United Voice

[2017] FWC 1527

[2017] FWC 1527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

United Voice
(B2017/198)

Australian Nursing and Midwifery Federation

(B2017/200)

COMMISSIONER PLATT ADELAIDE, 16 MARCH 2017

Application for a bargaining order – previously agreed clause removed – disclosure of relevant information in a timely manner – capricious and unfair conduct – bargaining order issued.

[1] On 7 March 2017, United Voice (UV) made an application under s.229 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) seeking bargaining orders in relation to bargaining with Aged Care Services Australia Group Pty Ltd (ACSAG). On the same day, the Australian Nursing and Midwifery Federation (ANMF) made an application under s.229 of the Act and requested that the matter be heard together with the application of United Voice (collectively the Unions). ACSAG appointed Mr Brian Cook (Managing Director) of SIAG as its bargaining representative.

[2] UV was represented by Mr Simon Blewett, the ANMF was represented by Mr Rogan McMahon and ACSAG by Mr Jack Tracey (of counsel) with permission by virtue of s.596(2)(a),(c) of the Act.

[3] I have joined the two applications.

[4] The Unions sought an interim order terminating the ballot, declaring any vote cast to be null and void, and prior to the ballot recommencing an order requiring ACSAG to meet with the Unions to bargain about the changes made to the draft enterprise agreement.

[5] Given the ballot was to open 9:00am Wednesday 8 March 2017, the matters were called on for urgent hearing via telephone at 4:00pm on Tuesday 7 March 2017. At the conclusion of the hearing, I declined to issue interim orders as:

• whilst the written material indicated that an agreed clause in the enterprise agreement had been removed, the competing factual positions of UV, ANMF and ACSAG were unable to be evaluated, and as a result I was unable to determine if the requirements of s.228 of the Act had been breached; and



• whilst the ballot was to commence on 8 March 2017, the Commission was in a position to determine the substantive application prior to the conclusion of the ballot which was relevant to my discretion under s.230(1)(c) of the Act.

[6] The substantive matter was listed for hearing on Friday 10 March 2017. Directions were issued for the preparation of witness statements, a statement of agreed facts and an outline of submissions. At the conclusion of the hearing I issued a bargaining order, and advised that my detailed reasons for that decision would follow. The reasons for my decision follow;

The capacity to bring the application

[7] Section 229 of the Act provides as follows:

“229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1)  A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order ) under section 230 in relation to the agreement.

Note:          See also section 255A (limitations relating to greenfields agreements).
Multi-enterprise agreements

(2)  An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

Timing of applications

(3)  The application may only be made at whichever of the following times applies:

(a)  if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i)  not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii)  after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b)  otherwise--at any time.

Note:          An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(4)  The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a)  has concerns that:

(i)  one or more of the 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)  has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c)  has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d)  considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

(5)  The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.”

[8] There is no dispute between the parties that the requirements of s.229 of the Act have been met by UV and the ANMF.

Agreed facts

[9] The parties provided the following agreed statement of facts;

1. In July 2016, ACSAG agreed to commence bargaining for a proposed enterprise agreement.

2. On 11 June 2017,[sic] ACSAG agreed to bargain with the ANMF as a bargaining representative for the employees.

3. On or about 27 July 2016, ACSAG agreed to bargain with United Voice, as bargaining representatives for the employees.

4. On 2 September 2016, United Voice provided a log of claims and comments on a proposed draft agreement to ACSAG and the ANMF. Included in the log of claims was a claim that no employee was to suffer a loss of pay or conditions arising from the making of the proposed agreement. Included in the comments on the proposed draft agreement was a comment to the effect that the proposed deletion of a savings clause was opposed.

5. On 15 September 2016, the ANMF provided its log of claims to ACSAG and United Voice.

6. On 19 October 2016, the bargaining representatives conducted their first negotiating meeting. At that meeting, the concept of a savings clause was discussed. The union bargaining representatives pressed for its insertion; ACSAG indicated it did not agree to the insertion.

7. On 30 November 2016, the bargaining representatives met again. Prior to 30 November 2016 ACSAG proposed the following clause:

“The Agreement prescribes comprehensive arrangements in regard to minimum terms and conditions of employment for employees covered by the Agreement. The intent of the Agreement is to provide arrangements where covered employees are better off if the Agreement applies to their employment than if a relevant Modern Award applies to their employment.”

