Victorian Ambulance Union Incorporated v Health Select Pty Ltd T/A Health Select

[2021] FWC 1434

[2021] FWC 1434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Victorian Ambulance Union Incorporated
v
Health Select Pty Ltd T/A Health Select
(B2020/333)

COMMISSIONER YILMAZ MELBOURNE, 31 MARCH 2021

Application for a Bargaining Order.

[1] An application has been made by the Victorian Ambulance Union Incorporated T/AS Victorian Ambulance Union (VAU) pursuant to s.229 of the Fair Work Act 2009 (the Act) for a bargaining order in respect of enterprise bargaining at Health Select Services Pty Ltd (Health Select).

[2] The VAU has applied for bargaining orders and contends that Health Select “has failed and is failing to comply with the good faith bargaining requirements stipulated by section 228 (1)(a), (d), (e) and (f) of the Fair Work Act” 1 (the Act). The VAU seeks orders to facilitate bargaining.

[3] The VAU is a body corporate and a bargaining representative for employees covered by the Health Select Services Pty Ltd Enterprise Agreement 2010 which expired on 19 December 2013.

[4] Health Select initiated bargaining, when it issued the notice of employee representational rights on 28 October 2019 2. On 4 November 2019, VAU was appointed a bargaining representative on behalf of an employee of Health Select. VAU gave evidence that subsequently a further 7 Health Select employees had appointed VAU as their bargaining representative.3 During the hearing in cross examination Ms Moussa of VAU confirmed that with the resignation of one employee from Health Select, VAU had 7 remaining members.4

[5] The VAU gave evidence that there were five bargaining meetings: on 12 November 2019, 26 November 2019, 3 December 2019, 4 February 2020 and on 5 March 2020. 5 VAU submit that Health Select has refused to participate in further bargaining.

[6] Health Select submit that it revoked the issued notice of representational rights on 5 March 2020 and confirmed this by correspondence dated 2 September 2020 to all bargaining representatives and employees. 6

[7] Health Select contends that the VAU application for a bargaining order circumvents a majority support determination pursuant to s.236 of the Act, and due to the VAU representing less than 4% of Health Select employees, it is unlikely a majority support determination would succeed. 7

[8] Health Select has determined that it no longer wants to bargain for an agreement and formed the view that the majority of employees are happy to remain on the current expired agreement as it also intends to do. The correspondence of 2 September 2020 states that Health Select “withdrew from further negotiations for a new enterprise agreement, and Health Select declined to continue to navigate through the complex process of a new enterprise agreement”. 8

[9] The orders sought by the VAU against Health Select were:

•  For the VAU to service a consolidated log of claims in a table that also identifies outcomes sought;

•  That Health Select lodge with the Commission and serve on the VAU and other bargaining representatives a consolidated log of claims in the same form;

•  That the employer and employee bargaining representatives meet in the form of a conference with the Commission regularly; and

•  That the VAU maintains an update of the draft document that reflects the position reached at each bargaining meeting.

[10] The hearing in relation to the application took place on 23 November 2020 at which both parties appeared. Mr Malcolm Harding, Senior Counsel and Mr Nick White, Senior Associate with Gordon Legal appeared with Ms Alessandra Moussa, Senior Industrial Officer with the VAU who also provided a witness statement and gave oral evidence. Further witness evidence was provided by Mr Gary Bartram, an employee bargaining representative and VAU member, and Mr Matthew Coggin, an industrial officer of the VAU. The Respondent was represented by Mr Patrick Wheelahan Senior Counsel and Mr Nathaniel Ganeson Senior Workplace Relations Consultant Workplace Wizards. Ms Jeanette Cunningham, Managing Director and Mr Mark Ritchie, Principal Consultant of Workplace Wizards both provided a witness statement and gave oral evidence.

[11] Further submissions were tendered after the hearing.

[12] Both parties were granted leave for legal representation.

Relevant background

[13] Health Select is an employer in the non-emergency patient transport (NEPT) industry that has grown from 6 employees in 2005, to 176 employees with 9 branches and satellite sites across Victoria. 9

[14] The Health Select Services Pty Ltd Enterprise Agreement 2010 was approved on 13 December 2010 to operate from 20 December 2010 and the nominal expiry date was 19 December 2013.

