United Voice v DuluxGroup (Australia) Pty Ltd
[2018] FWC 5830
•21 SEPTEMBER 2018
| [2018] FWC 5830 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.229—Bargaining order
United Voice
v
DuluxGroup (Australia) Pty Ltd
(B2018/803)DEPUTY PRESIDENT MASSON | MELBOURNE, 21 SEPTEMBER 2018 |
Application for a bargaining order - alleged failure to meet good faith bargaining requirements – alleged capricious or unfair conduct that undermines freedom of association and collective bargaining – conduct does not breach good faith bargaining requirements – application for bargaining order dismissed.
Introduction
[1] An application was made by United Voice on Thursday, 6 September 2018 to the Fair Work Commission (the Commission) pursuant to s 229 of the Fair Work Act 2009 (the Act) seeking bargaining orders in relation to bargaining with DuluxGroup (Australia) Pty Ltd (Dulux) for a new enterprise agreement in respect of Dulux’s Dandenong South operations.
[2] The order sought by United Voice is that, the agreement ballot being conducted to approve the agreement be set aside so that further negotiations may occur; Dulux be prevented from conducting a ballot for a further 28 days from the date of the order; and that at least two further bargaining meetings be held prior to such further ballot.
[3] The matter was listed for hearing before me at 15.00 on Wednesday, 12 September 2018. United Voice were represented by its Industrial Director, Mr Daniel Robson, while Dulux was represented by Ms C Brain. Evidence was given by Mr Robson on behalf of United Voice while evidence for Dulux was given by Mr Andrew Holmes who is the Operations Manager for Dulux’s Dandenong South operations.
[4] On the evening of 12 September 2018, after considering the evidence and submissions of the parties, I decided not to issue the orders sought by United Voice and dismissed the application. I indicated to the parties that I would provide written reasons for my decision in due course. This decision sets out those reasons.
Background and evidence
[5] It is useful to set out the background and evidentiary matters that are relevant.
[6] There are approximately 24 paint production operators 1 currently employed by Dulux who are covered by the Dulux Dandenong South Operations Enterprise Agreement 2015-2018 (the Current Agreement).2 The Current Agreement reached its nominal expiry date on 30 April 2018.
[7] On 12 February 2018, Dulux issued employees with Notice of Employee Representational Rights in accordance with the Act. United Voice is the bargaining representative for employees.
[8] On 15 February 2018, the first bargaining meeting was conducted at which United Voice presented a log of claims on behalf of employees. That log included a claim for a 3.75% per annum wage increase with an agreement term of three years, although United Voice indicated flexibility on the agreement term. Dulux advised of its desire to conclude negotiations for a new agreement prior to the nominal expiry date of the Current Agreement given Dulux’s “strict no back-pay bargaining protocol”. 3
[9] A series of further bargaining meetings were then conducted on 1 March, 8 March, 15 March, 22 March, 29 March and 12 April 2018. During these meetings, competing wage positions were put by the parties with Dulux offering 2% per annum while United Voice maintained their position of 3.75% per annum. No agreement was reached on wage increases during these meetings. 4
[10] On 18 April 2018, at the eighth bargaining meeting, Dulux put a revised position of 2.25% per annum for a four year agreement term and advised United Voice of its intention to put the proposed agreement to a ballot. In response, United Voice requested a meeting with employees on 19 April 2018 to discuss the proposed agreement, such request being approved by Dulux. 5
[11] On 19 April 2018, a further bargaining meeting was conducted during which Dulux advised that it intended to open the access period for a ballot on 23 April 2018 with the formal ballot to be conducted on 1 May 2018. Dulux confirmed its intention to proceed to a ballot and provided copies of the agreement and a summary of changes to United Voice in correspondence dated 20 April 2018. 6 The ballot was unsuccessful with three employees supporting the agreement and 21 voting against it.
