Textile, Clothing and Footwear Union of Australia v Riverside Textiles Pty Ltd
[2011] FWA 1366
•7 MARCH 2011
[2011] FWA 1366 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Textile, Clothing and Footwear Union of Australia
v
Riverside Textiles Pty Ltd
(B2011/2601)
COMMISSIONER GOOLEY | MELBOURNE, 7 MARCH 2011 |
Proposed protected action ballot by employees of Riverside Textiles Pty Ltd
[1] On 3 February 2011 the Textile Clothing and Footwear Union of Australia (TCFUA) applied for a protected action ballot order. On 21 February 2011 I determined that the TCFUA was genuinely trying to reach an agreement with Riverside Textiles Pty Ltd (Riverside) 1 and a protected action ballot order was issued.2 On 28 February 2011 I issued my reasons for that decision.3
[2] On 25 February 2011 the TCFUA filed an application pursuant to section 448 of the Fair Work Act 2009 (FW Act) seeking revocation of the protected action ballot order.
[3] Section 448 of the FW Act provides as follows:
“448 Revocation of protected action ballot order
(1) An applicant for a protected action ballot order may apply to FWA, at any time before voting in the protected action ballot closes, to revoke the order.
(2) If an application to revoke a protected action ballot order is made, FWA must revoke the order.”
[4] Consequently an order revoking the protected action ballot order was issued on 28 February 2011. 4
[5] On 25 February 2011 the TCFUA filed an application for a protected action ballot order.
[6] A hearing of the application was held on 28 February 2011 and Ms Melinda Richards of Counsel appeared for the TCFUA and Mr Chris Hartigan a legal practitioner appeared for Riverside. Permission was granted to both to appear.
[7] Ms Richards tendered documentary evidence to support the TCFUA submissions. Ms Jenny Anderson gave evidence for Riverside and was cross examined. Mr Hartigan tendered documentary evidence to support Riverside’s submissions.
[8] The TCFUA and Riverside relied upon the evidence and submissions made in the earlier application and I have had regard to that material in reaching this decision.
[9] On 1 March 2011 I issued a decision 5 granting the application and a protected action ballot order6 was issued. In that decision I indicated that I would publish my reasons.
The submissions of Riverside
[10] Riverside submitted that the protected action ballot order should not be made because the TCFUA was seeking the inclusion of unlawful terms in the proposed agreement.
[11] On 26 November 2010 the TCFUA had forwarded to Riverside a claim for paid union meetings as follows:
“Union meetings:
1.6.1 The union may convene three paid time meetings in each calendar year with all employees. The union will provide the employer with reasonable advanced notice of the timing of the meetings. The employer will not unreasonably withhold consent to these meetings.
1.6.2 During negotiations for a replacement collective agreement the TCFUA will be permitted to:
(a) hold consultations with its delegates/representatives in paid time for up to 60 minutes prior to the commencement of each negotiation meeting, including any conciliation or mediation facilitated by FWA in relation to bargaining. Where a negotiation/conciliation is conducted other than at the workplace, the delegates will be allowed reasonable paid travel time to attend and meet with the TCFUA for the purpose of participating in pre-negotiation consultation; and
(b) hold meetings in paid time to consult with and report back to its members regarding the initiation and progress of negotiations for a new collective enterprise agreement.”
[12] There was no dispute that this claim was still being pursued by the TCFUA.
[13] Riverside submitted that this claim was a claim for a term that could not be included in an agreement because it is an unlawful term.
[14] Section 172 of the FW Act provides that an enterprise agreement may be made about permitted matters:
“172 Making an enterprise agreement
Enterprise agreements may be made about permitted matters
(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:
(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;
(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;
(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;
(d) how the agreement will operate.”
[15] Section 186(1) of the FW Act provides that an enterprise agreement must be approved if certain requirements are met.
[16] Section 186(3) provides as follows:
“Requirement that there be no unlawful terms
(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).”
[17] Unlawful terms are defined in section 194 as follows:
“A term of an enterprise agreement is an unlawful term if it is:
(a) a discriminatory term; or
(b) an objectionable term; or
(c) if a particular employee would be protected from unfair dismissal under Part 3-2 after completing a period of employment of at least the minimum employment period—a term that confers an entitlement or remedy in relation to a termination of the employee’s employment that is unfair (however described) before the employee has completed that period; or
(d) a term that excludes the application to, or in relation to, a person of a provision of Part 3-2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to, a person; or
(e) a term that is inconsistent with a provision of Part 3-3 (which deals with industrial action); or
(f) a term that provides for an entitlement:
(i) to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or
(ii) to enter premises to hold discussions of a kind referred to in section 484;
other than in accordance with Part 3-4 (which deals with right of entry); or
(g) a term that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3-4 (which deals with right of entry).”
[18] In this matter Riverside submitted that the term proposed by the TCFUA was an unlawful term because it entitled the TCFUA to enter premises to hold discussions of a kind referred to in section 484 of the FW Act other than in accordance with Part 3-4 (which deals with right of entry). Riverside submitted that I should imply that the clause permits the TCFUA to enter the premises at a time of their choosing to conduct the meetings. 7
[19] Riverside relied upon the decision of the Full Bench in AIG 8 in which it was held that a term which permitted an authorised NUW representative to enter premises at all reasonable times to interview any employee was an unlawful term. The Full Bench held as follows:
“[34] In order to be an unlawful term within s.194 (f) an agreement term must have three elements. The agreement term must provide for an entitlement, the entitlement must be to enter premises for a purpose referred to in s.481 or to hold discussions of a kind in s.484 and the term must purport to permit entry other than in accordance with Part 3-4.