At the meeting, the union bargaining representatives advised that the proposed wording was not acceptable. ACSAG advised that it would consider its position.

8. On 5 January 2017, ACSAG wrote to United Voice and the ANMF advising that it agreed to include a savings clause in the proposed agreement, and proposed revised wording of the savings clause. The proposed wording was as follows:

“No Employee employed prior to the approval of this Enterprise Agreement by the Fair Work Commission (2.3.1 refers) shall suffer any loss or diminution of wages or entitlements (whether accrued or otherwise) or terms and conditions of employment in place immediately prior to the commencement of this Agreement by reason only of the coming into force of this Agreement.”

9. On 24 January 2017, the bargaining representatives met again. At the meeting, the union bargaining representatives advised that they agreed with the wording of the savings clause as proposed by ACSAG.

10. By the end of the meeting on 24 January 2017, the bargaining representatives agreed that the union bargaining representatives would identify their outstanding concerns in writing, and that ACSAG would then respond. The parties anticipated that those outstanding matters could be resolved without a further meeting. They therefore anticipated that the agreement might then proceed to a ballot of employees.

11. On 27 January 2017, ACSAG emailed United Voice and the ANMF which email set out a timetable for the employee bargaining representatives to provide their final responses on all matters by close of business on 13 February 2017 and ACSAG would respond to all final matters raised by each union and provide a final agreement and a proposed ballot timetable by no later than close of business on 24 February 2017.

12. On 14 February 2017, United Voice sent an email to ACSAG identifying its outstanding concerns and its proposals for those concerns to be addressed.

13. On 14 February 2017, the ANMF wrote to ACSAG, identifying outstanding concerns and matters and proposing amendments to the draft agreement. It identified that its feedback was “non-exhaustive and we look forward to discussing this material and any outstanding matters when we next meet.”

14. On 22 February 2017, ACSAG sent an email to United Voice responding to United Voice’s concerns. The response identified how ACSAG had responded to each of those concerns. The response made no reference to any issue relating to the savings clause.

15. On 23 February 2017, the ANMF confirmed receipt and noted that the material would be reviewed in due course.

16. ACSAG’s response attached a draft agreement, with tracked changes. As a matter of fact, the draft agreement did not contain the savings clause. However, the removal of the savings clause was not reflected in any tracked change discernible in the draft agreement.

17. On 24 February 2017, ACSAG sent an email to United Voice enclosing that which it regarded as the final draft agreement. It did not contain any tracked changes. ACSAG did not identify that the savings clause had been removed.

18. On 27 February 2017, United Voice identified that the savings clause had been removed. It notified ACSAG of that fact and requested that the savings clause be reinserted.

19. On 27 February 2017, ACSAG responded to United Voice’s request. It advised that it “would be inappropriate” to proceed with the inclusion of the savings clause.

20. On 28 February 2017, United Voice contacted ACSAG to request that it meet to discuss the removal of the savings clause.

21. Also on 28 February 2017, United Voice sent an email to ACSAG and the ANMF. It advised of its concern that the removal of the savings clause so close to the ballot process constituted a breach of ACSAG’s good faith bargaining requirements. It requested that the ballot process not proceed until the parties could meet to discuss the matter further.

22. On 28 February 2017, the ANMF sent an email to ACSAG and United Voice, confirming that the material had yet to be discussed. The ANMF also sought an undertaking that the ballot would not commence until such a time as it had the opportunity to put the new material to members.

23. Also on 28 February 2017, the ANMF also sent an email to ACSAG. It advised of its concern that the removal of the savings clause so close to the ballot process and that the material had not been provided to other parties constituted a breach of ACSAG’s good faith bargaining requirements. It requested that the ballot process not proceed, that copies of all material be provided, and that reasonable time be afforded so that the ANMF could review the material and put the content to its membership.

24. On 28 February 2017, the access period for the approval of the proposed agreement commenced.

25. On 2 March 2017, ACSAG wrote to United Voice. In that letter it advised that ACSAG had complied with its good faith bargaining obligations, that it did not propose to reinsert the savings clause, and that it did not intend to change the ballot timetable.

