Textile, Clothing and Footwear Union of Australia v Riverside Textiles Pty Ltd
[2011] FWA 1266
•28 FEBRUARY 2011
[2011] FWA 1266 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.437—Protected action
Textile, Clothing and Footwear Union of Australia
v
Riverside Textiles Pty Ltd
(B2011/2548)
COMMISSIONER GOOLEY | MELBOURNE, 28 FEBRUARY 2011 |
Proposed protected action ballot by employees of Riverside Textiles 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 (Cth)(FW Act). The application was lodged with Fair Work Australia on 3 February 2011.
[2] At the hearing on 18 February 2011 Ms Vivienne Wiles appeared for the TCFUA and Mr Alex Manos of Counsel appeared with permission for Riverside Textiles Pty Ltd (Riverside).
[3] Ms Karen Douglas gave evidence on behalf of the TCFUA and was not cross examined. Ms Jenny Anderson gave evidence on behalf of Riverside and was cross examined.
[4] On 21 February 2011, I issued a decision 1 and order2 in this matter. 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 Riverside. I indicated I would publish the reasons for my decision.
Background
[5] Riverside is a wholly owned subsidiary of Godfrey Hirst Pty Ltd (Godfrey Hirst). 3 Godfrey Hirst is a tufted carpet manufacturer, distributor and exporter based in Geelong.4
[6] The Riverside textile manufacturing plant in North Geelong produces yarns which are used in Godfrey Hirst carpets. 5 Riverside employs approximately 89 people at North Geelong and their employment is currently regulated by the Riverside Textiles - TCFUA Collective Agreement 2008 (the 2008 Agreement). The 2008 Agreement’s nominal expiry date was 31 December 2010.6
The Bargaining
[7] The TCFUA is the bargaining representative for members of the TCFUA employed by Riverside. In addition Mr Rob Wyld had appointed himself as a bargaining representative.
[8] Ms Anderson and Ms Sarah Miles represented Riverside in all negotiations. Ms Jenny Kruschel the Assistant Secretary of the TCFUA, Ms Douglas and Mr Mick Ryan, a TCFUA shop steward, represented the TCFUA during the negotiations.
[9] The TCFUA and Riverside commenced negotiations for a new agreement on 4 October 2010 when Riverside issued a notice of representational rights to all employees to be covered by the proposed agreement. 7 On 5 October 2010, Riverside advised the TCFUA of this.8 It was not disputed that there have been 5 meetings to discuss the proposed agreement.9 The TCFUA gave evidence that 2 negotiation meetings were cancelled by Riverside. The 21 December 2010 meeting was cancelled as the TCFUA had not been able to meet with its members. This occurred because, while a notice of the meeting had been faxed to Riverside, it had not been received and therefore employees were not advised of the meetings. Ms Anderson gave evidence that the TCFUA was still prepared to meet but Riverside decided to cancel the meeting because there were no issues that could be discussed given the TCFUA had not consulted its members.10
[10] A further meeting on 4 February 2011 was cancelled by Riverside to enable Riverside to prepare for the protected action ballot order application hearing scheduled for 7 February 2011. 11
[11] The first negotiation meeting held on 19 October 2010 discussed the process to be adopted by the parties. It was Ms Anderson’s evidence that Riverside wished to meet weekly and this was not agreed to by the TCFUA. 12 It was the uncontested evidence of Ms Douglas that the TCFUA was not able to meet weekly because of the need to consult TCFUA members between meetings. Ms Anderson agreed with this evidence.13 Ms Douglas also said that the position of the TCFUA was that fortnightly meetings were appropriate and that “as matters progressed it may very well be appropriate that weekly meetings are convened between the parties.”14
[12] At the second negotiation meeting on 29 October 2010, the TCFUA outlined its claim and on 1 November 2010 provided a written log of claims to Riverside. Riverside provided the TCFUA with an electronic copy of their claim.
