Sergeant Richard Bowers v Victoria Police
[2011] FWA 2862
•13 MAY 2011
[2011] FWA 2862 |
|
DECISION |
Fair Work Act 2009
s.229—Application for a bargaining order
Sergeant Richard Bowers
v
Victoria Police
(B2011/51)
COMMISSIONER SMITH | MELBOURNE, 13 MAY 2011 |
Bargaining representative; paid leave.
INTRODUCTION
[1] This is an application by Sergeant R. Bowers pursuant to s.229 of the Fair Work Act 2009 (the Act). Sgt. Bowers is a member of the prosecutions division of Victorian Police (Vicpol) and has appointed himself as a bargaining representative. He has also been appointed as the bargaining representative for 132 other police officers working in the same area.
[2] Sgt. Bowers seeks and order requiring Vicpol to provide him with paid leave so that he may prepare for, and participate in, the current enterprise bargaining negotiations taking place between Vicpol and another bargaining representative of the sworn employees of Vicpol—The Police Federation of Australia (PFA). Sgt. Bowers submits that he has been refused paid leave to participate in the structured negotiations and that these take place at times when paid leave from his normal duties would be necessary.
[3] Vicpol submit that it is prepared to be flexible in rostering Sgt. Bowers so that he may participate in the bargaining, but that should he chose to attend, it should not be at a cost to Vicpol. It was submitted that arrangements would be made for Sgt. Bowers to take paid annual or other accrued leave so that he does not suffer financially by participating in the negotiations. It was submitted that the PFA did not have on their bargaining team any sworn officer that needed to be relieved from normal duty to participate in bargaining.
THE ACT
[4] The Act establishes a regime of bargaining which has as its focus collective bargaining between employers and employees underpinned by simple good faith bargaining obligations. Section 3(f) provides:
“(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.”
[5] When contemplating agreement making the employer is required to advise employees that they have the right to be represented. Section 174(2) of the Act provides:
“Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before FWA that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
[6] Section 176 of the Act sets out who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement. It provides:
“Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
[7] Importantly in this case, s.176(4) provides:
“Employee may appoint himself or herself
(4) To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.
Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).
[8] It can be seen that the scheme of the legislation is that employees are advised that they are free to choose their bargaining representative and may also nominate themselves. This is not surprising given that any resultant agreement is between the employer and the employees at the enterprise. An employee organisation that was a bargaining representative may subsequently apply to have itself covered by the agreement but it is not the party principle under the agreement. The focus remains on employers and employees.
[9] In the bargaining process, bargaining representatives must meet the good faith bargaining requirements. Section 228 provides:
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.
[10] Section 230 defines the circumstances as to when FWA may make a bargaining order:
“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.
Good faith bargaining requirements not met
(3) FWA 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).
[11] It is not necessary to outline the provisions of s.231 as that is a machinery matter which seeks to ensure that bargaining representatives are advised of their clear obligations and the duration of those obligations.
THE SUBMISSIONS
[12] Sgt. Bowers submits that as a prosecutor, he is fully engaged in his work from 8 a.m. until 5 p.m. on weekdays. He submits that the enterprise bargaining meetings have, so far, met on a Thursday and generally between 9 a.m. and 3 p.m. To date he has only been able to attend a small proportion of those meetings and submits that he has been unable to adjust his working hours in order to accommodate those bargaining meetings.
[13] Vicpol acknowledges that Sgt. Bowers is the bargaining representative for 132 other prosecutors. In response to Sgt. Bowers view that he should be given paid leave, Vicpol submitted that it advised him that employees acting as bargaining representative were not acting in the course of their employment, but were representing themselves and other employees in the bargaining process. Vicpol submitted that it had adopted a common approach to bargaining, namely that any employee would have to be off duty if she/he was to participate in bargaining. Vicpol submitted that it advised Sgt. Bowers that it would provide him with plenty of notice as to when bargaining meetings were to be held and that a member of the VicPol negotiating team would meet separately with him within five days of the scheduled meeting if that was required by him. In addition, Vicpol submitted that he would be entitled to use office space, telephones and computers as required during those negotiations. Vicpol tendered an exhibit which documented the material it had sent to Sgt. Bowers and the contact made with him directly.