[12] On 2 May 2018, United Voice filed a s 240 application with the Commission seeking assistance with bargaining. Two issues of concern to United Voice were that of the proposed wage increase and the allocated day off clause. 7
[13] Further bargaining meetings were then conducted on 10 May 2018 and 17 May 2018. The competing and unresolved wage increase positions of 2.25% per annum held by Dulux and 3.75% held by United Voice remained. A compromise position of 9.25% over three years was put forward by United Voice during the meeting of 17 May 2018, although the proposal did not have the mandate of employees at that point. 8
[14] On 4 June 2018, the parties attended a conciliation conference convened before the Commission in response to United Voice’s s 240 application. While the issue of allocated days off was resolved between the parties during the conciliation conference, the outstanding issue of the wage increase was not. The parties were encouraged to continue negotiations and discussions with respect to the wage increase issue. 9
[15] Further bargaining meetings were then conducted on 8 and 19 June 2018, during which a proposal was put forward by United Voice to remove the proposed Level 4 competency from the Agreement and pass that benefit on through higher overall wage increases to the remaining classifications. Dulux rejected that proposal and reaffirmed that it was unable to move on its offer of 2.25% per annum over four years. Dulux raised the prospect of conducting another ballot following the amendment to the allocated day off clause. 10
[16] Subsequent to the bargaining meeting on 19 June 2018, Dulux notified United Voice via email of its intention to open the access period and conduct a further ballot on 28 June 2018. United Voice requested, and with Dulux’s approval, subsequently met with employees on 26 June 2018 regarding the agreement. 11 The agreement put to the ballot contained the revised allocated day-off clause and provided for a 2.25% per annum wage increases over a four year term. The ballot for the agreement was unsuccessful with nine employees voting in support of the agreement and 14 employees voting against it. One vote was declared invalid.12
[17] On 12 and 20 July 2018, further bargaining meetings were conducted, during which the option of enabling the passing on of higher overall wage increases via removal of the Level 4 competency and inclusion of a daily lab back-up allowance was raised by United Voice and rejected by Dulux. While maintaining its wages position of 2.25% per annum, Dulux did propose shortening the term of the agreement to three years and nice months. That position was rejected by United Voice. Dulux also advised United Voice that it was considering taking the agreement to a further ballot. 13
[18] Following the bargaining meeting on 20 July 2018, United Voice advised Dulux via email of its request for further conciliation before the Commission pursuant to its s 240 application.
[19] On 30 July 2018, Dulux notified United Voice via email of its intention to open the access period and conduct a further ballot of employees on 8 August 2018. 14 United Voice requested and was subsequently granted approval to meet with employees on 3 August 2018 regarding the agreement. The ballot conducted on 8 August 2018 was unsuccessful with a tied vote of 12:12.15
[20] On 17 August 2018, the parties conducted a further bargaining meeting during which United Voice maintained its claim for the removal of the proposed Level 4 competency and proposed a 9.25 % wage increase over a two year nine month agreement term. 16 That position was not agreed to by Dulux.
[21] On 27 August 2018, the parties attended a further conciliation conference before the Commission. The conference failed to resolve the impasse over wages with Dulux holding to its most recent offer of 2.25% each year over a three year nine month term, while United Voice maintained their claim of 9.25% over a three year term.
[22] The parties gave evidence of conflicting outcomes and expectations arising from the conference before the Commission. Dulux stated that it was recommended that the Level 4 competency remain in the agreement and that both parties consider and continue discussing wage increases and agreement term. 17 United Voice gave evidence that it was the union’s understanding that Dulux was going to go away and “look at some numbers”18which gave them an expectation that Dulux would revert with a revised position. Mr Robson conceded during his oral evidence that United Voice’s expectations were based on United Voice’s private discussions held with the Commissioner and he did not know what was said to Dulux representatives by the Commissioner in private.