[13] The next meeting was to take place on 22 November 2010 but at Riverside’s instigation it was changed to 24 November 2010. 15 On 22 November 2010 Ms Douglas sent Riverside a document detailing the TCFUA’s response to Riverside’s claim.16
[14] The third negotiation meeting was held on 24 November 2010. At that meeting a further discussion of the claims took place. Ms Anderson advised the meeting that “Riverside would not change its wage offer and that Riverside reserved its right to put a document out to workers regardless of whether they had reached agreement with the union.” 17
[15] The TCFUA requested paid meetings with its members but Riverside did not agree. The TCFUA advised that it would provide some draft clauses by 26 November 2010 and it advised that additional drafts would be provided once the meetings with members had occurred. 18
[16] Ms Douglas forwarded a number of draft clauses to Riverside on 26 November 2010 and advised that further clauses would be provided after conferring with members. 19
[17] On 1 December 2010 Ms Anderson requested further detailed information by 3 December 2010 and on 3 December 2010 the TCFUA provided further draft clauses and responded to some of Ms Anderson’s issues.
[18] The fourth negotiation meeting occurred on 8 December 2010 and a number of issues were discussed. The TCFUA advised Riverside of its amended wages claim. 20 At this meeting Riverside put forward its new skill level classification structure.21
[19] As discussed above the meeting scheduled for 21 December 2010 did not occur. Riverside shut for Christmas/New Year. 22
[20] The fifth negotiation meeting was held on 21 January 2011. Discussions at that meeting canvassed a number of issues including Riverside’s wages claim. It was Ms Douglas’s evidence that at this meeting Riverside advised the TCFUA that Riverside would not be putting an alternative wages offer. 23
[21] The next scheduled meeting was 4 February 2011. On 3 February 2011 the TCFUA filed this application for a protected action ballot order.
[22] On 4 February 2011 Ms Anderson sent Ms Kruschel an email advising of the need to defer the meeting as Riverside needed to prepare for the hearing of the TCFUA’s application. 24 The TCFUA wrote to Ms Anderson on the same day advising that it wanted the meeting to proceed and attached to that correspondence its proposed annual leave clause.
[23] The meeting did not proceed on 4 February 2011, and the TCFUA, on 10 February 2011, wrote to Riverside seeking a further meeting. On 15 February 2011 Ms Anderson responded and proposed that a meeting could occur on 24 February 2011 but proposed that future negotiations be undertaken with the assistance of Fair Work Australia. 25
[24] Ms Anderson gave evidence that there were a number of outstanding matters which had been subject to little discussion. 26 She further gave evidence that Riverside was expecting a response from the TCFUA about a number of matters:
1. Wages - It was Ms Anderson’s evidence, that, in response to her request at the meeting on 21 January 2011, that the TCFUA justify its 6% wages claim, one representative disagreed with the productivity statistics and said that further information would be presented at the next meeting in support of the 6% claim. 27
2. Compassionate leave - It was Ms Anderson’s evidence that the TCFUA was to respond after the meeting on 21 January 2011. 28
3. Workloads - Ms Anderson, at the meeting on 21 January 2011, informed the TCFUA that Riverside did not believe a review of workloads was necessary. It was her evidence that she asked the TCFUA to justify why a review should occur and that the TCFUA had not responded. 29
4. Personal leave - It was Ms Anderson’s evidence that Ms Douglas was to provide an alternative form of wording after the meeting on 8 December 2011 and she had not done so. 30
5. Unpaid leave - It was Ms Anderson’s evidence that she provided information to the TCFUA on 19 January 2011 and the TCFUA had not responded. 31
6. Shift allowances - It was Ms Anderson’s evidence that at the meeting on 8 December 2010 she asked for the TCFUA’s shift allowance claim to be explained and that she had not had a response. 32
7. Superannuation - It was Ms Anderson’s evidence that at the meeting on 8 December 2010, she asked the TCFUA to justify this claim and she had not had a response. 33
8. Leading hand rates - It was Ms Anderson’s evidence that this claim was discussed at the meeting on 24 November 2010 and the TCFUA was going to respond to the information provided by Riverside and had not done so. At the meeting on 4 December 2010 a discussion took place about the payment of higher duties to leading hands when the supervisor is absent. It was Ms Anderson’s evidence that Riverside is still awaiting an explanation of this claim from the TCFUA.