[15] An internal working group made up of representatives from the city and regional branches, together with a management representative and an HR Consultant for Health Select was convened in mid-2018 which met and discussed how the Health Select Services Pty Ltd Enterprise Agreement 2010 could be modernised and updated. 10

[16] On 18 November 2018, an email from the Managing Director to all employees advised that it was working on a new draft of the enterprise agreement with the intention of approval through the Fair Work Commission. The email then invited all staff to contribute to its development through a dedicated EBA email address. 11

[17] The working group had a total of 12 telephone conferences between 15 April 2019 and 22 October 2019. 12

[18] The Notice of Employee Representational Rights (NERR) was issued by Health Select to employees on 28 October 2019.

[19] On 4 November 2019, an employee notified Health Select that he had appointed VAU as his bargaining representative.

[20] The first bargaining meeting included representation from VAU on 12 November 2019. The second meeting occurred on 26 November 2019 and the third meeting occurred on 3 December 2019.

[21] On 5 December 2019, the Managing Director of Health Select sent an email to all staff attaching an overview of the EBA and proposed rates of pay with the purpose of voting to commence from 27 December 2019. The attached table was described as a comparison with competitor rates, which VAU challenged as being inaccurate. Health Select say it decided to allow employees to vote on the proposed agreement, despite VAU, employee bargaining representatives and Health Select not being able to agree on every item in the proposed agreement. Health Select advised all employees that bargaining had come to an end. 13

[22] On 23 December 2019, VAU applied for a bargaining order which resulted in an interim order on 31 December 2019. The vote for the agreement was stopped after VAU commenced the proceedings for good faith bargaining orders and interim orders were issued on 31 December 2019. A further interim order on 3 January 2020 which was subject to an appeal to stay the order and a final consent order issued on 21 January 2020. The file was closed on 20 February 2020. The appeal file was discontinued on 28 January 2020 after the order stayed all except one provision and after the parties reached agreement on the consent order.

[23] The first interim order was not subject to the Appeal and Health Select complied with the order by directing the ballot agent for the vote not to finalise, count or report the result of the vote that commenced until further order of the Commission. The interim order dated 3 January 2020 concerned statements that Health Select attributed to Ms Moussa of the VAU during the conference on 30 December 2019, which VAU say were misleading or untrue. The VAU had concerns that the statements made, if not addressed, would influence an outcome on the vote for the agreement. Despite the stay of the majority of the interim order of 3 January 2020 in connection with the appeal, the parties agreed to a consent order that included the retraction of 2 paragraphs containing statements by the Managing Director in her 2 January 2020 email to staff. The 2 January 2020 email from the Managing Director to all staff referred to the Fair Work Commission conference in December 2019 and attributed certain comments to Ms Moussa and the VAU, which the VAU say were untrue. 14

[24] On 2 January 2020, the Managing Director wrote to all employees thanking those involved in the bargaining process over the last 12 months, then proceeded to report on Commission proceedings and attached the Award rates of pay compared to the Health Select base rates while reminding employees to lodge their vote. Both the VAU and Mr Bartram expressed concern with this email on the basis that it did not accurately represent their understanding of the position of bargaining representatives. Health Select provided the Award rates of pay following its earlier inaccurate representation of what it considered industry competitor rates. 15

[25] On 9 January 2020, the Health Select HR Consultant emailed VAU and advised that in early 2020 the senior management team had engaged in strategic planning for the year ahead, and in assessing the “pros and cons of navigating through the complex process of a new enterprise agreement”, and in comparing the benefits of the existing enterprise agreement, that it made the regrettable decision to withdraw the draft EBA and “call time” on negotiations for a new agreement. Health Select confirmed that it had decided to withdraw from bargaining, declaring that the parties were at an impasse. 16

[26] On the same day, an emailed Update to employees from the Managing Director of Health Select advised that it determined to remain on the current agreement. 17 However, the Update attributes cost and delay including “legal manoeuvring” or “legal games” to the VAU as the reason for withdrawing from the EBA process.18 The Update contained various statements to the effect that the proposed agreement:

•  Was finalised in December 2019 to meet its commitment to deliver a new agreement before Christmas;

•  That problems with the VAU resulted in a delay to the vote due to “overlapping applications, requests for hearing and legal manoeuvres”;