[23] On 3 September 2018, the parties met for what was their seventeenth bargaining meeting. United Voice sought and was granted approval to meet with employees immediately prior to the bargaining meeting. The parties were unable to reach agreement during the bargaining meeting on the outstanding issue of the wage increase and agreement term. Both parties gave evidence that they attended the meeting with an expectation that the other party would provide feedback or alternate proposals. 19
[24] Minutes of the 3 September 2018 bargaining meeting recorded United Voice expressing a willingness to consider alternate wage and agreement term proposals, however, neither party ultimately put forward any alternate proposals during the meeting. Dulux restated its position of three years nine months with 2.25% each year and speculated that rather than adjust its wage offer to get an agreement as United Voice sought, it (Dulux) could hold a further ballot. At the conclusion of the meeting, United Voice indicated that it would seek a meeting with its members to get further instructions. 20
[25] On 4 September 2018, Dulux advised the onsite delegate, and subsequently United Voice, via email that after having considered feedback from United Voice during the bargaining meeting of 3 September 2018, Dulux had decided to take the agreement to a further ballot to be conducted on 13 September 2018. Dulux provided United Voice with the relevant agreement documentation in that email. 21
[26] Following receipt of Dulux’ advice to it regarding the conduct of a further ballot, United Voice immediately wrote to Dulux via email on 4 September 2018 and raised concerns regarding Dulux’s conduct and its belief that the conduct may be in breach of good faith bargaining obligations. United Voice requested that the access period be halted and that further bargaining meetings be conducted to allow it (United Voice) to seek alternate instructions from its members and present those to Dulux. United Voice formalised its request to meet with employees on 11 or 14 September 2018 to seek instructions on an alternative proposal in its email on 4 September 2018. 22
[27] What then followed was an exchange of email correspondence between Dulux and United Voice on 5 and 6 September 2018 in which Dulux rejected United Voice’s assertions regarding its conduct in proceeding to a further ballot breaching good faith bargaining obligations and reaffirmed its intention to proceed with the ballot. Dulux confirmed its agreement to United Voice’s request for a meeting with employees to be held on 11 or 14 September 2018 and also agreed to a further bargaining meeting on 20 September 2018 in the event the agreement ballot was unsuccessful. 23
[28] On 5 September 2018, Dulux notified employees of the commencement of the access period and also provided details of the ballot, copies of the agreement and a summary of changes to employees. The proposed agreement provided for a three year nine month term with 2.25% wage increases each year. 24
[29] United Voice did not regard Dulux’s responses as addressing the concerns raised with them in email correspondence of 4, 5 & 6 September 2018. United Voice then made its application for bargaining orders under s 229 of the Act on 6 September 2018.
Case for United Voice
[30] United Voice contend that the statutory pre-requisites for the making of an order in the terms sought by them are met. Specifically, that:
(i) United Voice has made an application as a bargaining representative (s 229(1));
(ii) Dulux have agreed to bargain (s 230(2)(a));
(iii) An enterprise agreement applies to employees who will be covered by the proposed agreement (s 229(3)(a));
(iv) United Voice hold and set out their concerns in writing to Dulux regarding their conduct being in breach of good faith bargaining requirements (s 229(4)(a));
(v) United Voice provided Dulux with a reasonable time within which to respond to those concerns (s 229(4)(a)); and
(vi) United Voice did not believe their concerns had been responded to appropriately by Dulux.
[31] United Voice further contend that Dulux’s conduct in proceeding to conduct a ballot on 13 September 2018 as notified on 4 September 2018 was contrary to good faith bargaining requirements in a number of respects. Specifically, that:
(i) During the bargaining meeting on 3 September 2018, United Voice requested to hold a meeting with its members for the purpose of discussing an alternative position to be put to the Respondent.
(ii) Dulux failed to disclose relevant information by not notifying United Voice of the time, place and method of the ballot to be conducted, in breach of s 229(1)(b) of the Act.
(iii) By holding discussions regarding next steps in bargaining during the meeting of 3 September 2018 and then subsequently notifying United Voice on 4 September 2018 of its intention to proceed to conduct a ballot on 13 September 2018, Dulux had engaged in capricious conduct in breach of s 229(1)(e) of the Act, having regard to the to the precedent of Communication, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia v Contract Electrical Pty 25(Contract Electrical).
(iv) Dulux’s conduct had undermined collective bargaining by preventing United Voice from putting an alternative position or positions to Dulux, in breach of s 229(1)(f) of the Act.
[32] United Voice sought orders in the following terms:
“A. That;
(a) The access period be immediately halted and planned meetings of the Applicant’s members to discuss alternative proposals scheduled for Tuesday 11the September and the bargaining meeting scheduled for Thursday 20th September be allowed to occur.
Or alternatively should these orders be issued on or after the scheduled closing date of the vote namely Thursday 13th September;
(b) Any completed ballots are disregarded and the bargaining meeting scheduled for Thursday 20th September be allowed to occur.
B. That for at least 28 days from the date of issuance of these Orders, unless bargaining representatives agree otherwise, the Respondent may not request that its employees vote to approve a proposed enterprise agreement.
C. That at least two further bargaining meetings are scheduled following the meeting on Thursday 20th September for the Respondent to give genuine consideration to any proposals from the Applicant.
D. That the Respondent gives their response to any proposals made and reasons for that response in writing to the Applicant within two weeks of any proposals being made.