[25] Further, it was Ms Anderson’s evidence that Riverside was to provide additional information about 4 matters to the TCFUA, namely the efficiency based incentive bonus, the classification structure, the meal allowance and annual leave. 34
[26] It was Ms Anderson’s evidence that it normally took between 3 to 6 months to negotiate agreements between the TCFUA and the Godfrey Hirst group of companies. If agreement could not be reached then the assistance of FWA (or previously the AIRC) was sought. 35 On those occasions agreements could take up to 12 months to finalise.
[27] In response to the evidence of Ms Anderson, Ms Douglas replied as follows:
1. Wages - Neither she nor Ms Kruschel committed to providing information and she does not know which union representative Ms Anderson is referring to. 36
2. Compassionate leave - This was to be discussed at the meeting on 4 February 2011. 37
3. Workloads - This matter was discussed at length at the meeting held on 8 December 2010 and Ms Anderson clearly put Riverside’s position that Riverside rejected the claim. 38
4. Personal leave - There was no request for alternative wording. 39
5. Unpaid leave - She did not agree. 40
6. Shift allowance - She said the TCFUA had responded. 41
7. Superannuation - This was discussed on 8 December 2010 and 21 December 2011 and Ms Anderson undertook to respond on 4 February 2011. 42
8. Leading hands - A draft clause was provided by the TCFUA.
Issues not in contention
[28] 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.
[29] Further it was not in dispute that the application was served on Riverside and the Australian Electoral Commission
[30] It was not disputed that the nominal expiry date of the predecessor agreement had passed.
Submissions of the TCFUA
[31] The TCFUA submitted that the evidence established that the TCFUA had been prepared to consider seriously the offers and proposals made by Riverside and to take account of its arguments. 43
[32] The fact that not all of Riverside’s claims have been warmly received by the TCFUA does not mean that the TCFUA is not genuinely trying to reach an agreement. 44
[33] The TCFUA submitted that the evidence supported a conclusion that the TCFUA is genuinely trying to reach agreement. It has formally met with Riverside on 5 occasions and was willing to meet on the 2 occasions bargaining meetings were cancelled by Riverside. It was further submitted that the TCFUA, after this application was made, sought to meet with Riverside to progress negotiations. 45
[34] 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. 46
[35] The TCFUA has changed and altered its position during the negotiations. 47 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.48
[36] It was Ms Douglas’s uncontested evidence that the TCFUA is genuinely trying to reach agreement. 49
[37] It was also submitted that making the application for a protected action ballot order is not inconsistent with genuinely trying to reach agreement. 50
[38] 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. 51
Submission of Riverside
[39] Riverside submitted that the application for a protected action ballot order was premature. 52 Riverside submitted that only 5 bargaining meetings had occurred and the total time spent in meetings had been at most 6 hours. Further, it was submitted that the discussions in those meetings were limited. 53
[40] Riverside submitted that the predecessor agreement’s nominal expiry date was 31 December 2010. 54
[41] Riverside submitted that the TCFUA was not bargaining in good faith. 55 In particular Riverside emphasised particular good faith bargaining requirements namely the requirement to respond to proposals made by other bargaining representatives for the agreement in a timely manner (section 228(1) (c) of the FW Act), and the requirement to give genuine consideration to the proposals of other bargaining representatives for the agreement and give reasons for the bargaining representative’s responses to those proposals (section 228(1) (d) of the FW Act).56
[42] Riverside submitted that because only a few meetings had occurred and there was only a short time spent discussing the terms of the proposed agreement, the parties have not yet fully articulated their views. 57 “Claims and counter claims have not yet occurred in respect of key matters.”58 It was submitted that if the parties continued to meet they would have an opportunity to understand the other’s position.