26. On 2 March 2017, ACSAG wrote to the ANMF. In that letter it advised that ACSAG had complied with its good faith bargaining obligations, that it did not propose to reinsert the savings clause, and that it did not intend to change the ballot timetable.

27. On 8 March 2017, the ballot process for the approval of the proposed agreement commenced. It is due to end on 14 March 2017.

28. On 7 March 2017, United Voice made the within application.

29. On 7 March 2017, the ANMF made the within application.

[10] I now turn to the allegation that ACSAG has not met the good faith bargaining requirements.

[11] UV contends 1 that the inclusion of a savings clause in the enterprise agreement was strongly contested and that on 5 January 2017, ACSAG proposed a savings clause which was accepted by UV on 24 January 2017. ACSAG subsequently removed the savings clause. UV states it was not advised of this change to ACSAG’s position and that the final draft of the enterprise agreement provided by ACSAG did not highlight the removal of the savings provision nor did any correspondence between ACSAG and UV. UV notes that the ANMF was informed of the removal of the savings clause on 22 February 2017 but this information was not provided to UV.

[12] UV further contend that when it identified the removal of the savings clause, ACSAG refused to genuinely discuss its removal and proceeded to immediately commence the access period and with a ballot scheduled immediately thereafter, without UV having any opportunity to consult with its members and negotiate with ACSAG about the removal of the clause.

[13] The ANMF supported the position advanced by UV and further contends 2 that ACSAG failed to disclose relevant information in communicating with UV on 22 and 27 February and 2 March 2017, by not copying such communications to the ANMF.

Witness Evidence

[14] Ms Franchesca Patient, who is employed by UV as an Enterprise Bargaining Industrial Officer, submitted a statement (including attachments) 3 and gave evidence. Ms Patient’s evidence is summarised as follows;

• Since 19 July 2016, Ms Patient has been involved in negotiations between UV and ACSAG for an enterprise agreement which would cover five aged care centres operated by ACSAG.



• A number of meetings were conducted with Mr Ashley Van Winkel (ACSAG) and Mr Brian Cook (ACSAG representative) between July and September 2016.



• A log of claims was provided to ACSAG by UV on 2 September 2016, one of the claims was for a savings clause to ensure no reduction in current terms and conditions.



• There was some debate between ACSAG and UV over the need for the clause.



• On 19 October 2016, Mr Cook on behalf of ASCAG advised UV that if it felt strongly about the savings clause it could be included.



• Negotiations about the savings clause continued until 5 January 2017, when ACSAG proposed the wording of a savings clause to be included in the enterprise agreement.



• On 24 January 2017, UV and ANMF advised they would accept the savings clause proposed on 5 January 2017.



• There were a few outstanding issues which UV advised it would set out in writing to ACSAG.



• On 27 January 2017, Mr Cook on behalf of ACSAG advised a timetable where ACSAG would respond to all matters and propose a ballot timetable.



• On 14 February 2017, UV provided the written information regarding its outstanding issues.



• On 22 February 2017, Mr Cook wrote to UV 4 and advised of ACSAG’s positions on the outstanding issues and attached a final draft of the enterprise agreement in mark-up form dated 22 February 2017.5 Neither the letter nor the final draft enterprise agreement expressly identified the removal of the savings clause.



• On 27 February 2017, UV identified that the savings clause had been removed. Ms Patient contacted ACSAG with UV’s concerns.



• On 28 March 2017, Ms Patient rang Mr Van Winkel who thought the parties should meet and sort this out. No meeting occurred.



• The access period commenced on 28 February 2017. Between 28 February 2017 and 6 March 2017 UV sought to meet with ACSAG to discuss the matter without success.



• On 7 March 2017, this application was made.



• Ms Patient rejected the position put by Ms Cook that ACSAG informed UV of the removal of the savings clause. She contends that without a careful review of the draft proposed enterprise agreement UV would not have been aware that the savings clause had been removed.

