Textile, Clothing and Footwear Union of Australia

[2011] FWA 2465

[2011] FWA 2465

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Textile, Clothing and Footwear Union of Australia
(B2011/2773)

COMMISSIONER GOOLEY MELBOURNE, 21 APRIL 2011

Proposed protected action ballot by employees of Godfrey Hirst Australia Pty Ltd.

[1] The Textile Clothing and Footwear Union of Australia (TCFUA) applied for a protected action ballot order pursuant to section 437 of the Fair Work Act 2009 (FW Act). The application was lodged in Fair Work Australia on 15 April 2011.

[2] At the hearing on 18 April 2011 Ms Vivienne Wiles appeared for the TCFUA and Mr Tony Dalton from the Australian Industry Group appeared for Godfrey Hirst Australia Pty Ltd (Godfrey Hirst).

[3] Ms Jenny Kruschel the Assistant Secretary for the TCFUA Victoria Branch gave evidence on behalf of the TCFUA and was cross examined. No witnesses gave evidence for Godfrey Hirst.

[4] On 18 April, I issued an order 1 in this matter. At the hearing I indicated that I was satisfied that the procedural requirements of the FW Act had been complied with and that I was satisfied that the TCFUA was genuinely trying to reach an agreement with Godfrey Hirst. I indicated I would publish the reasons for my decision.

Background

[5] Godfrey Hirst is a tufted carpet manufacturer based in Geelong.

[6] The TCFUA and Godfrey Hirst are parties to and bound by the Godfrey Hirst -TCFUA Collective Agreement 2007 (the 2007 Agreement). The 2007 Agreement’s nominal expiry date was 30 June 2010.

The Bargaining

[7] The TCFUA is the bargaining representative for members of the TCFUA employed by Godfrey Hirst. In addition, a number of employees including TCFUA delegates had appointed themselves or been appointed by others as bargaining representatives.

[8] The TCFUA and Godfrey Hirst commenced negotiations for a new agreement on 21 April 2010 when Godfrey Hirst wrote to the TCFUA advising that Godfrey Hirst intended commencing negotiations for a replacement agreement and that it would be issuing a notice of representational rights to all employees to be covered by the proposed agreement. 2

[9] The first negotiation meeting took place on 6 May 2010. Ms Jenny Anderson the Group HR/IR Manager, Mr Michael Cherry (HR Adviser) and Ms Sarah Miles represented Godfrey Hirst. Ms Kruschel and Ms Karen Douglas represented the TCFUA. At that meeting the processes associated with the negotiations were discussed and Godfrey Hirst tabled a draft agreement which the TCFUA took to be Godfrey Hirst’s log of claims. 3

[10] The parties agreed to seek the assistance of Fair Work Australia and on 17 May 2010 the TCFUA filed a section 240 application. On 3 June 2010 a conference chaired by Fair Work Australia was held.

[11] On 10 June 2010 the TCFUA provided Godfrey Hirst with its log of claims and two further meetings on 10 June and 22 June 2010 were held between the parties.

[12] Subsequently, conferences of the parties were convened by Fair Work Australia on 24 June, 28 June, 22 July, 8 July, 22 July and 28 July 2010.

[13] The parties conferred directly on 12 August 2010. Further conferences were then convened by Fair Work Australia on 27 August, 4 September and 13 September 2010.

[14] At the conference on 13 September 2010 Godfrey Hirst advised that it would put the agreement dated 13 September 2010 to a vote of employees and the vote was conducted on 24 September 2010. The proposed agreement was not approved by a majority of employees. 4

[15] Further conferences were convened by Fair Work Australia on 16 November 2010, 1 February, 7 February and 22 February 2011.

[16] On 22 February 2011 there remained a number of key outstanding issues between the parties. 5 The TCFUA indicated at that meeting that it was prepared to continue the negotiations. Godfrey Hirst advised that it would have further discussions only if there was something to discuss.6

[17] After conferring with its members on 16 March 2011 the TCFUA wrote to Godfrey Hirst on 31 March 2011seeking a meeting to progress negotiations. On 5 April 2011 Godfrey Hirst advised that it was prepared to attend a conference convened by Fair Work Australia. On 14 April 2011 the TCFUA agreed to participate in the conference.