•  That VAU had just confirmed that it was not a registered industrial organisation, and will therefore have significant practical and legal hurdles to prosecute its legal actions, and

•  That Health Select determined that the cost of fighting the legal issues was not worth it, so it determined to remain on the current expired agreement and spend its resources on the business and employees. 19

[27] On 24 January 2020 the Health Select Managing Director issued a further staff EBA Update and provided a copy to the VAU. The Update restated that that it faced legal challenges by the VAU and that the “legal actions and manoeuvrers” resulted in unbudgeted costs in the process, but indicated that it came to an agreed compromise to resume discussions to permit the VAU an opportunity to put their final position in response to their view that it had been denied the opportunity to do so. 20 Health Select advised that the Update was in satisfaction of the consent order. Health Select further advised it would circulate a wage comparison table as agreed between them and the VAU, and that they reached agreement to withdraw the appeal. The email concludes with the statement that “we will be recommencing EBA negotiations with the VAU and our employee bargaining reps shortly.”21 The email further makes reference to the stay decision stating that the original interim decision contained arguable error. VAU say Health Select’s characterisation of the consent orders is not as agreed, because it was not intended that the further meeting was for VAU to present its final position. VAU say the agreed consent order was intended that there be a further commitment to meet.

[28] The fourth meeting occurred on 4 February 2020. At 5.56pm the night before the fourth meeting, Mr Ritchie emailed the bargaining representatives and provided an updated copy of the proposed agreement and the progress chart. 22 In the cover email he states that in the event that all issues are not resolved, Health Select will likely retain its position that the parties are at an impasse.23

[29] On conclusion of the fourth meeting, parties had follow-up matters to be completed within a 2-week time frame. On 17 February 2020, the day materials were due, the VAU received an email from Mr Ritchie advising he would provide the required Health Select material by the end of the week. In response, Ms Moussa reminded Mr Ritchie of their obligations to disclose relevant material in a timely manner citing s.228(1)(b) and (c) of the Act. Further, she suggested an extension to the agreed deadline, a commitment to a further meeting and reserved their rights including to apply to the Commission for further orders. 24 Health Select sent through its material on 18 February 202025 and the VAU sent their material on 21 February 2020.26

[30] Ms Cunningham, Managing Director sent to the VAU a letter dated 21 February 2020 which detailed its understanding of the VAU and Health Select positions, and put VAU on notice that should the parties not reach in principle agreement at the next and final meeting scheduled for 5 March 2020, that it would withdraw from further negotiations. 27

[31] The Managing Director’s correspondence was followed with an email by Mr Ritchie to the bargaining representatives on 28 Feb 2020, confirming that 5 March 2020 was to be the final meeting and if no agreement was reached then the parties would be at an impasse. 28

[32] VAU concluded on receiving the material in preparation of the material for the 5 March2020 meeting, that it contained inaccuracies and was confusing to follow. It therefore concluded to file in the Commission a s.240 application to “improve the efficiency of the bargaining”. 29

[33] The fifth and final meeting of the bargaining representatives occurred on 5 March 2020. The parties failed to meet an agreed final position and VAH and Health Select left the meeting with different views of its outcome. Following the meeting, on the same day, Mr Ritchie wrote to the VAU stating that bargaining was at an impasse and it was exercising its rights per s.228(2) and has elected to remain on the current expired agreement 30.

[34] On 10 March 2020, Mr Ritchie wrote to Ms Moussa stating that they will have to agree to disagree on the state of bargaining and in terms of the s.240 application he confirmed that Health Select would not consent to a conference, therefore he suggested that the next logical step is a bargaining order application to deal with the significant dispute of whether bargaining was over or not. 31

[35] The application for the Commission to deal with a bargaining dispute 32 was listed for conference on 27 March 2020. VAU developed a document detailing their respective positions33 ahead of the conference. On 8 April 2020, Health Select confirmed with the Commission that it had not changed its position since 5 March 2020 and would not agree to arbitration. Having considered the position of the parties, on 17 April 2020, Deputy President Clancy wrote to the parties advising that there was no role for the Commission to usefully play in the s.240 application, and as such, he determined to close the file.