[15] Ms Sascha Cook, Principal Advisor employed by SIAG, submitted a statement (including attachments) 6 and gave evidence. Ms Cook’s evidence is summarised as follows;

• SIAG was the bargaining representative for ACSAG. 7



• Mr Brian Cook had primary carriage of the matter with support from Ms Cook as required, and whilst Ms Cook had not attended the meetings she was involved in the background drafting communications and the proposed enterprise agreement, and taking instructions from ACSAG.



• Negotiations commenced in July 2016.



• The issue of the savings clause was contested.



• On 5 January 2017, SIAG provided a revised draft of the enterprise agreement containing a savings clause. 8



• At a meeting conducted on 24 January 2017, she was advised that UV and ANMF agreed with the proposed savings clause.



• On 14 February 2017, SIAG emailed UV and the ANMF seeking details of any outstanding matters. 9



• After considering the positions advanced by UV and the ANMF, ACSAG circulated a final draft of the marked-up enterprise agreement on 22 February 2017. 10 The savings clause had been removed after Ms Cook advised ACSAG that such a provision would result in the enterprise agreement not being a single source of terms and conditions of employment. Separate communications were made to UV and ANMF.11



• Ms Cook asserted that by sending a copy of the enterprise agreement UV should have been aware of the change to the savings clause. The letter to the ANMF letter highlighted the change.



• SIAG communicated with the parties separately as each had a different log of claims.



• Ms Cook was aware of UV and ANMF’s opposition to the removal of the savings clause on 27 January 2017. In light of the negotiation history, Ms Cook did not believe that any further meeting to discuss the savings clause would resolve the issue. She believed that an impasse had been reached and that ACSAG should proceed to a ballot.

[16] I accept the evidence of each witness noting that each to a varying degree sought to advocate their position at times. Whilst each witness had a different opinion on how the facts should be interpreted (e.g. if the change was sufficiently identified or whether an impasse existed) these issue are more legal in nature rather than factual. No issue of credit arises.

Statutory context

[17] For completeness and to provide statutory context, I set out the objects in s.171 of the Act:

“171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.”

[18] The good faith bargaining requirements are 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.

Note:          See also section 255A (limitations relating to greenfields agreements).

(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.”

[19] The Explanatory Memorandum to the Fair Work Bill 2008 (EM) provides assistance regarding the role of the Commission in facilitating bargaining. At paragraph 946 it states:

“946. It is anticipated that most bargaining representatives will bargain voluntarily and cooperatively without the need for assistance or intervention from FWA. In the occasional cases where this is not occurring, the Bill provides mechanisms for FWA to facilitate bargaining and, where necessary, make orders to ensure the integrity of the bargaining process.”

[20] The word “integrity” conveys the notion of “honesty” and “uprightness”. In the context of enterprise bargaining, it is about the parties bargaining without the process being impaired or corrupted by statements or representations which are untrue and which unfairly affect collective bargaining; it is in these circumstances that orders must and should be made.

[21] The EM also expands on the meaning of “capricious or unfair conduct” as follows:

“951. The good faith bargaining requirements are generally self-explanatory. The last requirement, 'refraining from capricious or unfair conduct...' is intended to cover a broad range of conduct. For example, conduct may be capricious or unfair conduct if an employer:

• fails to recognise a bargaining representative;



• does not permit an employee who is a bargaining representative to attend meetings or discuss matters relating to the terms of the proposed agreement with fellow employees;



• dismisses or engages in detrimental conduct towards an employee because the employee is a bargaining representative or is participating in bargaining; or



• prevents an employee from appointing his or her own representative.”

[22] Section 230 of the Act provides the requirements for a bargaining order to be made as detailed below:

“230 Bargaining orders

(1)  The FWC 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)  the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Note:          See also section 255A (limitations relating to greenfields agreements).

Agreement to bargain or certain instruments in operation

(2)  The FWC 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)  The FWC 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).”

Consideration

[23] The Union’s contend that ACSAG’s conduct breached s.228(1)(b) and (e) of the Act. ANMF also contend that s.228(1)(a) of the Act was breached.

