domino’s would now like the ballot scheduled for 9 January 2018 to proceed. Domino’s said it was willing to discuss any outstanding concerns on the day of the hearing but as far as Domino was concerned the agreement it was putting to its employees was one that was ‘settled in its own mind’ and that was settled in the mind of ‘the major bargaining agent’ on the other side (presumably meaning the SDA).
[20] Mr Lepahe said that Domino’s had hoped that the discussion with Mr Cullinan could have taken place prior to the date scheduled for the ballot. He expressed a concern that there was an element of ‘spoiling’ by a ‘minor’ bargaining agent that had come into the ‘tail end of a process’ that had been going on for 18 months and had involved 15 meetings. The only issue raised by RAFFWU that had not already been dealt with as part of the bargaining process was ‘a very narrow issue’ that could easily be dealt with during the course of the day.
[21] Mr Lepahe said that the applicant had had more than enough time and there was a large employee base that would like to vote on the agreement. There had been a long and exhaustive negotiation with a number of bargaining agents. Domino’s had made considerable efforts to ensure that the agreement was compliant with the better off overall test and met all other relevant tests, including by seeking the assistance of the Commission. It had done all that it could reasonably be expected to do.
[22] Mr Cullinan said that the draft agreement provided to RAFFWU on 28 December 2017 contained substantive changes that had not been previously notified. These included a significant cut to the wages payable to some employees. The draft agreement was given to RAFFWU an hour and a half before it was issued to employees to be voted on. It would be appropriate to order Domino’s to discuss those changes prior to the agreement being put to employees for a ballot.
The legislation
[23] Subdivision A of Division 8 of Part 3-4 of the Fair Work Act 2009 (Cth) (the FW Act) relevantly provides as follows:
‘228 Bargaining representatives must meet the good faith bargaining requirements
(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.
229 Applications for bargaining orders
Persons who may apply for a bargaining order
(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.
…
Timing of applications
(3) The application may only be made at whichever of the following times applies:
(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:
(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or
(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;
(b) otherwise—at any time.
…
Prerequisites for making an application
(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:
(a) has concerns that:
(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and
(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.
Non-compliance with notice requirements may be permitted
(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.
230 When the FWC may make a bargaining order
Bargaining orders
(1) The FWC 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) the FWC is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2) The FWC 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;
…
Good faith bargaining requirements not met
(3) The FWC must in all cases be satisfied:
(a) that:
(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).
231 What a bargaining order must specify
(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:
(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;
(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;
(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;
(d) such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement. …’
Consideration
[24] It is an essential element of the good faith bargaining requirements that bargaining representatives are able to put forward proposals and have them considered by other bargaining representatives, as well as to consider and comment on proposals put forward by other bargaining representatives. Such opportunities have to be genuine and not merely formal.
[25] In the circumstances of this case, I am satisfied that Domino’s made significant changes to the proposed enterprise agreement between the draft given to RAFFWU on 31 October 2017 and the draft it provided on 28 December 2017. RAFFWU considered that some of these changes were potentially adverse to the interests of the employees it represented. These changes had not been discussed with RAFFWU previously. As far as Domino’s was concerned, the version given to RAFFWU was a ‘final draft’ and was immediately distributed to employees for approval. This meant that RAFFWU was effectively denied a genuine opportunity to consider and comment on the terms of the proposed agreement, and have any such comments considered by Domino’s. The good faith bargaining requirements do not mean that Domino’s would be obliged to accept any of the comments provided by RAFFWU on the draft agreement, but it did have to give RAFFWU a genuine opportunity to provide those comments – and it had to consider them – prior to finalising the agreement and presenting it to employees for a vote. At the very least, I consider that the conduct of Domino’s was in breach of subsections (d), (e) and (f) of s.228 of the FW Act.
[26] I am satisfied that the relevant jurisdictional pre-requisites for a bargaining order have been met. In particular, before making its application to the Commission, RAFFWU notified Domino’s of its concerns regarding compliance with the good faith bargaining requirements in the manner specified in s.229(4) of the FW Act. The timing of the application was also consistent with the requirements of the FW Act.
Conclusion
[27] It is appropriate, in the circumstances to make the bargaining order in the terms outlined at the beginning of this decision. The order is designed to ensure that Domino’s complies with the good faith bargaining requirements.
SENIOR DEPUTY PRESIDENT
Appearances:
J Cullinan for Retail and Fast Food Workers Union Incorporated.
H Lepahe, solicitor, with T van Schyndel and D King for Domino’s Pizza Enterprises Limited.
W Friend QC with R Patena for the Shop, Distributive and Allied Employees Association.
Hearing details:
Sydney with video links to Melbourne and Brisbane.
2018.
January 8.
1 PR599347.
Printed by authority of the Commonwealth Government Printer
<PR599357>
0
0
0