[18] The TCFUA has regularly conferred with its members during the negotiations. 7

Issues not in contention

[19] There was no dispute between the parties that the TCFUA had the standing to make the application and that the application was consistent with the requirements of section 437(3) of the FW Act.

[20] Further, it is not in dispute that the application was served on Godfrey Hirst and the Australian Electoral Commission.

[21] It was not disputed that the nominal expiry date of the predecessor agreement had been passed.

Adjournment Application by Godfrey Hirst

[22] At the commencement of the proceedings Godfrey Hirst sought an adjournment of the proceedings. Mr Dalton advised that Godfrey Hirst had received on 18 April 2011 notices of resignation as bargaining representatives from 8 of the individual bargaining representatives. The notices advised that the resignations took effect on 17 April 2011. 8

[23] Mr Dalton referred to regulation 2.06 of the Fair Work Regulations 2009 which provides as follows:

“2.06 Appointment of bargaining representatives — independence

A bargaining representative of an employee must be:

(a) free from control by the employee’s employer or another bargaining representative; and

(b) free from improper influence from the employee’s employer or another bargaining representative.”

[24] Mr Dalton submitted that “the bargaining representatives resigning en masse prior to this application being heard and determined is strongly suggestive of coordinated and collective conduct which calls into question their independence and as such the validity of the whole process of the negotiations so far. The action also raises the question of good faith bargaining. If the bargaining representatives have been under the control or influence of the union how have they been free and independent enough to bargain in good faith.” 9

[25] Mr Dalton further relied upon an article in the TCFUA journal which identified a bargaining representative as a TCFUA delegate. 10

[26] Mr Dalton sought an adjournment to enable Godfrey Hirst to “investigate this matter further, prepare our submissions on this matter so they can be more fully heard and it may even require that the bargaining representatives be called as witnesses in regards to this matter so that we can get evidence under oath in regards to the activities that have occurred.” 11

[27] Mr Dalton, whilst acknowledging the statutory obligation of Fair Work Australia in section 441(1) of the FW Act to, as far as practicable, hear and determine the application within two working days, submitted that in this case the issues raised by Godfrey Hirst could not be properly tested without an adjournment to allow them to prepare material and call relevant witnesses. 12

[28] The TCFUA opposed the adjournment. Ms Wiles submitted that the submissions put by Mr Dalton are not relevant to the issue to be determined by the Tribunal. She further submitted that in relation to the allegations made by Godfrey Hirst, Godfrey Hirst had remedies under the FW Act. Ms Wiles submitted that 6 of the 8 individual bargaining representatives are union delegates. She advised that the union had legal advice to the effect that employee bargaining representatives would not able to participate in the protected action ballot if the TCFUA’s application were approved. They would have to bring their own application for a protected action ballot order. Ms Wiles indicated that the TCFUA provided this advice to the individual bargaining representatives and “it was entirely their decision about whether they wished to remain as a bargaining representative or wished to withdraw their status as a bargaining representative in order to be covered by any proposed order which the tribunal may make.” 13

[29] I declined to grant the adjournment. The FW Act provides that if the statutory prerequisites have been complied with, Fair Work Australia must make a protected action ballot order if it is satisfied that the party applying for the protected action ballot order is genuinely trying to reach an agreement. It is not necessary in this application for a determination to be made about whether the other bargaining representatives are genuinely trying to reach an agreement. Godfrey Hirst’s submissions raise questions about the conduct of the individual bargaining representatives. Even if the facts were as submitted by Godfrey Hirst, those facts are not relevant to a determination of whether the TCFUA is genuinely trying to reach an agreement with Godfrey Hirst.

[30] The FW Act provides at section 441(1) as follows:

“(1) FWA must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.”

[31] In the circumstances I determined that it was appropriate to hear and determine the application.

