United Voice v Jupiters Limited

[2011] FWA 8440

[2011] FWA 8440

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

United Voice
v
Jupiters Limited
(B2011/3821)

COMMISSIONER ASBURY BRISBANE, 5 DECEMBER 2011

Application for protected action ballot order - Contention that union not genuinely trying to reach agreement - Contention that union has engaged in deliberate misrepresentation of employer’s wages offer and has refused to cure misrepresentation - Contention that Union has engaged in capricious or unfair conduct that undermines collective bargaining and that it follows that the union is not genuinely trying to reach agreement - Finding that union has not engaged in deliberate misrepresentation and is genuinely trying to reach agreement - Application for protected action ballot order granted.

Background

[1] On 1 November 2011, United Voice applied under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot Order in relation to employees of Echo Entertainment Limited. Directions were issued on 1 November 2011 requiring a written response to the application by 12.00 pm on 2 November 2011, advising whether there was an objection to the Orders in the terms sought, and whether the Respondent sought to be heard in relation to the objection.

[2] United Voice was directed to file an outline of submissions and statements of evidence from any witnesses in support of the application by 4.00 pm on 2 November 2011. The Respondent was directed to file an outline of submissions and statements of evidence from any witnesses by 12.00 pm on 3 November 2011, in the event it elected to object to the making of the Orders.

[3] The Directions also indicated that if there was an objection to the Order being made, the matter would be heard at 3.00pm on 3 November 2011 and if there was no objection the application would be determined on the basis of material on the file.

[4] At 12.28 pm on 2 November 2011, correspondence was received from Jupiters Limited indicating that it was the proper respondent, and stating that it sought to be heard in relation to the application, on the basis that it was concerned with recent actions of United Voice and there are serious issues as to whether the Union has been or is genuinely trying to reach agreement. Correspondence was also received from United Voice on 2 November 2011 stating that it had been advised that the correct name of the respondent is Jupiters Limited and seeking to amend the application to reflect this. No further issue was raised by Jupiters Limited in relation to this matter, and in the circumstances, the application is amended pursuant to s.586 of the Act, so that the respondent is Jupiters Limited

[5] United Voice filed a statement of Kristin Gay Collorafi, Hospitality Organiser at 11.28 am on 3 November 2011, outside the time required in the Directions Order. An outline of submissions was filed by Jupiters Limited, at 11.20 am on 3 November 2011, in accordance with the timetable set out in the Directions Order. Those submissions referred to the failure of United Voice to file witness statements in accordance with the Directions and asserted that there was no evidence that the United Voice is, and has genuinely been trying to reach agreement.

[6] At the hearing on 3 November 2011, the representative for Jupiters Limited, Mr Ross Clarke, indicated that Jupiters Limited now sought to call evidence in response to that set out in the witness statement of Ms Collorafi, and had been unable to do so because of non-compliance with Directions on the part of United Voice, in filing the statement outside the time specified in the Directions.

[7] Applicants for protected action ballot orders are aware that Fair Work Australia, as far as practicable, is required to determine such applications within two working days after the application is made. In circumstances where the application is not contested, it will generally be the case that Fair Work Australia will require some evidence, usually in the form of a statement from a person who has been involved in trying to make the proposed agreement, in order to be satisfied that the requirements of the Act have been met.

[8] I determined that an adjournment should be granted on the basis that Jupiters Limited did not have a proper opportunity to put on evidence, because it was reasonably entitled to assume that there was no requirement for it to do so, given that United Voice had not filed any statements of evidence in relation to the requirements of the making of the protected action ballot order. Accordingly, the hearing was adjourned to allow Jupiters Limited a proper opportunity to put on evidence and was relisted for 11 November 2011. Further directions were made in relation to the filing of evidence.

[9] On 8 November 2011 Jupiters Limited filed a witness statement of Ms Josephine Dalton, Acting General Manager Human Resources. Essentially the case advanced by Jupiters Limited in opposition to the application by United Voice for a protected ballot order, focused on conduct by United Voice in disseminating and displaying flyers and banners in relation to a wages offer by Jupiters Limited, which were said to be misleading and to misrepresent that offer. It was contended that this conduct, viewed objectively, meant that United Voice had not been genuinely trying to reach agreement.