E. That within one day from the date of issuance of these Orders, the Respondent issue a memorandum to employees explaining:
(a) that the access period has been immediately halted pursuant to Orders from the Fair Work Commission following a breach of good faith bargaining requirements OR;
(b) that any ballots cast have been disregarded pursuant to Orders from the Fair Work Commission following a breach of the good faith bargaining requirements”
Case for Dulux
[33] Dulux opposed the orders sought by United Voice and rejected United Voice contentions that it had it had breached sections 228(1)(b), (e) and (f) of the Act.
[34] Dulux denied that it had engaged in capricious conduct and failed to comply with good faith bargaining requirements. In doing so, they referred to the extensive history of bargaining for a new agreement that commenced in February 2018, following which there had been 17 bargaining meetings, two conferences before the Commission, three unsuccessful ballots and at least four drafts of the proposed agreement exchanged.
[35] Dulux submitted that it had been transparent in raising the prospect of a further ballot in the meeting of 3 September 2018 and in formally advising United Voice on 4 September 2018 of its intention to take the agreement to a further ballot on 13 September 2018 on identical terms to the offer put to employees at a previous ballot on 8 August 2018.
[36] Dulux submitted that it acknowledged and accepted United Voice’s role as the bargaining representative and at no stage had Dulux refused to allow United Voice to meet with employees regarding the agreement and bargaining progress. The capacity of United Voice to meet with employees and put its position regarding the proposed agreement, which could include encouraging a rejection of the proposed agreement by employees, was in no way altered for the 13 September 2018 ballot from the position that prevailed with respect to the previous three ballots.
[37] Dulux also submitted that obtaining agreement of all bargaining representatives prior to proceeding to a ballot was not required. Dulux noted that the respective bargaining positions of the parties had not altered in the bargaining meetings and period following the 8 August 2018 ballot.
[38] Dulux submitted that it had recognised and bargained with United Voice throughout bargaining, had made concessions, had given genuine consideration to United Voice’s proposals and had provided considered responses where proposals could not be agreed to. Dulux also submitted that it remained willing to conduct further bargaining meetings with United Voice, as evidenced by its agreement to meet on 20 September 2018 subject to the 13 September 2018 ballot result.
[39] As regards United Voice’s contention that Dulux had failed to disclose relevant information, Dulux referred to the email advice to United Voice on 4 September 2018 of the opening of the access period and date of the ballot along with relevant agreement material. Dulux submitted that the notification of the time, date and method of voting had been provided to employees as required by s 180(3) of the Act.
[40] While not generally contesting United Voice’s contentions that the other requirements of s 230 and s 229 of the Act had been met, Dulux takes issue with whether:
(i) United Voice genuinely held concerns regarding Dulux’s conduct; and
(ii) Whether Dulux had responded appropriately to United Voice’s concerns.
Statutory Context
[41] Section 229 of the Fair Work Act deals with the circumstances in which a bargaining representative may apply for a bargaining order. It is not necessary to set out that section for the purposes of the present matter. Section 230 confers a discretion to make a bargaining order in specified circumstances. In particular the Commission must be satisfied of a number of matters. The section reads:
“230 When the FWC may make a bargaining order
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.
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.”
[42] It can be seen that s 230(1) establishes three conditions for the making of an order. The first is that an application has been made. The second is that the requirements of the section have been met. The third is that the Commission is satisfied that it is reasonable in all the circumstances to make the order. Each of these conditions must be present. In this application, United Voice relies upon s. 230(3)(a)(i). That section provides that, before making a bargaining order, the Commission must be satisfied that at least one of the bargaining representatives has not met, or is not meeting, the good faith bargaining requirements.
[43] The good faith bargaining requirements are specified in s 228. That section reads:
“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.”
Consideration
[44] I am satisfied that the following conditions required by the legislation for the making of good faith bargaining orders have been met:
(i) United Voice is a bargaining representative capable of making the application and Dulux has acknowledged that United Voice is the bargaining representative for employees. Sections 229(1) and 230(1)(a) requirements of the Act are met.
(ii) Dulux have previously agreed to bargain. The requirements of s 230(2)(a) are met.
(iii) The Current Agreement applies to employees who will be covered by the proposed agreement. The requirements of s 229(3)(a) are met.
(iv) The requirements of s 229(3) regarding the time frame for making an application are met.
(v) United Voice held concerns regarding Dulux’s conduct and put those in writing to Dulux on 4 September 2018. The requirements of sections 229(4)(a)(i) and 229(4)(b) are met.