Evidence of the TCFUA

[32] Ms Kruschel was not cross-examined on the content of her witness statement. 14

[33] Mr Kruschel was cross examined on her relationship with the other bargaining representatives. She gave evidence that she had given the bargaining representatives advice on the TCFUA’s legal advice about whether the individual bargaining representatives could participate in the protected action ballot. 15 She gave evidence that she did not encourage them to nominate as bargaining representatives and that she did not know of any person who works for the TCFUA giving any such encouragement to them.16 She admitted that she had met with the individual bargaining representatives separately to meeting with Godfrey Hirst and discussed with them the union’s position.17

[34] She denied that the bargaining representatives were not independent of the TCFUA. 18 She admitted that the TCFUA provided employees with a pro forma notice regarding the appointment of bargaining representatives. Further, Ms Kruschel admitted that the bargaining representatives accepted in the negotiations the positions adopted by members of the TCFUA but that “at some times some of them raised issues in the negotiations.”19 She accepted that the individual bargaining representatives did not put forward separate claims to those put by the TCFUA.20 She rejected the proposition that they were simply union proxies.21 She further rejected the proposition they were not acting independently of the union and were acting in concert with the union.22

Submissions of the TCFUA

[35] The TCFUA submitted that the evidence established that the TCFUA had been prepared to consider seriously the offers and proposals made by Godfrey Hirst and to take account of its arguments. 23

[36] The fact that not all of Godfrey Hirst’s claims have been warmly received by the TCFUA does not mean that the TCFUA is not genuinely trying to reach an agreement. 24

[37] The TCFUA submitted that the evidence supported a conclusion that the TCFUA is genuinely trying to reach agreement. It has formally met with Godfrey Hirst on 17 occasions.

[38] There have been exchanges of emails and letters in relation to the negotiations and there has been an exchange of documents for the purpose of negotiations. 25

[39] The TCFUA has changed and altered its position during the negotiations. 26 However even if it had not, the TCFUA submitted that that is not determinative of the question of whether the TCFUA is genuinely trying to reach agreement.27

[40] Ms Kruschel’s uncontested evidence was that the TCFUA is genuinely trying to reach agreement. 28

[41] It was also submitted that the application for a protected action ballot order is not inconsistent with genuinely trying to reach agreement. 29

[42] While it was submitted that the test of genuinely trying to reach agreement is not a test of whether the TCFUA is bargaining in good faith. The TCFUA submitted that the evidence supports the conclusion that the TCFUA was in fact bargaining in good faith. 30

[43] Further, Ms Kruschel’s uncontested evidence is that the TCFUA is still seeking to meet with Godfrey Hirst to reach an agreement.

Submission of Godfrey Hirst

[44] Godfrey Hirst submitted that the evidence established that the TCFUA provided a number of employees with pro forma notices which they could use to nominate as bargaining representatives and that the TCFUA had provided advice to the bargaining representatives about their ability to participate in the protected action ballot. Godfrey Hirst also submitted that the evidence established that the TCFUA had met with the other bargaining representatives and discussed the bargaining position to be put to Godfrey Hirst. This it was submitted supported a conclusion that the bargaining representatives were not independent bargaining representatives. 31

[45] I put to Mr Dalton this question: “Even, if the union had encouraged people to become bargaining representatives, and even if the union had provided advice that if they weren’t represented by them as bargaining representatives they couldn’t participate in the ballot, I am not sure whether that gets as far as to say that’s controlled by the union or improper influence, because it’s not just any influence, it’s improper influence.” 32

[46] Mr Dalton replied: “Yes Commissioner, I do understand, and I did take the word “independence” from the title and have inferred from the title of that regulation that independence is the purpose of those two provisions, that those bargaining representatives display some independence as bargaining representatives. The word “independence” is clearly there in the title.”. 33

[47] In response to further questioning he submitted that because the individual bargaining representatives were not present it was not possible to ask them about the influence and control that has been present during the process. 34

[48] Godfrey Hirst submitted that the role of the TCFUA in encouraging people to be bargaining representatives, in meeting with them during the bargaining process and the actions of the bargaining representatives in acting in concert with the TCFUA undermined ‘the veracity of the process and therefore what has flown from the process.” 35

[49] Godfrey Hirst further submitted that the “question of the genuinely try test cannot be honestly satisfied without the evidence of the bargaining representatives as to the role of the union in their activities as bargaining representatives.” 36 Therefore Fair Work Australia cannot be satisfied that the TCFUA is genuinely trying to reach agreement and further it calls into question whether the TCFUA is bargaining in good faith.37

[50] Godfrey Hirst accepted the evidence of Ms Kruschel about the negotiation process. 38

[51] Mr Dalton accepted that Godfrey Hirst knew that at least 5 of the individual bargaining representatives were union delegates from the beginning of the negotiation process and that no issue was raised about that and no good faith bargaining applications had been made.