[43] Further it was submitted that there was a pattern of bargaining between these parties 59 and the failure of the TCFUA to refer negotiations to a member of Fair Work Australia is “a direct reflection of the Union’s lack of effort to reach an agreement.”60
[44] Riverside submitted that the TCFUA had failed to comply with section 228(1)(c) and (d) of the FW Act by not sufficiently articulating its position, by not providing reasons for rejecting Riverside’s offer and it had not afforded Riverside sufficient time to express its position.
[45] Riverside relied upon the decision of the Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia 61 to support its contention that the TCFUA is not genuinely trying to reach an agreement. In particular reference was made to paragraph [32] of that decision62 where the Full Bench said “premature applications, where sufficient steps have not been taken to satisfy the test that the Applicant had genuinely tried to reach an agreement, cannot be granted.”
The TCFUA’s submissions in reply
[46] The TCFUA submitted that the evidence before the Tribunal did not support the contention that Riverside did not understand the TCFUA’s claim. 63 It was also submitted that the recent nominal expiry date of the 2008 Agreement is not a relevant consideration.64
[47] In response to the submissions of Riverside that the TCFUA was not bargaining in good faith the TCFUA submit that that was not the test, but in any event, the evidence established that the TCFUA was bargaining in good faith. 65
[48] The TCFUA submitted that they were in a position to respond to some of the outstanding matters at the 4 February 2011 meeting, however this meeting was cancelled by Riverside. The TCFUA was willing to continue the negotiations and it submitted that seeking a protected action ballot order is not inconsistent with this. 66
[49] The TCFUA rejected the submissions of Riverside about the pattern of bargaining submitting that this was not a relevant consideration and in any event four of the six negotiations referred to occurred under the Workplace Relations Act 1996 (Cth) which had a different bargaining regime. 67
[50] The TCFUA also submitted that a failure to refer the negotiations to Fair Work Australia for assistance with bargaining was not a relevant consideration.
The legislative framework
[51] 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.”
[52] 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. 68
[53] In Total Marine Services the Full Bench held that the MUA was not genuinely trying to reach agreement because there had been limited face to face meetings and limited articulation of many of the claims. The Full Bench found, on the facts before it, that the MUA had taken preparatory steps to developing an agreement but that was not sufficient to establish that it was genuinely trying to reach an agreement. 69
[54] That is not the case here. The parties have met and exchanged detailed claims. It is not appropriate to assess negotiations on a numerical basis. It is not the number of meetings that have occurred or the time spent in the meetings that determine if a party is genuinely trying to reach an agreement. In this case the parties have met face to face 5 times and could have met on further occasions but for the cancelling of two meetings by Riverside.
[55] The parties have clearly put their respective claims to each other and those claims have been discussed. Unlike the situation in Total Marine Services not only has the TCFUA put a wages claim to Riverside, that claim has been modified during the negotiations. The parties have exchanged draft clauses in this process. This cannot be described as preparatory steps. The parties are negotiating and as Ms Anderson said negotiations are progressing (albeit slowly). 70 Ms Douglas also agreed that negotiations were progressing.71
[56] I agree with the views expressed by Commissioner Smith 72 where he said of Total Marine Services:
“IBM relied upon the decision in Total Marine Services Pty Ltd v Maritime Union of Australia to support the proposition that a bargaining agent can be genuine but unless claims have been articulated, explained and discussed then a party is not genuinely trying to reach agreement.
With respect to IBM this seems to be a very narrow reading of the Total Marine Services Decision. The Full Bench in that matter made it clear that the concept of genuinely trying to reach agreement will be determined by the circumstances of particular negotiations. The Bench said that it was not useful to determine any alternative test or criteria because it is the words of s.443 which must be applied. The Full Bench in that matter considered all the facts and circumstances of that matter and arrived at a conclusion.
The approach of the Total Marine Services Full Bench is not at odds with other decisions which highlight that parties are not required to bargain until impasse before a protected action ballot order can be sought. Resorting to economic power by either party may well form an integral part of difficult negotiations. The object of action of this kind is to persuade the person with whom you are bargaining to agree with you.”