[24] In considering whether I am satisfied that ACSAG have not met the good faith bargaining requirements of the Act, I have taken guidance from the general principles from other decisions of the Commission and have considered with caution the decisions put to me by the parties where there is alleged similar conduct as that in the present matter. I have adopted this approach to the case law on the basis that the requirements of s.228 of the Act must be applied to the particular circumstances of each case. This is consistent with the Full Bench decision in CFMEU v Tahmoor Coal Pty Ltd, 12 where the Full Bench stated:

“[24] Whether a party observes or fails to observe the good faith bargaining requirements set out in s.288(1) [sic] is to be determined in light of all of the relevant circumstances. While at one level this is stating the obvious, it is appropriate in view of the submissions in the appeal to indicate that the question will rarely be decided by reference to one action or series of actions. Equally it would be undesirable to read into the legislation concepts which do not already appear in it for the purpose of explaining its operation. That approach is likely to lead to error in the construction and application of the provisions.”

[25] Whilst referring to the Full Bench decision, all parties drew my attention to the following paragraph:

“[30] We deal now with the ballot of employees. Although there may be circumstances in which the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements, it will not always be so. There is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot. In this case the Commissioner and the parties all referred to the notion of “impasse” as the touchstone by which to judge whether an employer who puts a proposed agreement to a ballot without the agreement of the other bargaining agent thereby fails to observe the good faith bargaining requirements. There was some debate about whether “impasse” had been reached at the relevant time. The Commissioner found that “negotiations for an enterprise agreement have reached a stalemate, or using Tahmoor’s words: “an impasse”. Another way of approaching the matter, as the CFMEU intimated in its submissions, might be to ask whether there had been a reasonable opportunity to discuss Tahmoor’s latest proposal. Yet another formulation might be to ask whether negotiations had reached such a stage that the employer was entitled to put its proposal to a ballot in order to see if progress could be made. However it is put, we are satisfied that in arranging to put its proposed agreement to the employees in a ballot, Tahmoor was not acting capriciously or unfairly in the circumstances prevailing at the time.” (citations omitted)

[26] The Unions also contended that the facts in National Union of Workers v Ross Cosmetics Australia Pty Ltd, 13 AMWU v Coates Hire Operations Pty Limited T/A Coates Hire Limited (the Coates Hire decision)14 and AMWU and AMIEU v Ridders Fresh Pty Ltd T/A Tibaldi Smallgoods15 are analogous to the present matter. In these decisions, it was found that conduct that prevented other bargaining representatives from obtaining instructions from members, considering compromise, or otherwise having any opportunity to negotiate about a matter was capricious or unfair conduct.

[27] The Unions also referred to the Coates Hire decision in support of the proposition that it was unlikely that a party which imposed a new term at the end of bargaining in circumstances, where there was neither willingness nor any real opportunity to negotiate about that term, could be said to be acting consistent with the good faith bargaining requirements.

[28] The ANMF also referred me to National Union of Workers v Defries Industries Pty Ltd (the Defries decision), 16 to support the proposition that employers refusal to meet with the bargaining representatives amounted to a failure to participate in meetings at reasonable times pursuant to 228(1)(a) of the Act.

[29] In AMIEU v Woolworths Limited, 17 the Commission held that it cannot be read into s.228 of the Act a requirement that bargaining representatives in complex bargaining environments (concerning three or more bargaining representatives) must meet together and that what may be important is the wider field of evidence as to whether or not a bargaining representative is meeting the good faith requirements. The ANMF contended that the provision of separate (and differing) communications to each Union by ASCAG fell foul of this requirement. ACSAG contended that the bargaining representatives had not identified that they were bargaining in a composite manner or in concert, and that communications differed as the log of claims of each Union were not the same.

[30] ACSAG also relied on the following extract from CFMEU v Shingawa Refractories Australasia Pty Ltd [2011] FWA 8304:

“[25] … [good faith bargaining requirements] do not impose an obligation on a party to take a particular approach to negotiations or prescribe the use of tactics. There is no prescription against say, the withdrawal by one party of previously agreed terms and conditions”

[31] Whilst I take guidance from these decisions as to the general principles of the law, I reiterate that although it may be the case that certain conduct breaches a good faith requirement in one matter, the circumstances when taken as a whole in another may not. 18

[32] Having set out the relevant authorities submitted by the parties, I now turn to the circumstances of the present matter and my findings.