Application by Jupiters Limited for a bargaining order

[10] On 10 November 2011 Jupiters Limited made an application under s.229 of the Act for a bargaining order. 1 The application for the bargaining order contended that United Voice is not meeting the good faith bargaining requirements for the proposed agreement, on the basis that United Voice was distributing and displaying what are said to be misleading flyers and banners to Jupiters Limited staff and patrons misrepresenting proposed wage increases. This was said to be unfair conduct that undermines collective bargaining and a failure to meet the good faith bargaining requirement set out in s.228(e) of the Act. That conduct was the same conduct relied on by Jupiters Limited in opposition to the protected action ballot application, on the basis that it was contended that United Voice had not been, and is not, genuinely trying to reach agreement with Jupiters Limited.

[11] The application by Jupiters Limited for a bargaining order was also allocated to me to hear and determine. The hearing in relation to the application by Jupiters Limited for a bargaining order took place on 23 November 2011.Evidence on behalf of Jupiters Limited in support of that application was given by Ms Dalton. Evidence for United Voice in opposition to the application was given by Ms Collorafi. A decision dismissing that application has been released. 2

The hearing in relation to the application for a protected action ballot order

[12] It was agreed in the hearing on 11 November 2011, in relation to the application by United Voice for a protected action ballot order, that where possible, United Voice and Jupiters Limited would rely on the evidence in the bargaining order application to prevent duplication.

[13] At the hearing on 11 November 2011 in relation to the application for a protected action ballot order, evidence was given for United Voice by Ms Collorafi. Evidence on behalf of Jupiters Limited was given by Ms Dalton.

[14] It was also agreed by the parties that final submission in relation to the application by United Voice for a protected action ballot order would be deferred until after the hearing of the application by Jupiters Limited for a bargaining order. United Voice and Jupiters Limited lodged written submissions on 24 and 25 November respectively. Those submissions indicated that Jupiters Limited and United Voice also relied on their submissions and evidence in the hearing in relation to the application by Jupiters Limited for a bargaining order.

Conclusions

[15] In accordance with the agreed process for the conduct of this application and the application by Jupiters Limited for a bargaining order, I have taken all of the evidence in both proceedings into account in reaching my conclusions.

[16] It was not in dispute that the application for a protected action ballot order meets the requirements in s.437 and s.438 of the Act. United Voice is a bargaining representative for employees who will be covered by a proposed enterprise agreement with Jupiters Limited: s.437(1). The proposed enterprise agreement is not a greenfields or multi-enterprise agreement: s.437(2). The application specifies the group of employees to be balloted, and the questions to be put to employees: s.437(3)(a) and (b). United Voice seeks that the ballot be conducted by the Australian Electoral Commission so that s.437(4) is not relevant. The group of employees to be balloted includes only employees who will be covered by the proposed enterprise agreement, and who are represented by United Voice: s.437(5).

[17] The enterprise agreement covering employees who will be covered by the proposed agreement has reached its nominal expiry date: s.438(1). It is stated in the application that United Voice has given a copy of the application to Jupiters Limited and to the Australian Electoral Commission: s.440. The only issue in dispute, is whether Fair Work Australia can be satisfied that United Voice is, or has been genuinely trying to reach agreement as required by s.443(b).

[18] In its final submissions in opposition to the making of the protected action ballot order, Jupiters Limited contended that the kernel of its case is the misleading flyers and banners of United Voice, detailed in the bargaining order matter, and that viewed objectively, this conduct meant that United Voice has not been genuinely trying to reach an agreement. While not pressed in the final submissions, reference was also made to the outline of submissions filed by Jupiters Limited on 3 November, where it was asserted that in addition to the misrepresentation of Jupiters’ wages offer, United Voice was not genuinely trying to reach agreement because United Voice:

● refused to attend a key meeting, contrary to an agreed bargaining protocol, where Jupiters Limited tabled a revised pay proposal;
● had otherwise used the bargaining process as a vehicle to embark on an aggressive membership drive, by ingratiating itself and growing its membership base, and in doing so had harassed a number of employees; and
● had otherwise been divisive in its tactics surrounding the bargaining.

[19] In the decision in Jupiters Limited v United Voice 3in relation to the application by Jupiters Limited for a bargaining order, I set out in detail the basis for my conclusion that United Voice had not engaged in misrepresentation with respect to the wages offer by Jupiters Limited. For the same reasons, I do not accept that United Voice has engaged in misleading conduct, or that the Union has been untruthful in respect of its communication with employees in relation to the wages offer made by Jupiters Limited.

