Transport Workers Union of Australia v United Resource Management Pty Limited
[2010] FWA 8765
•12 NOVEMBER 2010
[2010] FWA 8765 |
|
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
Transport Workers Union of Australia
v
United Resource Management Pty Limited
(B2010/3459)
COMMISSIONER CAMBRIDGE | SYDNEY, 12 NOVEMBER 2010 |
Proposed bargaining Order by the Transport Workers Union of Australia
[1] On 28 September 2010 the Transport Workers’ Union of Australia (TWU) made an application for a bargaining Order. The application was made pursuant to section 229 of the Fair Work Act 2009 (the Act). The application identified the respondent as United Resource Management Pty Ltd (URM).
[2] The matter was listed for Mention before Fair Work Australia (FWA) on 1 October 2010, at which time Mr O Fagir appeared for the TWU and Mr R Marshall solicitor from Fisher Cartwright Berriman, appeared for URM. The Parties requested that FWA provide a timetable for the filing and service of evidence and submissions. Directions were made accordingly and the matter proceeded to Hearing on 11 November 2010.
[3] At the Hearing on 11 November Mr Fagir called Michael Aird, an official of the TWU who gave evidence in support of the application. Mr Marshall adduced evidence from one witness, Richie Venn, the General Manager of URM.
[4] The TWU has sought bargaining Orders to require URM to meet with the TWU to discuss a proposed enterprise agreement to cover employees of URM who perform work in connection with URM’s domestic waste collection contract with the Warringah Municipal Council.
[5] URM opposed the application, and in broad terms, submitted that the application was premature, unnecessary and unavailable because the TWU had not established that URM had not met the good faith bargaining requirements of the Act. In the alternative, URM proposed a different form of Orders to those sought by the TWU.
[6] The evidence provided during the Hearing retraced the history of communications between the Parties commencing from about 19 November 2009 until 17 July 2010 when the TWU provided URM with a revised draft of a proposed enterprise agreement. It is important to note that there has been no formal communication between the parties since the provision of the revised draft agreement on 17 July 2010.
[7] However, on 22 July 2010 the TWU made a successful application for protected action ballot order and subsequently on 4 August 2010, the Australian Electoral Commission declared the results of the protected action ballot. The result of the ballot indicated that a clear majority of voters supported the taking of protected industrial action in support of reaching an enterprise agreement. On 13 August 2010 some employees of URM took protected industrial action. Although the TWU notified URM that further protected industrial action was to take place on 18 August and 1 September 2010, that industrial action did not proceed.
[8] On 20 August 2010 the TWU made general protection dispute notifications alleging that URM had taken adverse action against two TWU members as a consequence of their participation in the industrial action that took place on 13 August 2010. One of the general protection dispute notifications has been discontinued and the other has proceeded to a general protections court application.
[9] The 30 day period following the declaration of the protected action ballot expired on 3 September 2010 and there was no application made for an extension of that period. There has been some media attention directed towards issues surrounding the attempts by the TWU to negotiate an enterprise agreement with URM in respect to the Warringah Council operations.
[10] In brief, the TWU has submitted that URM is breaching the good faith bargaining requirements of the Act by failing to properly participate in negotiations for an enterprise agreement. In summary, URM has submitted that it is entitled to take a hard or inflexible position in relation to bargaining and that to adopt an inflexible stance did not equate to a failure to bargain in good faith.
[11] Section 228 of the Act sets out the good faith bargaining requirements and reads 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.”
[12] The history of the communications between the parties to date has revealed that at different times the conduct of both parties could be criticised as being unlikely to assist the prospects for successfully concluding an enterprise agreement. There is no purpose served by revisiting the undesirable aspects of the conduct of the parties in the past. Instead, it is important to recognise that the parties have not met nor even exchanged formal communication in respect of the draft agreement provided by the TWU to URM on about 17 July 2010 (Exhibit 3).
[13] Consequently, as part of FWA's role to facilitate enterprise level bargaining it would appear necessary in the circumstances to make Orders requiring the parties to participate in negotiations in respect to the proposed enterprise agreement, Exhibit 3. Simply, nothing by way of negotiation has yet occurred in respect to that document.
[14] The TWU has complained about the approach adopted by URM in respect to previous communications which asserted that an earlier version of the draft agreement did not pass the better off overall test. The evidence provided by Mr Venn during the proceedings confirmed a fundamental misunderstanding of the application of the better off overall test particularly in the context of a response provided as part of communications that precede a formal negotiation process. It is therefore necessary to emphasise the provisions of paragraph (d)ofsubsection 228 (1) of the Act in order to ensure that future negotiations involve a level of reasoned particularisation to support whatever position may be adopted.
[15] There was disagreement between the parties about the particular form that any Orders might take. Specifically, URM opposed that part of the draft Orders proposed by the TWU which required the parties to meet until agreement was reached or until further Order of FWA. URM relied upon subsection 228 (2) (d) and s.255 of the Act as basis to reject any form of Orders that contemplated an unspecified timeframe for meetings to be held until agreement was reached. According to URM, an Order that contained such an unspecified timeframe would imply a requirement that agreement must be reached.
[16] There is considerable persuasive force to the position advanced by URM in respect to the particular form of Orders that should be made. Various provisions contained throughout the Act remove or severely limit the prospects for FWA to have an arbitration role in respect to enterprise bargaining and more generally. It would seem that the concept of FWA requiring parties to meet until agreement was reached would introduce a degree of compulsion for agreement making that is not envisaged by the Act. In any event, it would be open to a party to make further application to, in effect, refresh the bargaining Orders or seek assistance via section 240 of the Act.
[17] In summary, the application for bargaining Orders has been made in accordance with section 229 of the Act. In particular the timing of the application has satisfied the provisions of subsection 229 (3) of the Act. Further, the prerequisites for making an application as specified by subsection 229 (4) of the Act, have been met. In particular, the written notice required by subsection 229 (4) (b) was provided by the TWU in correspondence dated 17 June 2010 to URM.
[18] I have considered the submissions and evidence provided by the Parties and I am satisfied that the requirements of s. 230 of the Act have been met. In particular I am satisfied that it is reasonable in all the circumstances to make bargaining Orders. However the bargaining Orders have not been made in precisely the terms sought by the TWU, nor in the form of the alternative Orders proposed by URM. The Orders are issued separately [PR503878] and operate in accordance with section 232 of the Act.
COMMISSIONER
Appearances:
Mr. O. Fagir (Solicitor, TWU) for the Applicant.
Mr. R. Marshall (Solicitor, FCB) for the Respondent.
Hearing:
Sydney, Thursday 11 November 2010.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR503877>
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