[57] I do not accept the submissions of Riverside that the TCFUA has failed respond to proposals made by Riverside in a timely manner or has failed give genuine consideration to the proposals of Riverside or has not given reasons for the TCFUA’s responses to those proposals. The material before the Tribunal shows that the TCFUA has responded to the matters raised by Riverside. For example on 22 November 2010 the TCFUA provided a detailed response to Riverside’s claim. On 26 November 2010 the TCFUA provided draft clauses to Riverside. On 3 December 2010 the TCFUA provided additional information in response to Riverside’s request dated 1 December 2010 and attached further draft clauses. The TCFUA has consulted its members on the claims made by Riverside and fed this information back into the negotiations process. This indicates that the TCFUA is actively pursuing an agreement and that the parties are negotiating an agreement and not merely taking preparatory steps in the negotiation process.
[58] The evidence established that the TCFUA is in fact bargaining in good faith.
[59] In determining whether the TCFUA is genuinely trying to reach an agreement I do not consider the short time period from the nominal expiry date of the Agreement to be a relevant consideration. While the 2008 Agreement’s nominal expiry date was 31 December 2010 Riverside initiated bargaining on 4 October 2010. I also do not consider it a relevant consideration that the pattern of negotiation for this agreement differs from the pattern of negotiation for other agreements under the predecessor Act or for agreements under the FW Act at different sites.
Conclusion
[60] For the reasons set out above I am satisfied that the TCFUA has been, and is, genuinely trying to reach an agreement with Riverside.
COMMISSIONER
Appearances:
V Wiles for the Textile, Clothing and Footwear Union of Australia
A Manos of counsel for Riverside Textiles Pty Ltd
Hearing details:
2011
Melbourne:
February 18.
1 [2011] FWA 1131
2 PR 506542
3 Exhibit RT 1 at [1]
4 Ibid at [3]
5 Ibid at [4]
6 Ibid at [5]
7 Ibid at [6]
8 Exhibit TCFUA 1 at [5]
9 Exhibit RT 1 at [12]
10 Transcript PN 94-97
11 Exhibit TCFUA 1 at KD 15
12 Exhibit RT 1 at [9]
13 Transcript PN 87
14 Transcript PN 51
15 Exhibit TCFUA 1 at [10]
16 Ibid at KD5
17 Ibid at [12]
18 Ibid at [13]
19 Ibid at [14]
20 Ibid at [19]
21 Ibid at [19]
22 Transcript PN 91
23 Exhibit TCFUA 1 at [24]
24 Ibid at KD 15
25 Exhibit RT 1 at JA1
26 Ibid at [16]
27 Ibid at [17.1]
28 Ibid at [17.2]
29 Ibid at [17.3]
30 Ibid at [17.4]
31 Ibid at [17.5]
32 Ibid at [17.6]
33 Ibid at 17.7
34 Ibid at [18]
35 Ibid at [21]
36 Transcript PN 57 and 58
37 Ibid PN 59
38 Ibid PN 62
39 Ibid PN 63
40 Ibid PN 64
41 Ibid PN 65
42 Ibid PN 66
43 Exhibit TCFUA 3 at [16]
44 Ibid at [17]
45 Ibid at [28]
46 Ibid at [18]
47 Ibid at [19]
48 Ibid at [20]
49 Ibid at [21]
50 Ibid at [22]
51 Ibid at [25]
52 Exhibit RT2 at [4]
53 Ibid at 4(a) and (b)
54 Ibid at 4(c)
55 Ibid at 4(d)
56 Ibid at [20]
57 Ibid at [28]
58 Ibid at [28]
59 Ibid at 4(e)
60 Ibid at [33]
61 [2009]FWAFB 368
62 Ibid at [32]
63 Transcript PN 200
64 Ibid PN 202
65 Ibid PN 202
66 Ibid PN 203
67 Ibid PN 204
68 Total Marine Services op cit at [33]
69 Ibid at [36]
70 Exhibit RT 1 at JA 1
71 Transcript PN 54
72 Australian Municipal Administrative Clerical and Services Union v IBM Australia Limited [2010] FWA 4282 at [8]-[10]
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