(vi) In circumstances where the access period opened on 5 September 2018 and a ballot was to be held on 13 September, I am satisfied that the Dulux were provided with a reasonable time within which to respond to United Voice’s concerns. This is evident from the exchange of correspondence between the parties from 4-6 September 2018. The requirements of s 229(4)(c) are met.
(vii) While Dulux may disagree with United Voice’s view, I am satisfied on the evidence of Mr Robson that United Voice held a genuine belief that the response provided by Dulux to United Voice’s concern was not appropriate. The requirements of s 229(4)(d) are met.
[45] Having regard to my findings above in relation to the statutory pre-requisites, I may make an order if I am satisfied that “one or more of the relevant bargaining representatives for the agreement have not met or are not meeting, the good faith bargaining requirements” (s 230(3)(a)(i)) and that “it is reasonable in all the circumstances to make the order” (s 230(1)(c)). As is evident from the submissions, Dulux and United Voice strongly contest whether good faith bargaining requirements are being met. I will now proceed to consider each of the claimed breaches of s 229(1) contended by United Voice.
Was there a failure to disclose relevant information – s 229(1)(b)
[46] United Voice contend that in notifying it on 4 September 2018 of an intention to conduct a further ballot, Dulux failed to provide it (United Voice) with the relevant ballot details, that is, the time, place and method of voting. In failing to provide that information at that time or subsequently, it was contended by United Voice that Dulux had failed to disclose relevant information, such conduct being in breach of s 229(1)(b) of the Act.
[47] The relevant extract from the email sent to United Voice on 4 September 2018 by Dulux states as follows:
“…..
Further to our bargaining meeting held yesterday (03 September) and after reasonably taking into account the feedback that you provided us with in that meeting, DuluxGroup has decided to take the Dandenong South Enterprise Bargaining Agreement to a vote, effective 13 September 2018, to provide employees with another opportunity to receive benefits set out in the attached agreement.
As such, the Company is opening up the access period and will be providing all relevant documents to all employees tomorrow (05 September 2018).
………” 26
[48] The advice given to United Voice on 4 September 2018 was in a similar form to advice given to them prior to the previous ballots conducted on 28 June 2018 27 and 8 August 2018.28 There was no evidence that United Voice took issue at the time of the earlier ballots with the form of advice given to them.
[49] There is no obligation for an employer to provide a bargaining representative with a copy of the ballot details as contended by United Voice, unless of course they are an employee. The statutory obligation is clear under s 180(3) of the Act where it states:
“(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.”
[50] Employees were provided with notice of the opening of the access period on 5 September 2018 along with relevant ballot details and copies of the proposed agreement and other relevant materials. I am satisfied that Dulux complied with the requirements of s 180(3).
[51] In any event, United Voice were advised in the email of 4 September 2018 of the date of the ballot in terms consistent with the form of notice given to them prior to earlier unsuccessful ballots; they understood the ballot was to be conducted on 13 September 2018; they were provided with a copy of the proposed agreement and other relevant materials; and were afforded an opportunity to meet with employees prior to the conduct of the ballot.
[52] Having particular regard to the content and form of information that was provided to United Voice on 4 September 2018, I am not persuaded in the circumstances that Dulux has failed to disclose relevant information as contended by United Voice.
Was there capricious or unfair conduct that undermines freedom of association or collective bargaining – s 229(1)(e)
[53] I am satisfied on the evidence that the parties have been firm in their respective positions in terms of wage increase and agreement term and have so far been unable to bridge that gap, despite some small movements, over the course of several months, 17 bargaining meetings and two conferences before the Commission. Significantly, no movement has been made by either party in their bargaining positions following the unsuccessful ballot conducted on 8 August 2018 despite a further bargaining meeting on 17 August 2018 and a conference held before the Commission on 27 August 2018.
[54] I am further satisfied that that both parties emerged from the Commission conference conducted on 27 August 2018 with expectations that the other party would consider their position prior to the next bargaining meeting to be conducted on 3 September 2018. It is evident on any reading of the minutes of 3 September 2018 bargaining meeting, which is supported by the evidence of both Mr Robson for United Voice and Mr Holmes for Dulux, that there was a degree of frustration and circularity of argument regarding the issue of wages and agreement term during the meeting. It is clear that both parties pressed each other for feedback or alternate proposals. None were forthcoming and while United Voice indicated a willingness to consider alternate options, Dulux stuck resolutely to their previous position that their offer of 2.25% per year over a three year nine month term was as far as it was prepared to go. No criticism is made of either party as to the positions they had taken or maintained in bargaining over wages and the agreement term.
