United Voice v MSS Security Pty Ltd
[2013] FWC 4431
•8 JULY 2013
[2013] FWC 4431 |
FAIR WORK COMMISSION |
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
United Voice
v
MSS Security Pty Ltd
(B2013/928)
COMMISSIONER CLOGHAN | PERTH, 8 JULY 2013 |
Application for a bargaining order.
[1] This is an application by United Voice which seeks a bargaining order that MSS Security Pty Ltd revoke a notice of employer response action to nine (9) employees which locked them out. MSS Security Pty Ltd notice of lock out is part of industrial action taken by both parties for a replacement enterprise agreement.
PROCEDURAL BACKGROUND
[2] On 5 June 2013, United Voice (Applicant) made application pursuant to s.229 of the Fair Work Act 2009 (FW Act) for a bargaining order.
[3] The bargaining order is sought against MSS Security Pty Ltd (Employer).
[4] A hearing into the application occurred on 7 June 2013.
[5] At the hearing, the Applicant was represented by Mr G Noble, National Legal Officer. Evidence was given on behalf of the Applicant by Mr P O’Donnell, Assistant Secretary, Western Australian Branch.
[6] The Employer was represented by Mr Levin of counsel. Evidence was given by Mr M Cachia, General Manager, Aviation and Ms S Pedlow, Manager Human Resources for Western Australia.
[7] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.
RELEVANT BACKGROUND
[8] By way of background, Mr O’Donnell gave evidence that the first bargaining meeting of the parties commenced on 13 December 2012. Since that bargaining meeting, there have been a further six (6) meetings.
[9] Mr O’Donnell states in his evidence, that there has been an active exchange of correspondence and the Applicant is genuinely trying to reach agreement. Mr O’Donnell concludes his witness statement that United Voice members are seeking to take protected industrial action to advance their claims and in particular, their claims in relation to wages. Mr O’Donnell states that United Voice will consider all proposals put forward by the Employer to resolve outstanding issues.
[10] On 4 June 2013, the Applicant sent correspondence to the Employer. The relevant parts are as follows:
“We refer to the notice to bargaining representatives dated 1 June 2013 from Mark Cachia notifying a lock out of nine employees until there is a majority ‘yes’ vote in favour of the proposed enterprise agreement.
Section 228(e) of the Fair Work Act 2009 (“the Act”) requires a bargaining representative to “[refrain] from capricious and unfair conduct that undermines....collective bargaining”. We have concerns that the Company, through locking out only 9 employees and connecting the lock out to the agreement on terms of the proposed enterprise agreement may not be meeting the good faith bargaining requirements of the Act. Accordingly, we request the Company revoke the lock out of the nine employees by close of business 5 June 2013. Such a revocation can be made (see Boral Resources (NSW) Pty Limited v AWU[2010] FWAFB 1771) (Boral).
As you would be aware good faith collective bargaining under the Act does not require a bargaining representative to make concessions or agree on the terms to be included in the proposed enterprise agreement.
This correspondence is taken to be notice under section 229 of the Act that if you do not respond or we do not consider your response appropriate, we will apply to the Fair Work Commission under section 230 of the Act for a bargaining order. As this is an urgent matter, we require a response by 11 am, 5 June 2013.” 1
[11] On the same day, 4 June 2013, the Employer responded as follows;
“While we disagree with your legal position that the notice to bargaining representatives dated 1 June 2013 in any way breaches section 228(e) of the Fair Work Act 2009, our client proposes to revoke the current notice and immediately reissue the notice including the following amended paragraph:
“When will the lock out commence and conclude?
The lock out of The Employees will commence at the time each of The Employees is given this notice on Saturday 1st June 2013 and will continue “indefinitely”, until MSS Security Pty Ltd gives notice that the lock out will cease.”
Please confirm in writing that the amended notice addresses the concerns you have in relation to section 228(e) of the Fair Work Act 2009.”
[12] Further, and later on the same day (4 June 2013), the Employer continued its response as follows:
“Our letter to you this evening referred to the lock out date in the amended notice as Saturday 1st June 2013.
For the avoidance of doubt, we confirm that the actual date in the notice would be the date when the new notice is issued.”
BARGAINING ORDER SOUGHT
[13] United Voice in its application on 5 June 2013 state:
“United Voice does not consider the response [4 June 2013] satisfactory, particularly as it does not address the lock out and its consequences for the nine employees in question during the period, what United Voice contends, a defective notice and resulted unprotected action.