[20] Essentially, Jupiters Limited has sought to achieve a total payroll increase of 3% each of the three years of the proposed agreement and has made a range of proposals whereby increases to payroll costs as a result of the introduction of the National Employment Standards and the modern award, are included in the 3% offer. Jupiters Limited made an initial offer of a 1.5% wage increase on an interim basis, on 24 August 2011. On 12 October Jupiters Limited made an offer of a 3% payroll increase, including a 1.5% increase to wages. There was no indication that the offer did not apply in the second and third years of the agreement. On 26 October 2011 Jupiters made a proposal involving four wages scenarios, and the minimum wage increase available in those scenarios was 1.81% in the first year of the agreement. A further scenario was also provided at a meeting of 9 November 2011. All of the scenarios result in a total payroll increase of 3% for each year of the Agreement. They do not in my view constitute formal offers.

[21] Jupiters did not withdraw its 1.5% offer, and it was not unreasonable for United Voice to treat that offer as still being on the table. United Voice has expressed displeasure at the wages proposals put forward by Jupiters Limited and has focused on the lowest offer in the various scenarios. Jupiters Limited has complained that United Voice has not highlighted that its proposed scenarios of 26 October and 9 November provide for higher wages outcomes than the original offer of 1.5%. For the reasons set out in Jupiters Limited v United Voice 4 I do not accept that for United Voice to focus on the lowest offer in its communications with members, is misrepresentation, just as it is not misrepresentation for Jupiters Limited to highlight the highest of its proposed wage scenarios.

[22] In the present case, there is evidence that United Voice attempted to commence bargaining with Jupiters Limited from January 2011. Bargaining did not commence until July 2011, because of delays associated with restructuring of Jupiters Limited. United Voice has attended six meetings with Jupiters Limited and has responded to its proposals and put its own proposals for consideration. There is also evidence that for a period of time United Voice refused to attend bargaining meetings with Jupiters Limited until the Company altered its position in relation to the 3% cap on payroll costs. In my view a refusal on the part of United Voice to attend part of a series of negotiation meetings, in the context of endeavouring to secure a change in position from Jupiters Limited, does not mean that United Voice is not or has not been genuinely trying to reach agreement.

[23] The bargaining process has been vigorous and robust. Jupiters Limited has sought to have employees “slice the pie” in the manner in which they choose. United Voice has sought to increase the size of the pie. For United Voice to view this as a threshold issue, does not equate to the Union not genuinely trying to reach agreement. United Voice has now altered its position in relation to non-attendance at meetings and bargaining is proceeding.

[24] The concept of collective bargaining is predicated on employees being able to choose to be represented by unions and this is recognised by the establishment of unions as bargaining representatives for their members, unless an individual member appoints another person or revokes the status of the union. It is axiomatic that unions would use bargaining to attract and retain membership by endeavouring to achieve the best possible outcome for members. That a union does so through robust and vigorous criticism of the conduct of an employer and its wages scenarios or offers, does not equate with the union not genuinely trying to reach agreement.

[25] There is also evidence that Jupiters Limited has taken direct action to attempt to ensure that employees are aware of their right to appoint a person other than a representative of United Voice as their representative in the bargaining process, by attaching a cover sheet and a nomination form to the Notice of Employee Representational Rights required to be given to all employees pursuant to s.174(6) of the Act and Regulation 2.05 of the Fair Work Regulations encouraging employees to think about whether they would like to represent themselves or nominate a colleague as a representative regardless of whether or not the employee is a union member. In my view, it could equally be contended that this is divisive conduct on the part of Jupiters Limited. Further there is insufficient evidence upon which I could reasonably be satisfied that a serious allegation of harassment of employees by United Voice has been made out.

[26] In my view, the substance of the complaint of Jupiters Limited is the manner in which United Voice is attempting to reach agreement rather than whether or not the union is attempting to do so. United Voice has clearly articulated its position of non-acceptance of the approach of Jupiters Limited to payroll changes, in communications with Jupiters Limited and the employees it represents. United Voice has also articulated the major matters it seeks in the proposed agreement. No agreement has been reached.

[27] In all of the circumstances, I am satisfied that United Voice is and has genuinely been trying to reach agreement with Jupiters Limited and that the requirements for making a protected action ballot order have been met. Accordingly, pursuant to s. 437 of the Act, the order must be made. An Order based on the draft provided by United Voice will issue with this decision.

COMMISSIONER

Appearances:

Mr J. Spreckley and Ms C. Jones on behalf of United Voice.

Mr R. Clarke, Ms J. Dalton and Mr B. Clark on behalf of Jupiters Limited.

Hearing details:

2011.
Brisbane:
November 3; 11.

 1   B2011/3926.

 2   [2011] FWA 8317

 3   [2011] FWA 8317

 4   [2011] FWA 8317

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