[55] I am also satisfied that towards the conclusion of that meeting there was a reference made by Mr Holmes to the potential for a further ballot as a means of resolving the outstanding issues. I accept Mr Holmes’ statement was not an explicit statement of intent but rather simply flagged a further ballot as an option available to Dulux. That however is not significant given subsequent communication with United Voice.
[56] It is unsurprising that Dulux raised the prospect of a further ballot during the meeting of 3 September 2018 given the lack of movement in bargaining and the previous ballot results which showed a trend towards a positive vote for the agreement. For its part, United Voice indicated to Dulux at the conclusion of the meeting that it would seek to meet with employees and seek further instructions. No specific request of dates for such meetings were made by United Voice during the meeting.
[57] United Voice contend that the 3 September 2018 bargaining meeting included a discussion of next steps and that Dulux’s subsequent decision to go to ballot was contrary to that discussion of next steps, rendering the conduct capricious. I am not satisfied that there was agreement as to next steps. It appears that, confronted with Dulux’s firm position on wages and agreement term, United Voice indicated that it would seek to meet with employees at a future unspecified time and seek further instructions.
[58] I am satisfied that subsequent to the bargaining meeting, Dulux concluded that as no further movement or progress had been made and having regard to the tight ballot result of 8 August 2018, a further ballot offered some prospect of success from its viewpoint. Having reached that conclusion, Dulux then advised the site delegate verbally and United Voice by email on 4 September 2018 of that decision and timeline.
[59] Guidance as to the meaning of capricious conduct can be gained from the Explanatory Memorandum to the Fair Work Act 2009 which says:
“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.”
[60] I am not persuaded that Dulux’s conduct falls within the above-described classes of conduct. Even if I were to have found the conduct capricious, there was no evidence that the conduct undermined collective bargaining or freedom of association. That is clear as evidenced by the continuing role of United Voice as bargaining representative; their access to and representation of employees; the absence of evidence of any actions taken by Dulux to side-line or subvert the role of United Voice; and the fact that Dulux readily agreed to participate in a further bargaining meeting on 20 September 2018 in the event the ballot was unsuccessful.
[61] Nor am I persuaded that Dulux’s conduct could be described as capricious having regard to the Macquarie Dictionary meaning of the term “caprice” which defines it as “a sudden change of mind without apparent adequate motive, whim” or “tendency to change one’s mind without apparent or adequate motive”. In the present circumstances, Dulux could be accused of being the opposite of capricious. It has steadfastly held to a firm bargaining position, albeit with some movements over the course of bargaining, and when it has judged appropriate, sought to test that position with employees by way of ballot. While United Voice may feel aggrieved by the lack of recent movement in Dulux’ position on wages, the conduct of Dulux has been nothing if not consistent and predictable.
[62] Having regard to the particular circumstances and history of bargaining for the agreement, I am not satisfied that the conduct of Dulux cited by United Voice was capricious or unfair conduct that undermines freedom of association or collective bargaining. Consequently I am not persuaded that Dulux have breached s 229(1)(e).
Was there a failure to recognise and bargain with the other bargaining representatives for the agreement – s 229(1)(f)
[63] United Voice contend that Dulux’s decision to proceed to a further ballot on 13 September 2018 denied United Voice an opportunity to seek further instructions from employees and put alternative positions in circumstances where they had raised an intention to do so at the conclusion of the bargaining meeting on 3 September 2018. This in United Voices’ submission was in breach of s 229(1)(f).
[64] I am satisfied on the evidence that Dulux has recognised and bargained with United Voice over an extended period in the current round of bargaining. In doing so, Dulux has facilitated United Voice meeting with employees regularly and immediately prior to each ballot conducted. Subject to the outcome of the 13 September 2018 ballot, a further bargaining meeting is scheduled.
[65] I am not persuaded that United Voice have been denied the opportunity of developing and presenting alternative proposals in circumstances where bargaining commenced on 15 February 2018 and has seen 17 meetings conducted since. Both parties may have been frustrated at the other’s unwillingness to move but neither has been denied an opportunity to develop and put alternative bargaining positions. The fact that no alternative positions were developed or put by either party in the period following the 8 August 2018 ballot is also telling.
[66] It is also relevant that at the 3 September 2018 bargaining meeting, United Voice did not identify specific dates or timeframes within which they sought to meet with employees following that bargaining meeting. The specific request came immediately after Dulux notified United Voice on 4 September 2018 of the intention to proceed to a ballot on 13 September 2018.
