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…

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.

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Details

Case: [2011] FWA 8440
Decision Date: 5 DECEMBER 2011

CaseChat Overview and Summary

In the Fair Work Commission, United Voice sought an order for a ballot for protected action against Jupiters Limited. The union argued that the employer had made an inadequate offer and that there was no genuine attempt to reach an agreement. The employer, in turn, claimed that the union was not genuinely trying to reach an agreement and had engaged in deliberate misrepresentation of their offer and had refused to correct this misrepresentation. The employer further argued that the union's conduct was capricious or unfair and undermined the collective bargaining process.

The Commission needed to determine whether the union was genuinely trying to reach an agreement and whether it had engaged in deliberate misrepresentation of the employer's offer. Additionally, the Commission had to consider whether the union's conduct was capricious or unfair and whether it undermined collective bargaining.

The Commission found that the union had not engaged in deliberate misrepresentation of the employer's offer. The union had genuinely attempted to reach an agreement with the employer and had not engaged in any conduct that would undermine the collective bargaining process. The Commission found that the union was genuinely trying to reach an agreement and granted the application for a ballot for protected action.

Orders