[14] It was submitted that Vicpol did not believe that attendance at bargaining meetings, which were undertaken in the employees own time, would impact upon continuity of service for the purpose of sick leave, annual leave etc. In short, except for the non-payment of wages the bargaining representative would be treated as if they were at work. However, some checks would have to be made with the payroll system. Another important qualification was whether or not Sgt. Bowers would be covered by workers compensation during the period he was bargaining on behalf of those who have nominated him.
[15] In opposing the application, Vicpol argued that the Act did not impose a requirement that:
- An employee bargaining representative be paid to attend bargaining,
- The employer schedule bargaining meetings when all bargaining representatives can be present,
- All bargaining representatives should be equally resourced in their ability to bargain.
[16] It was also submitted that Vicpol had not engaged in capricious or unfair conduct in its dealings with Sgt. Bowers as a bargaining representative.
[17] In addition, Vicpol submitted that if the Tribunal was to determine that if someone who appointed themselves as a bargaining representative was then entitled to have paid time off work to attend bargaining meetings, it may be that such a decision would encourage persons to appoint themselves and thereby create a logistical nightmare for bargaining. It submitted that the flow-on effects of such a decision would be significant and beyond Vicpol.
[18] Finally, Vicpol submitted that an employee who appoints themselves as a bargaining representative (and including if others appoint that person) is not acting in the course of their employment they are simply representing their own (and perhaps others) interests.
[19] In response to a question, Vicpol advised that no other person who is employed on full-time duties with Vicpol has been given paid time off except for those persons in management whose role includes negotiating on behalf of the employer. In other words, the PFA does not have, in its bargaining team, full-time sworn officers who are on active duty.
[20] Vicpol summarised its position as follows:
“We're saying that the Fair Work Act does not require an employer to pay a bargaining representative. We are saying the Act simply requires the employer to notify the employee that they may be represented by a bargaining representative, to recognise and bargain with the bargaining representatives nominated by an employee, to disclose relevant information in a timely manner, to respond to proposals by a bargaining representative in a timely manner, to give genuine consideration to proposals of other bargaining representatives and to refrain from capricious or unfair conduct.
We say we have met and complied with each and every one of the above requirements and in circumstances in which legislation does not oblige an employer to pay a bargaining representative a decision to not pay a bargaining representative cannot without more amount to unfair or capricious conduct, nor can it amount to a calculated undermining of collective bargaining or freedom of association particularly in circumstances in which Victoria Police has taken many steps to make Sergeant Bowers and Superintend Patterson's involvement in the bargaining process easier and arguably has gone beyond the requirements set out in the Fair Work Act.” 1
[21] In his final response Sgt. Bowers submitted that it was not financially possible for him to attend the bargaining meetings and not be paid. Given the way in which the bargaining meetings had been progressing, Sgt. Bowers submitted that this would represent in excess of a one fifth cut in pay during the period of negotiation. It was submitted that, at present, he was fully occupied in his normal duties and that reconfiguring his existing working hours so that he could take time off would simply not be practical. There was no scope to maintain his income by seeking to make up the hours that he would lose. The configuration of his working patterns would not make that a realistic option.
CONCLUSION
[22] To begin, it is appropriate to record that no person has raised any concerns about the jurisdictional basis upon which this application is made. 2 Given the history of this matter and the correspondence which has flowed between the parties, I am satisfied that the jurisdictional prerequisites have been met. I also note that there is no scope order in operation.
[23] Section 3(f) of the Act sets the scene where it seeks to engage employers and employees at the enterprise so that certain objectives can be met. The Act encourages collective bargaining but also accommodates those who seek to bargain on their own behalf. To this end, employees are advised that they are free to appoint bargaining representatives and those representatives have certain rights and responsibilities. This includes, by way of example, the ability to apply for a protected action ballot [s.437] so that protected industrial action may take place against the employer in the event that the bargaining representative wishes to progress bargaining by using economic power against the employer. Sgt. Bowers is a bargaining representative and seeks to bargain at the same time as the employer is bargaining with the other bargaining representative—the PFA. By agreement between PFA and Vicpol, bargaining is taking place during normal working hours. Sgt. Bowers believes he is at a disadvantage in not being able to participate in the full bargaining sessions.
[24] It appears to me that a one consideration is whether or not Sgt. Bowers and those he represents are suffering a disadvantage in terms of the good faith bargaining requirements by him not having paid time off work to attend the common bargaining table. The other consideration is whether or not Sgt. Bowers and those he represents is disadvantaged in terms of the good faith bargaining requirements in not getting paid time off to meet separately with Vicpol in a bargaining session.