[35] We have no doubt that cl.44 provides for an entitlement. Subject to compliance with the prescribed conditions an authorised NUW representative may enter the premises at any time. Provided the conditions are complied, with there is nothing that Dunlop Foams can do to prevent or restrict entry. It is also clear that the entitlement, being unrestricted by reference to purpose, includes entry for the purpose referred to in s.481, namely investigation of suspected contraventions. Equally the entitlement extends to the holding of discussions with employees, the matter dealt with in s.484. Finally it is clear that cl.44 is not limited in its operation by reference to the provisions of Part 3-4. As we have seen, those provisions establish a regime of regulation of entry to premises based on the requirement to obtain a permit and to observe a number of procedures and rules.”
[20] Riverside further submitted that regard should be had to the conduct of the TCFUA in relation to the earlier ballot order. Riverside submitted that the TCFUA had misled employees about their entitlement to vote in the earlier ballot. Ms Anderson gave evidence that she had been told by employees that Ms Michelle O’Neil had told them that if they became members of the TCFUA by 3 March 2011 that they would be entitled to vote in the ballot. 9 This information, Riverside submitted was wrong and that Ms O’Neil had contravened section 345 of the FW Act.
[21] Section 345 of the FW Act provides as follows:
“345 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
[22] Further it was submitted that Ms O’Neil had breached section 462 of the FW Act which provides for a civil remedy to be imposed if a person interferes with a protected action ballot. It was submitted that Ms O’Neil’s conduct could, if the ballot had gone ahead, have resulted in employees voting who were not entitled to vote and therefore Ms O’Neil hindered or obstructed the holding of the ballot.
Submissions in reply by the TCFUA
[23] The TCFUA submitted that the term was not an unlawful term as it did not permit entry in a manner inconsistent with the FW Act as the term made no reference to right of entry. Further the TCFUA submitted that the TCFUA reasonably believed the term was not an unlawful term and Riverside had been on notice about the claim from November 2010 and had not raised this objection at the earlier hearing.
[24] The TCFUA submitted that no conclusions could be reached on the evidence of Ms Anderson about what Ms O’Neil had said to employees and in any event these matters were not relevant to the issued that needed to be determined, namely whether the TCFUA is genuinely trying to reach an agreement.
Conclusion
[25] In the earlier application I concluded that the TCFUA was genuinely trying to reach an agreement with Riverside. Nothing that was put before me at the hearing has altered that conclusion. Since the hearing of the earlier application the TCFUA has advised Riverside that is was willing to continue meeting. 10 On 28 February 2011 the TCFUA advised Riverside that it was willing to participate in a conference convened by Fair Work Australia.11
[26] I find that the TCFUA is not seeking the inclusion of an unlawful term in the Agreement. The term relied upon by Riverside to support this contention does not create for the TCFUA an entitlement to enter Riverside’s premises. Unlike the clause considered by the Full Bench in AIG it cannot be said that the clause provides the TCFUA with an entitlement to conduct these meetings on Riverside’s premises.
[27] I accept the submissions of Riverside that the clause creates a right for the meetings to be held during working hours. It creates a right for workers to attend these meetings without loss of pay. The clause permits the TCFUA to decide when the meetings take place and provides that Riverside cannot unreasonably withhold their consent to the meetings. All these are permitted under the FW Act. However it does not create an entitlement to the TCFUA to enter the premises.
[28] I do not accept the submissions of Riverside that because the TCFUA has in the past sought to have paid meetings on Riverside’s premises that I should conclude that this is what they are seeking here. Those meetings were not conducted pursuant to any term in the 2008 Agreement. I can only assume that when such meetings have occurred it was by agreement with Riverside.
[29] I also do not accept the submissions of Riverside that the TCFUA’s conduct in relation to the earlier ballot means that the TCFUA is not genuinely trying to reach an agreement with Riverside.
[30] It is unfortunate if employees were given incorrect information about their entitlement to vote in the earlier ballot. I note that the Australian Electoral Commission provided incorrect information to employees about their entitlement to vote. 12 I am not willing to make an adverse finding about the actions of the TCFUA on the basis of the material before me. In any event the conduct of the TCFUA in attempting to enrol members prior to the ballot does not support a contention that the TCFUA is not genuinely trying to reach an agreement with Riverside.
[31] I therefore concluded that the TCFUA was genuinely trying to reach an agreement with Riverside.
COMMISSIONER
Appearances:
M Richards for the Textile, Clothing and Footwear Union of Australia
C Hartigan for Riverside Textiles Pty Ltd
Hearing details:
2011
Melbourne:
February 28.
1 [2011] FWA 1131
2 PR506542
3 [2011] FWA 1266
4 PR507161
5 [2011] FWA 1325
6 PR507159
7 Transcript PN 133-135
8 [2010] FWAFB 4337
9 Exhibit R6 at [9]
10 Ibid at [6]
11 Ibid
12 Exhibit R 1
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