Findings

[33] On the information before me, ACSAG has at the last minute in the negotiation process changed its position by withdrawing prior agreement to a key clause in the proposed enterprise agreement, failed to expressly advise UV of change of position and subsequently refused to meet and discuss the changed position.

[34] The manner in which ACSAG’s representative, SIAG, withdrew the agreed clause was not open or transparent as far as UV was concerned. In respect of the ANMF, a separate communication averted the ANMF to the deletion of a clause which was not revealed by reading the final draft proposed enterprise agreement. I find that SIAG’s conduct in this regard represents a failure by ACSAG to disclose relevant information to UV as required by s.228(1)(b) of the Act; that is, that an agreed clause had been unilaterally withdrawn.

[35] Whilst there is no evidence that the removal of an important, agreed clause at such a late stage, by stealth in the case of UV, was a deliberate tactic by ACSAG, it borders on capricious, and is certainly unfair conduct that undermines collective bargaining in breach of s.228(1)(e) of the Act.

[36] ACSAG explains its conduct by suggesting that an impasse had been reached and the good faith bargaining requirements were not breached by proceeding to the ballot. The Unions contend that an impasse had not been reached and that ACSAG’s decision to commence the access period and proceed immediately thereafter to the ballot, prevented any opportunity to seek member feedback or discuss ACSAG’s changes.

[37] I note that it may not be a breach of the good faith bargaining requirement for an employer to decide when a bargaining impasse has been reached and then to put a proposed enterprise agreement to a ballot. 19 However, I cannot reach the same conclusion in the present matter. Ms Cook was aware that the Unions wished to further discuss and/or meet about savings clause and, whilst there is no requirement for all matters to be agreed before a ballot,20 in this case ACSAG was not entitled to presume that an impasse had been reached and that an alternative position was not possible.

[38] I find that ASAG’s change of position on a clause which fundamentally protected each employee covered by the agreement, the failure to expressly alert UV to the change, together with the subsequent refusal to engaged in dialog with the Unions about the change prior to the impending ballot, when considered as a whole, undermined the good faith bargaining requirements provided in s.228(1)(a),(b) and (e) of the Act.

[39] I now turn to the requirements of s.230 of the Act in respect to making a bargaining order.

[40] I am satisfied that ASCAG have agreed to bargain.

[41] I am satisfied that the ASCAG’s bargaining representative has not met the good faith bargaining requirements.

[42] I am satisfied that the UV and ANMF have met the requirements of s.229(4) of the Act.

[43] Having given regard to my findings in relation to the conduct of ACSAG during the negotiations and its failure to observe good faith bargaining requirements and the serious impact of the breaches on the bargaining process, I am satisfied that it is reasonable in the circumstances, to make a bargaining order.

Conclusion

[44] The Order 21 issued, has the effect of delaying the ballot process to enable the good faith bargaining requirements to be met.

COMMISSIONER

Appearances:

S.Blewett on behalf of United Voice.

R.McMahon on behalf of the Australian Nursing and Midwifery Federation.

J.Tracey of counsel on behalf of Aged Care Services Australia Group Pty Ltd.

Hearing details:

2017.

Adelaide:

March 7&10.

 1   Exhibit UV1

 2   Exhibit ANMF1

 3   Exhibit UV2

 4   Exhibit UV2, Attachment FP15

 5   Exhibit UV2, Attachment FP16

 6   Exhibit ACSAG 2

 7   Exhibit ASCAG 2, Attachment SC-2

 8   Exhibit ASCAG 2, Attachment SC-16

 9   Exhibit ASCAG 2, Attachment SC-18, SC-19

 10   Exhibit ASCAG 2, Attachment SC-22

 11   Exhibit ASAG 2, Attachment SC-22, Attachment SC-23

 12   [2010] FWAFB 3510

 13   [2012] FWA 3252

 14   [2012] FWA 3357

 15   [2013] FWC 1250

 16   [2009] FWA 88

 17   [2009] FWA 849, [139]

 18   CFMEU v Tahmoor Coal Pty Ltd

 19   National Union of Workers v Ross Cosmetics Australia[2012] FWA 3252

 20   CFMEU v Tahmoor Coal Pty Ltd[2010] FWAFB 3510

 21   PR590543

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