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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading United Voice

Details

AGLC: United Voice [2017] FWC 1527
Case: [2017] FWC 1527
Decision Date: 16 MARCH 2017

CaseChat Overview and Summary

In the case of United Voice, the applicant sought a bargaining order against the respondent after a previously agreed clause was removed from an enterprise agreement. The application was heard by the Fair Work Commission. The central issue before the Commission was whether the removal of the clause by the respondent constituted capricious and unfair conduct, thereby warranting a bargaining order under the Fair Work Act. Additionally, the court needed to determine whether the applicant had provided the necessary information to the respondent in a timely manner to facilitate proper bargaining.

The Commission found that the removal of the clause by the respondent was indeed capricious and unfair, as it occurred without justification and undermined the spirit of cooperative bargaining. The applicant had consistently provided information relevant to the agreement, but the respondent had failed to engage in meaningful negotiation. The Commission emphasised the importance of timely disclosure of relevant information to foster effective bargaining. Given the respondent's conduct, the Commission concluded that issuing a bargaining order was necessary to ensure fair and meaningful negotiations between the parties.

Based on its findings, the Commission issued a bargaining order, mandating the parties to engage in good faith negotiations to reach a new agreement. The order specified the timeframes and processes for these negotiations, ensuring that both parties were aware of their obligations. The Commission underscored the importance of cooperative bargaining and the need for both parties to act in good faith to achieve a fair outcome.

The Commission's final orders mandated the parties to commence negotiations within a specified period and to continue in good faith until a new enterprise agreement was reached. The order also provided for the possibility of further applications if either party failed to comply with the bargaining requirements.

Orders