[25] It is true that there is no requirement for employee bargaining representatives to have a single bargaining unit. Sections 228(f) and 230(3)(a)(ii) clearly comprehend that single bargaining units are not the only forum that can be established for bargaining but there might be circumstances where bargaining cannot proceed efficiently or fairly with multiple bargaining representatives. In this connection, it is interesting to note that in the restructuring and efficiency principle adopted in the late 1980’s, the formation of a single bargaining unit was seen as a way of pursuing productivity and efficiency by ensuring that there were no artificial demarcation barriers thus enhancing the opportunity for workplace flexibility. 3 In the context of that time, it was largely the employers who were seeking to ensure that bargaining comprehended the entire business unless there were aspects of the business which were discrete. Having everybody in the same room enabled all interests to be considered at the same time and prevented cherry picking of issues by separate bargaining interests.
[26] The key question, to my mind, is whether or not Vicpol is taking Sgt. Bowers and those he represents seriously and giving genuine consideration to his proposals and genuinely trying to reach agreement. From those matters much follows. There is no evidence that Vicpol is doing anything other than treating the views of Sgt. Bowers seriously and affording him the same level of commitment to a negotiated outcome as they are giving the PFA. It may be different if Vicpol was simply treating Sgt. Bowers as an afterthought and not seriously engaging him in negotiations. Again, it may be different if Vicpol had simply advised Sgt. Bowers, or acted in a way which meant that nothing Sgt. Bowers could say would persuade them from departing from, or adding to, that which was agreed between Vicpol and the PFA. In short, his representation cannot be viewed by Vicpol as futile. But again, that might give rise to an order requiring Vicpol to have a single bargaining unit rather than a reason why Sgt. Bowers should be paid to attend a single bargaining unit. If such circumstances existed then it would be proper to hear from all bargaining representatives about the forum for bargaining.
[27] There is no evidence (indeed the contrary is the case) that Vicpol is seeking to prevent Sgt. Bowers from attending the bargaining meetings with it and the PFA by not providing him with leave at the relevant time. There is no suggestion that Vicpol is demanding a working pattern for Sgt. Bowers which would prevent him from joining the current negotiations.
[28] I have examined whether or not an argument exists in relation to the obligations under s.228(1)(a) which requires: attending, and participating in, meetings at reasonable times. Could it be said that Vicpol’s approach is calculated to prevent Sgt. Bowers from attending, and participating in, meetings at reasonable times? The proposition being, that irrespective of whether or not Sgt. Bower seeks to meet in the same forum as the PFA, there are constraints on Sgt. Bowers such that he cannot meet at reasonable times without getting paid leave. In the circumstances of this employment it is possible to arrange working patterns so that a person can attend without being regarded as on duty.
[29] For an employee to act as a bargaining representative it is essentially a voluntary act. I cannot see that the employer is failing to bargain in good faith by the simple act of declining to pay a person who volunteers to act as a bargaining representative with all the rights and responsibilities that such a function entails. Whilst there is clear statutory encouragement for enterprise bargaining between employers and employees I do not see that the requirement to bargain in good faith carries with it, in the circumstances of this case, a duty to provide paid leave to the bargaining representative.
[30] Before concluding it is appropriate to observe that many employers do not provide paid time for employees to attend bargaining sessions. They understand a need to have those directly involved in the enterprise at the bargaining table to provide instructions to the bargaining representatives so that bargaining can take place efficiently.
[31] Many employers wish to have employees hear, first hand, the needs and expectations of the enterprise. Bargaining is often about building trust and paid leave facilitates the maximum level of participation to enable clear understandings of the business of the enterprise and matters which impact upon it. In the event that there are multiple bargaining representatives and bargaining is not proceeding efficiently or fairly then an application can be made.
[32] My decision in this matter is not intended to criticise, disturb or otherwise interrupt that approach.
[33] The application is dismissed.
COMMISSIONER
Appearances:
R. Bowers the applicant.
L. Cheligoy with S. Cole and C. Thompson on behalf of Victoria Police.
Hearing details:
2011.
Melbourne:
April, 6.
1 Transcript PN186 and 187
2 See s.229(4)
3 See for example (1991) CAR 722 at 737
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