United Voice contends, that by only identifying and locking out nine (9) employees, the Respondent is engaging in unfair conduct and not acting in good faith by failing to meet the requirements relating to purposeful and meaning (sic) communication, and is as a consequence, in breach of s.228 of the Fair Work Act 2009.
The Respondent has on a number of occasions failed to bargain in good faith as it has not met the requirements of s.228(1)(a)-(d) of the FW Act relating to meaningful communication. For example, at a meeting on 19 April 2013 where no explanation was forthcoming on the Company’s latest wage offer together with earlier refusals of relevant information relating to wage offers.”
[14] The application seeks an order that the lock out of the nine (9) employees be revoked.
THE DISPUTE
[15] For the purposes of this application, I have adopted paragraphs [10] to [21] in [2013] FWC 4087 (application C2013/4647) for an order, pursuant to s.418 of the FW Act, that the Employer stop industrial action.
[16] Since September 2012, the Employer has been in bargaining with United Voice for a replacement to the MSS Security Pty Limited - LHMU - Perth Airport (WA) Enterprise Agreement 2010-2012 (2010 Agreement).
[17] The nominal expiry date of the 2010 Agreement is 31 December 2012.
[18] United Voice is a bargaining representative for the proposed replacement agreement.
[19] On 26 April 2013, United Voice made application for a protected action ballot order pursuant to s.437 of the FW Act. The Commission granted the Order on 1 May 2013 (PR536074).
[20] On 20 May 2013, the Australian Electoral Commission declared the results of the protected action ballot, in which a majority of eligible voters approved the taking of protected industrial action.
[21] On 22 May 2013, United Voice gave the Employer notice of employee claim action in the form of a one (1) hour stoppage and the wearing of stickers, badges, etc. The employee claim action commenced on 28 May 2013 at 2:00 pm and ceased at 3:00 pm.
[22] On 24 May 2013, United Voice gave further notice of employee claim action to commence on 30 May 2013 and concluding on 31 May 2013.
[23] On 28 May 2013, the Employer gave notice to United Voice of employer response action in the form of a lock out of five (5) employees. The Employer’s notice of 28 May 2013 states:
“The lock out is being organised and engaged in as a response to the industrial action taken on Tuesday 28 May 2013 / Wednesday 29 May 2013.”
[24] On the same day, a similar notice was given by the Employer to the five (5) affected employees. The Employer’s notice to employees states that the action was as a result of the “industrial action taken on 28 and 29 May 2013”. The Employer response action was to commence “at the time each of the Employees respectively is given a lock out notice on 28/29 May 2013 and will continue until 0300 hrs on Wednesday 12th June 2013”.
[25] Subsequently on 28 May 2013, United Voice gave the Employer notice of employee response action “pursuant to section 414(5) (sic) of the Fair Work Act 2009...this action is as a direct response to the lock out of [names of five employees]. All members of United Voice...will be engaging in a 24 hour stoppage of work commencing at 3:00 pm 28 May 2013 and concluding at 3:00 pm on 29 May 2013”.
[26] On 1 June 2013, the Employer gave to United Voice and other bargaining representatives, notice of employer response action in the form of a lock out of a further nine (9) employees. The notice states that the lock out “is being organised and engaged in as a response to the industrial action taken on Tuesday 28 May 2013”. The notice provides when the employers response action commences and informs the bargaining representatives that the lock out of the nine (9) employees “will continue indefinitely”.
[27] A similar notice was provided to the nine (9) affected employees.
RELEVANT STATUTORY FRAMEWORK
[28] The prerequisites for making an application are contained in subsection 229(4) of the FW Act as follows:
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.
[29] The good faith bargaining requirements are set out in s.228 of the FW Act 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.
(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.
[30] The circumstances in when the Commission may make a bargaining order is contained in s.230 of the FW Act. Importantly, the Commission, if it is to exercise its discretion and make an order, must be satisfied that one or more of the bargaining representatives “have not met, or are not meeting the good faith bargaining requirements”(ss.230(4) of the FW Act).
[31] Finally, the kinds and specifications of bargaining orders are contained in s.231 of the FW Act.