[36] Having been served the VAU notice of concerns on 28 April 2020, Health Select wrote to Ms Moussa on 5 May 2020 in response, rejecting that it breached the good faith bargaining obligations. 34 It stated that after the fifth meeting (and five months of bargaining) the parties were further apart than in early March 2020. Health Select referred to the impasse declared on 5 March 2020, the impact of the economic climate from both the bushfires and pandemic and stated that it was “nonsensical” that the parties are to continue to bargain until they reach agreement given how far apart they are. The VAU stated that the reference to impact of the pandemic on the business had not been raised before. The VAU stated that it does not agree with Health Select’s characterisation of the bargaining and state that it did not appropriately respond to its letter of concerns.

The Legislation

[37] The Act provides for applications to be made for bargaining orders with s.229(1) providing that a bargaining representative for a proposed enterprise agreement may apply for such orders under s.230. Subsections 229(4) and (5) provide the relevant procedural requirements for the making of a bargaining order 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.

Non-compliance with notice requirements may be permitted

(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.”

[38] Relevant to an application made under s.229(4)(a)(i) are the “good faith bargaining requirements” which are set out in s.228 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.

Note: See also section 255A (limitations relating to greenfields agreements).

(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.”

[39] Pursuant to s.230 a bargaining order may be made by the Commission if an application for the order has been made; the requirements of the section are met in relation to the agreement and “the FWC is satisfied that it is reasonable in all the circumstances to make the order” (s.230(1)). Further the Commission must be satisfied that there is authority for bargaining to have begun (s.230(2)). Section 230(3) provides requirements relating to the good faith bargaining requirements:

“(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.”

[40] Section 230(4) provides that an order issued under the section must be in accordance with s.231, which is in these terms:

“231. What a bargaining order must specify

(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

(d) such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

(2) The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:

(a) an order excluding a bargaining representative for the agreement from bargaining;

(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

(3) The regulations may:

(a) specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

(b) provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.”

Consideration

[41] It is evident from the material before me that the requirement in s.229(1) has been met. VAU have members employed by Health Select who would be covered by the proposed agreement. The timing of the application referred to in S.229(3) has been met, as the enterprise agreement has passed its nominal expiry date, and the requirements in s.229(4) has been met by VAU. The evidence in relation to s.229(4) is that VAU had given a written notice of its concerns that the good faith bargaining requirements have not been met or are not being met by Health Select (s.229(4)(a) and (b)).

[42] VAU sent notice on 28 April 2020 35 to all the bargaining representatives advising that it has concerns that Health Select has not met and is not meeting the good faith bargaining requirements under s.228(1) of the Act. The notice details its reasons for the s.240 application and its progress, it reports on the fifth bargaining meeting and Mr Ritchie’s statement after that meeting that bargaining was at an impasse. The VAU state that in light of Health Select’s refusal to attend any further bargaining meetings, that it is not meeting the good faith bargaining requirements.

[43] Pursuant to s.229(4)(c) bargaining representatives were given 7 days to respond to the concerns outlined in the letter. The VAU consider that it has met each of the requirements of s.229(4) and it has concerns that Health Select has not met good faith bargaining, that it has given notice of its concerns with a reasonable period to reply and further considers that Health Select had not responded appropriately to its concerns in accordance with s.229(4)(d) of the Act. Alternatively, VAU says that should s.229(4) not be satisfied, it relies on s.229(5) of the Act.

[44] The Managing Director responded to the notice of concerns on 5 May 2020. 36 This reply rejects all of VAU claims that Health Select has breached the good faith bargaining provisions. It states that after the fifth meeting and after giving genuine consideration to all claims put forward, the parties reached an impasse and “remained significantly apart”. It then proceeds to make reference to the change in the bargaining climate since its commencement but does indicate should the position improve it may revive bargaining negotiations.

[45] The response is consistent with previous positions held by Health Select when it rejected further bargaining and/or expressed an impasse on 9 January 2020, its withdrawal on 21 January 2020 and its declaration of maintaining the position of an impasse on 4 February and again on 5 March 2020. However, the exception in the language in the 5 March 2020 correspondence is the reference to the pandemic and bushfires as a contributing pressure on Health Select’s position.

[46] The response does not address its capacity to unilaterally withdraw from bargaining, and specifically it does not adequately address the VAU concerns that it refuses to meet to bargain according to the good faith bargaining requirements and VAU’s reliance on those provisions contained in s. 228 (1) (a) (d), (e) and (f). I do not consider that Health Select responded appropriately to the VAU letter of concerns and therefore in my view s.229 (4) of the Act has been met.