[52] In response Godfrey Hirst submitted that it was the co-ordinated resignations which “demonstrated that control is significant”. 39

The TCFUA’s submissions in reply

[53] The TCFUA submitted that Godfrey Hirst had known since May 2010 the union delegates had been appointed bargaining representatives and that no issue of their independence had been raised during negotiations. 40 The TCFUA submitted that there was nothing to prevent the individual bargaining representatives from putting their position forward and making comments during the negotiations.41 The TCFUA further submitted that the TCFUA had been quite clear about how the resignations of the individual bargaining representatives had come about and there was nothing dishonest about that process.42

[54] The TCFUA submitted that the union had “participated genuinely and openly and with good faith of trying to reach an agreement on behalf of its members at the site. We say the process had been transparent.” 43 No pressure had been placed on the individual bargaining representatives to resign. They did so of their choice.44

The legislative framework

[55] Section 443 of the FW Act provides that:

“(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

[56] The test that is to be applied in this case is not the test that must be applied when determining if a bargaining representative is meeting its good faith bargaining requirements in section 228 of the FW Act. 45

Conclusion

[57] Whether the TCFUA encouraged members and non members to nominate as bargaining representatives, or caucused with those bargaining representatives during the negotiating process and agreed on a united position to put to Godfrey Hirst or provided the individual bargaining representatives with legal advice about their ability to participate in the protected action ballot is not relevant to the question to be determined in this matter.

[58] The submission that by acting in concert bargaining representatives are not genuinely trying to reach agreement or are not bargaining in good faith is not sustainable.

[59] In any event, Godfrey Hirst was always aware that some of the bargaining representatives were union delegates and that all the individual bargaining representatives caucused with the TCFUA. Given the chronology of events, Godfrey Hirst was not able to call evidence from the individual bargaining representatives, however Godfrey Hirst did not call any evidence about how, had the facts as alleged by them been substantiated, the bargaining for the agreement would have been affected.

[60] The matter to be determined is whether the TCFUA is genuinely trying to reach an agreement. While Godfrey Hirst made submissions that the resignation of the individual bargaining representatives called into question the bona fides of the TCFUA in bargaining no submissions were made as to how the genuineness of TCFUA’s bargaining for the agreement, as outlined in Ms Kruschel’s unchallenged evidence, was or could have been called into question by the decision of the bargaining representatives on 17 April 2011 to resign as bargaining representatives.

[61] The unchallenged evidence of Ms Kruschel is that the TCFUA was and is genuinely trying to reach an agreement Godfrey Hirst.

[62] For the reasons set out above I am satisfied that the TCFUA has been, and is, genuinely trying to reach an agreement with Godfrey Hirst.

COMMISSIONER

Appearances:

Ms V Wiles for the TCFUA

Mr T Dalton for Godfrey Hirst Australia Pty Ltd

Hearing details:

2011.

Melbourne:

April 18

 1   PR 508583

 2   Exhibit TCFUA 1 at [6]

 3   Ibid at [8]

 4   Ibid at [24]

 5   Ibid at [33]

 6   Ibid

 7   Ibid at [39]

 8   Exhibit GH1

 9   Transcript PN 11

 10   Ibid PN 13

 11   Ibid PN 14

 12   Ibid PN 23

 13   Ibid PN 14

 14   Exhibit TCFUA 1

 15   Transcript PN 38

 16   Ibid PN 39-42

 17   Ibid PN 43-44

 18   Ibid PN 45

 19   Ibid PN 51

 20   Ibid PN 52

 21   Ibid PN 54

 22   Ibid PN 55

 23   Applicant’s outline of submissions at [16]

 24   Ibid at [17]

 25   Ibid at [18]

 26   Ibid at [19]

 27   Ibid at [20]

 28   Ibid at [21]

 29   Ibid at [22]

 30   Ibid at [25]

 31   Transcript PN 89

 32   Ibid PN 92

 33   Ibid PN 93

 34   Ibid PN 95

 35   Ibid PN 100

 36   Ibid PN 102

 37   Ibid

 38   Ibid PN 103

 39   Ibid PN 107

 40   Ibid PN 109

 41   Ibid PN 110

 42   Ibid PN 111

 43   Ibid PN 112

 44   Ibid PN

 45   Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 at [33]

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<Price code C, PR508690>