CONSIDERATION
[32] One of the objects of the FW Act at section 3 is:
“(f) achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.” (my emphasis)
[33] More detailed provisions relating to “good faith bargaining” and “industrial action” are contained in Parts 2-4 and 3-3 of the FW Act respectively.
[34] The substantive provisions of good faith bargaining are contained in s.228 of the FW Act and these are set out in paragraph [29].
[35] It is clear from the application and submissions that United Voice is asserting that the Employer is not bargaining in good faith pursuant to paragraph 228(1)(e) of the FW Act in that the Employer has engaged in capricious or unfair conduct “by only identifying and locking out 9 employees”.
[36] There is no dispute that the Employer has locked out nine (9) employees but I have no evidence or submission as to why it is “capricious or unfair conduct”.
[37] An assertion that locking out only nine (9) employees is a statement or declaration of United Voice’s position but, of itself, does not mean that the Employer has breached the good faith bargaining requirements in s.228(1)(e) of the FW Act.
[38] In view of the fact that United Voice’s statement uses to adjective “only”, I assume it is intended to convey to the Commission that it is capricious or unfair to have this group of employees disadvantaged in comparison to others.
[39] Firstly, as a matter of fact, the nine (9) employees are not the only employees to be locked out. There are a further five (5) employees that I was made aware of in the proceedings, that have been locked out.
[40] Secondly, I received no submission or evidence that this group of nine (9) employees had been singled out on any grounds which make it capricious or unfair conduct except the inference that it is unfair to “punish” some individuals and not all, or none.
[41] Enterprise bargaining is “underpinned” by “good faith bargaining” and the potential to take “industrial action”. Subject to the provisions of the FW Act, the parties can take, and have taken, protected industrial action in bargaining. Put simply, the Employer is engaging in protected industrial action by locking out nine (9) employees which it is able to do so pursuant to s.411 of the FW Act.
[42] For the above reasons, I am unable to determine in this application that the Employer by engaging in employer response action, is taking action which is capricious or unfair conduct.
[43] In paragraph [10], United Voice refer to the Full Bench decision in Boral. The main issue for consideration by the Full Bench in Boral was whether “a delay, restriction or limitation of work brought about by a misleading notice constitutes industrial action for the purposes of the Act” 2. The Full Bench reached the conclusion that there was insufficient evidence for the Tribunal member, at first instance, to determine that the conduct complained of, “namely the AWU issuing notices of industrial action and not adhering to them, amounted to “industrial action”.3 In Boral the Full Bench came to the view that even if, the AWU had issued misleading notices, “we doubt that such conduct would fall within the description of industrial action”4.
[44] While Boral, in my view, is not on point, there was no suggestion that the employer issued misleading notices. United Voice, in the circumstances of bargaining, understood that the employer response action of a lock out to the employees was for the duration of bargaining or to an undefined date.
[45] Finally, for completion, I should note that I received no submissions or evidence that the locking out of the nine (9) employees was undermining “freedom of association” or “collective bargaining” as required in paragraph 228(1)(e) of the FW Act.
[46] I now turn to the ground that the Employer failed to bargain in good faith in relation to meaningful communication, and in particular, the fact that no explanation was given at a meeting on 19 April 2013 in relation to a wage offer and earlier refusals of information relating to the wage offer. While the Applicant suggested that this breach of good faith bargaining fell within the provisions of paragraphs 228(1)(a)-(c), I consider the matter more appropriately dealt with in terms of paragraph 228(1)(c) and (d) of the FW Act.
[47] Mr O’Donnell’s evidence is that “during this meeting [19 April 2013] the Applicant sought further explanation on the Respondent’s clauses. No explanation was forthcoming and all questions were taken on notice. The Applicant also sought further clarification on the second wage offer, also no explanation was forthcoming other than on very broad terms”.
[48] This is the same evidence given by the Applicant in relation to its application for a protected action ballot order on 1 May 2013 but appears not to have been an issue for a bargaining order until this application on 5 June 2013.
[49] Further, I have the uncontested evidence of Ms Pedlow that:
“39. On 8th May, 2013, Mr Grasso wrote to the Union responding to their concerns in relation to the clauses put forward and providing financial information...
42. Mr Dane explained what the concerns were with some of the other clauses and I stated that I would take them into consideration and come back at the next meeting.