Observations concerning matters relevant to s.228 of the Act.

[47] In respect to s.228 of the Act, I have observed an apparent absence of trust and regard between the parties. The parties have been divided for some time which has led to various proceedings in the Commission. This application was made on 22 June 2020, and both parties indicated that they believe there is no value in conciliation, instead requesting that the matter be heard. Leading up to the arbitration, quite some time was set aside for the filing of materials and orders to produce were contested. It is fair to say the mistrust and lack of regard has added to a prolonged process and failure to result negotiations in a new enterprise agreement.

[48] Indicative of the lack of trust and regard is Health Select’s question of VAU’s legitimacy as a bargaining representative or at least its standing as a union of employees. This point was raised in all proceedings before the Commission including these. While not a federally registered employee organisation under the Act, VAU is a duly appointed bargaining representative. Much has been made of the fact that VAU represented 8 or 7 employees, however, the critical point is that VAU was entitled to represent its members that appointed it as their bargaining representative, whether it be one or more members. The point that VAU is a duly appointed bargaining representative was subsequently conceded by Health Select during proceedings.

[49] Another example where there was a lack of trust and regard is the description of VAU’s lateness to the 4 February 2020 meeting. Mr Ritchie described the lateness which was in his view an imposition and he suspected a “deliberate bargaining tactic”, 37 while Ms Moussa described the lateness due to roadworks etc and that her apology as she recalls was accepted.

[50] During the process of bargaining, the language used by Health Select to describe VAU’s involvement in bargaining in the Managing Director’s employee EBA Updates is misrepresented and this is inconsistent with its obligations pursuant to s.228(1)(f).

[51] The actions of Health Select to attribute comments or behaviour to the VAU, in my view was intended to create the perception that VAU was solely at fault for unreasonable delays and costs that were prohibitive to Health Select. Further, the reference to “legal manoeuvring and legal games” is in my view unfair conduct, and that behaviour also had the effect of undermining collective bargaining by denigrating and calling into question the VAU’s integrity. Such comments in emails to staff has the effect of discrediting the VAU and undermining the bargaining process.

[52] Mr Bartram gave evidence of the bargaining process and described his concern that Health Select were rushing through the process, he stated that he provided this feedback because he and other employee bargaining representatives struggled to digest the volume of materials, discuss in bargaining meetings and to properly consult. Mr Bartram also described his concern when it was announced by the Managing Director that the agreement would be put out to a vote before the bargaining representatives agreed on or signed off on the process. 38 The 3 December 2019 EBA Update referred to next steps, that being that the final draft is to be considered by the EBA Working Group on 13 December 2019, Mr Bartram confirms this did not occur, nor was this the agreed process at the end of the meeting held on 3 December 2019.

[53] While there was no evidence led by other employee bargaining representatives, I am satisfied by Mr Bartram’s evidence that the process hindered consultation with employees, and further, despite Health Select stating that bargaining had come to an end, the bargaining representatives were not of the same view. 39

[54] The VAU and Mr Bartram described and criticised the behaviour of Health Select and their representatives over the course of bargaining and during the bargaining meetings. Health Select also criticised the behaviour of VAU over the same period and their conduct during meetings. There is no need to replicate the criticism and evidence, it is sufficient to say that the failure to communicate next steps clearly (including the reversal of agreement to a further meeting), the failure to confirm the position of representatives on each claim before the conclusion of the meeting, the failure to timely place all claims on the table and not accurately capturing by way of notes the position of the parties had failed the negotiation process, and individually these examples represent poor practices. Furthermore, failing to genuinely consider claims or positions raised has fallen short of the good faith bargaining requirements. The evidence was contested on these points, and I have formed the view that through the actions or failure to act in some cases encumbered bargaining.

Had bargaining come to an end?

[55] Health Select called time on bargaining, stating that the parties had reached an impasse on 9 January 2020 (after the third meeting), again on 4 February 2020 it warned that should the outstanding matters not be resolved, its position is that there is a bargaining impasse, and on 5 March 2020 immediately following the fifth meeting it announced there was an impasse and it was exercising its rights to remain on the current expired award.