[67] I am not satisfied that Dulux’s conduct in proceeding to a ballot on 13 September 2018 represents a failure on their part to recognise and bargain with United Voice for the agreement. In fact, the evidence of overall bargaining is strongly to the contrary in my view. Consequently, I am not persuaded that Dulux has breached s 229(1)(f).
[68] Finally, I will briefly address the submission made by United Voice that the circumstances in the present case were analogous to those in Contract Electrical in which case Commissioner Deegan issued bargaining orders against the employer. The key findings of the Commissioner in that case were as follows:
“[48] On 16 August 2012 the employer arranged to hold two further meetings with the CEPU. At the very same time its advisors were providing it with a final agreement which it intended to put to a vote. The employer then put that proposed agreement to the vote on 21 August without informing the CEPU, the other bargaining representative. Such behaviour falls squarely within the dictionary definition of “capricious”, i.e. “a sudden and unaccountable change of mood or behaviour”. I am satisfied that the employer engaged in that conduct in a calculated move intended to undermine the role of the CEPU in bargaining, and, as such, undermined freedom of association and collective bargaining.
[49] Clearly, by failing to advise the CEPU of its intention to cease bargaining, by making further unadvised amendments to the draft agreement and then putting that agreement to a vote without notice to the CEPU the employer was failing to recognise the role of the CEPU in bargaining and failing to bargain with that union. This is conduct clearly distinguishable from that of the employers in Tahmoor Coal and in Shinegawa.
[50] Other failures by the employer to meet the good faith bargaining requirements were raised by the CEPU. Given the seriousness of the failures of which I was already satisfied I did not deal with the other matters.” 29
[69] The circumstances of the present matter are distinguishable and I do not believe that Contract Electrical is on point with the present matter including for the following reasons:
(i) The agreement put by Dulux to the ballot on 13 September 2018 was in the same terms as put to the previous ballot of 8 August 2018. No unadvised amendments were made.
(ii) Dulux flagged the prospect of a further ballot in the bargaining meeting of 3 September 2018 and then formally advised United Voice of that decision on 4 September 2018, prior to employees being notified on 5 September 2018.
(iii) There was no evidence that Dulux’s move was calculated to undermine the role of United Voice.
(iv) Dulux’s agreement to hold a further bargaining meeting on 20 September 2018 Voice was confirmed in response to a request by United Voice made after Dulux advised of the 13 September 2018 ballot and was contingent on the ballot result.
Conclusion
[70] I am not persuaded that the actions of Dulux raised by United Voice have breached the good faith bargaining requirements of the Act.
[71] For these reasons United Voice’s application for bargaining order is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr D Robson for United Voice.
Ms C Brain for DuluxGroup (Australia) Pty Ltd.
Hearing details:
2018
Melbourne.
September 12.
Printed by authority of the Commonwealth Government Printer
<PR700456>
1 Exhibit R1, Witness Statement of Mr. Andrew Holmes, dated 12 September 2018, at paragraph [3].
2 AG2015/2624.
3 Exhibit R1 at paragraph [7].
4 Ibid at paragraphs [8] – [13].
5 Ibid at paragraph [14].
6 Ibid at Annexure AH1.
7 Ibid at paragraph [19].
8 Ibid at paragraph [21].
9 Exhibit A1, Witness statement of Mr. Daniel Robson, dated 11 September 2018, at paragraphs [12]-[13]
10 Exhibit R1 at paragraph [25]-[26].
11 Exhibit R1 at Annexure AH2.
12 Exhibit R1 at paragraph [29].
13 Ibid at paragraph [32] –[33].
14 Ibid at Annexure AH3.
15 Ibid at paragraph [34]-[37].
16 Ibid at paragraph [38].
17 Ibid at paragraph [40].
18 Exhibit A1 at paragraph [25].
19 Ibid at paragraphs [29]-[31], Exhibit R1and paragraph [44].
20 Exhibit R1 at Annexure AH4.
21 Ibid at Annexure AH5.
22 Ibid at Annexure AH6.
23 Ibid.
24 Exhibit R1 at Annexure AH7.
25 [2012] FWA 8137.
26 Exhibit R1 at Annexure AH5.
27 Ibid, at Annexure AH2.
28 Annexure AH3.
29 [2012] FWA 8137 at paragraph [48]-[50].
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