44. At this meeting, Mr Dane also made a number of statements that implied that the Company was not bargaining in good faith. Mr Dane also made a number of statements at this meeting, in response to the company’s request for information in writing, that the Company was not “negotiating at the table”. There was definitely confusion around what should be addressed in the negotiations meetings as both the Union and the Company had requested information in this format [“mark up” changes].
48. At the meeting on 21st May, Mr Dane stated that the Union would not respond or move on their wages claim until such time as the Company had responded to all outstanding items on the Union’s Log of Claims. The Company then provided the Union with a number of options in relation to the clauses discussed at the previous meeting and discussed some of the LOC [log of claims] items.
50. Mr Grasso stated that we had reviewed our figures and that the Company could now offer an increase of 3.2% per year on wages and allowances with no trade offs over a term of four years. It was acknowledged MSS Security and the Union were considerably apart. However, the Union committed to take the offer away and discuss it with their members.” 5
[50] This evidence does not reveal that anything unusual in negotiations where issues are raised, a verbal response is provided with the promise to follow up in writing. Further, it is not unusual for continuation of an issue in bargaining be discussed, as in this case, at a later meeting.
[51] In the enquiry/debate stage of negotiations, it is not unusual for parties to put positions, seeks responses, clarify, express concerns, link matters, communicate outside formal meetings and carry over the same item from one meeting to another.
[52] In my view, in the overall matrix of bargaining negotiations, an assertion of the lack of meaningful communication supported by one specific example at one meeting (which is contested) and general contentions, is insufficient to demonstrate that an employer is not bargaining in good faith.
[53] In conclusion, United Voice has referred to paragraph 26 of Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia(Collieries’ Staff Division)[2012] FWAFB 1891 (Endeavour).
[54] I do not think it necessary to comment on paragraph 26 of Endeavour but to highlight paragraphs 32 and 33 which I find distinguishes the circumstances in that case with this present application. They are as follows:
“[32] The evidence in the present case is that in many respects the Company complied with the formal requirements of the bargaining process by participating in meetings and responding to proposals put by APESMA. However, on our consideration of the evidence as a whole, it was open to the Commissioner to conclude that the Company’s conduct was not such as to demonstrate a genuine endeavour to negotiate an agreement with APESMA. The Company has not previously had a collective agreement covering staff employees at the Mine and it is clear from the evidence that it would prefer not to have such an agreement at this time. The Company participated in the bargaining process but did not make any substantive contribution to the possible content of an enterprise agreement or put proposals of its own.
[33] In these circumstances it was open to the Commissioner, and appropriate on the evidence, to conclude that the good faith bargaining requirements envisioned by s.228(1)(d) were not being met by the Company in that it was not giving “genuine consideration” to the proposals being put by APESMA. In our view, it would have also been open on the evidence for the Commissioner to conclude that the requirements in s.228(1)(f) were not being met by the Company.”
[55] Finally in Endeavour, the Full Bench referred to the ABC case 6 in paragraph [31] which I consider more pertinent to the circumstances of this application:
[31] In the ABC case it was said that the determination of whether or not a negotiating party is “negotiating in good faith” may depend upon the conduct of the party when considered as a whole. The Full Bench gave the following example:
“... if a party is only participating in negotiations in a formal sense but not bargaining as such then they may not be “negotiating in good faith”. Negotiating in good faith would generally involve approaching negotiations with an open mind and a genuine desire to reach an agreement as opposed to simply adopting a rigid predetermined position and not demonstrating any preparedness to shift.”
[56] United Voice also referred to the judgment of Flick J at paragraph [41] in Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 (Endeavour) which I am sure the Employer does not quibble with but I fail to see how it advances the position of the Applicant in the context of the overall circumstances of this application.
[57] Having considered the full context of bargaining for the replacement enterprise agreement, I am, for the reasons set out above, not satisfied that the Employer is not meeting the good faith bargaining requirements. Accordingly, I must issue an order dismissing the application.
COMMISSIONER
Appearances:
Mr G Noble for the Applicant.
Mr R Levin for the Respondent.
Hearing details:
2013:
Perth
7 June.
1 Appendix A to application.
2 paragraph [5]
3 paragraph [8]
4 paragraph 15]
5 Exhibit R2
6 Public Sector, Professional, Scientific, Research, Technical, Communications, Aviation and Broadcasting Union v Australian Broadcasting Commission print L4605
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