[56] As I have already stated, the parties walked away from the fifth and final meeting with different views on whether bargaining was still occurring or had come to an impasse. VAH gave evidence it could not provide its final position at the meeting as it required to consult with its members. Mr Bartram also gave evidence that the employee bargaining representatives understood they were still bargaining. I note that Mr Bartram elected to nominate VAU as his bargaining representative from 1 February 2020 (after the third bargaining meeting). Therefore, for the balance of the bargaining meetings there is no evidence from employee bargaining representatives, but equally there is no evidence that the other employee bargaining representatives do not wish to bargain.

[57] Further to Health Select’s position that the parties reached an impasse, it submits that the good faith bargaining application circumvents a majority support application. My view is that VAU is not required to pursue a majority support application as Health Select provided the NERR and initiated bargaining in October 2019. Section 237 of the Act confirms that the Commission must make a majority support determination if the application is made, and that the majority of the employees want to bargain, and the employer that will be covered by the agreement has not yet agreed to bargain, or initiated bargaining. Health Select both agreed and initiated bargaining, therefore a majority support determination is not required because Health Select determined it no longer wished to bargain. Otherwise, to suggest that a majority support determination is required where Health Select declared an impasse or determined that it would no longer bargain or that it revoked the NERR, it must be found that bargaining has come to an end or the NERR can be revoked. By declaring an impasse or refusing to bargain does not bring bargaining to an end.

[58] There is also a serious question regarding whether Health Select can revoke the NERR. The practical effect of Health Select revoking the NERR it provided to its employees, is to confirm that it does not wish to bargain for an enterprise agreement. Health Select is not seeking for the Commission to determine whether the NERR can be revoked by Heath Select; it contends it is a matter that need not be decided. Without fully considering this matter, my preliminary view is that the Act provides no capacity for an employer to revoke the NERR, and like Health Select with the objective of avoiding an appeal on a “novel point of law” I do not make a determination on this point.

[59] Health Select submit that “in light of the revocation of the NERR and the absence of a majority support determination by the Commission, the Commission cannot be satisfied of the requirements of section 230(2) of the Fair Work Act”. 40 I note that Health Select during the hearing did not press the point and asked that it not be determined whether the NERR can be revoked. I have already formed the view that a majority support determination is not required and therefore the remaining point is that Health Select does not want to bargain for a new agreement.41 Health Select rely on Deputy President Clancy’s decision to close the s.240 file in support of its position that the Commission should decline making orders, however, this application has no direct relevance to the outcome in the matter before the Deputy President.

[60] Fundamentally, the position of Health Select is to confirm that it no longer wishes to bargain and relies on s. 228(2) that the parties have reached an impasse and it concluded that it prefers to remain on the expired agreement. The provision of s.228(2) provides that concessions need not be made, however, Health Select’s position is not consistent with a decision to not make concessions, it has decided to no longer bargain and good faith bargaining principles “imposes an obligation on an employer to make reasonable efforts to make an agreement.” 42 Further, this is a different proposition to changing its position over the course of bargaining on claims which it considers in the interests of its own position - a point already made by the authorities that a bargaining representative might add or remove proposals during the bargaining process.43

[61] I am satisfied that VAU and Health Select employees wish to bargain, and there is no evidence that employee bargaining representatives have expressed a preference to remain on the expired Agreement, as has been submitted by Health Select. While the Managing Director, Ms Jeanette Cunningham, may assume only that the VAU wish to bargain, there is no evidence in support of her position that the majority of employees are “happy to remain on the current expired agreement”. 44 Mr Bartram disagrees with the Managing Director’s view, as his discussions with employees was that there was a preference to update the outdated clauses, update the agreement and to complete the bargaining process.45

[62] The evidence is that claims remained unresolved after the fifth meeting. VAU gave evidence that bargaining was ongoing and further meetings would be scheduled, particularly because parties had agreed to follow-up on items from the agenda and despite the ongoing threats from Health Select that it would withdraw. Health Select determined to report that negotiation had come to an end or had come to an impasse. Despite the first good faith bargaining application where the parties settled the dispute with a consent order, the approach to bargaining by Health Select, in my opinion subsequently remained largely consistent with the approach which led to the first application.

[63] I observe, the breakdown in the bargaining process does not all squarely fall on Health Select. Mr Ritchie gave evidence that VAU had not presented a log of claims at the first bargaining meeting and a complete log of claims was not submitted from VAU during the bargaining process. 46 While there are no hard and fast rules for bargaining, to ensure efficiency of process, it would have been appropriate for VAU to have provided their list of claims early in the process, knowing that the objective was to complete the bargaining before the end of 2019 and the first three meetings were organised in quick succession. The evidence from Health Select, which was not contested by VAU, was that it planned to conclude the bargaining process by late November to early December 2019.47 The evidence substantiated that the bargaining meetings were scheduled consistent with the EBA flow chart and dates. The evidence of Ms Moussa during the hearing was also revealing when she indicated that she understood that Health Select wanted VAU to put its final position,48 and she confirmed that the members it represents did not provide instructions to put the agreement to a vote or to take industrial action given that Health Select insisted that the parties had reached an impasse.49 Ms Moussa conceded that no evidence was provided of steps to bargain since the Deputy President closed the file and no evidence of further communication with the VAU members was provided.50

[64] Mr Ritchie described his interpretation of the position of the parties, particularly prior to the vote, stating that it did not appear to him that there was strong insistence for a further meeting from among the other bargaining representatives. It seems to me that VAU failed to strongly press for a further meeting or to adequately press its position regarding its list of claims. VAU had the opportunity and should have taken a more proactive position during bargaining.

[65] The parties described each other’s behaviour mode as combative. Health Select described Ms Moussa’s conduct as litigious in nature or argumentative and disorganised, while Mr Ritchie’s behaviour was described as cutting short discussion, interruptive and unreasonably hurried. Both Health Select and VAU had initially supported the objective of reaching an agreement, however, Health Select “checked out” of the process as early as 9 January 2020, (after the third bargaining meeting) according to the VAU. This shaped the subsequent meeting which appeared to the bargaining representatives that Health Select lacked a genuine approach and a more tense relationship between the parties followed.

[66] While it is accepted that Health Select need not agree to VAU’s claims, it should genuinely consider the claims, particularly those that VAU say relate to the BOOT and then to respond accordingly. Having considered the evidence relating to the bargaining process, Health Select in my view failed to take a reasonable, fair and genuine approach in the bargaining process by declaring an impasse after the third meeting and predominantly in respect to its apparent lack of consideration of the BOOT matters raised by VAU.

The application for orders

[67] The VAU submit that Health Select has not given genuine consideration to its proposals and they say this is demonstrated with the single one-line refusal to consider them on the basis of cost. The VAU state that it provided during the bargaining process items it considered were central to meeting the BOOT. Health Select referred to VAU’s BOOT issues as the big 3 which based on its own analysis was cost prohibitive. It is the big 3 issues among others that Health Select determined that the parties were too far apart to be able to reach agreement.

[68] Health Select gave evidence of the pressure of costs involved in bargaining along with other challenges arising from the bushfires and the pandemic which were not present when it first initiated bargaining. I note that the dispute over bargaining between the parties endured in 2020, and neither party saw any value in conciliation.

[69] With the passage of time and the relief from the scale of external and unforeseen events such as the COVID-19 pandemic and bushfires it is opportune that consistent with the objectives of bargaining that the parties reset and confer for the purpose of achieving a new agreement. VAU are seeking that bargaining get back on track and with the break from the 2020 pressures, Health Select may be in a less pressured position to re-evaluate the feedback from employees and bargaining representatives in the context of its business considerations and recommence bargaining afresh.

[70] Before making orders, I do find it reasonable in all the circumstances for orders to be made. While the parties met over the course of five meetings, I am not satisfied that Health Select and VAU actively participated and engaged in conduct conducive to good faith bargaining. Health Select did go further than to not agree, it refused to bargain by declaring an impasse and this declaration of an impasse threatened each subsequent meeting and set the scene for a refusal to bargain. Health Select’s submission that it had 18 months of working with employees to put together an EBA was not supported by the evidence and its submission that a number of staff supported Health Select’s position was also not supported by the evidence. 51

[71] The BOOT issues raised by VAU were overtime, availability allowance, shift allowance and rest/ meal breaks and while Health Select gave evidence that it considered that the margin on pay rates would be enough to pass the BOOT, in light of my decision to issue orders, Health Select may use the opportunity to re-evaluate its costings and its offer before the recommencement of bargaining. VAU should also re-evaluate its claims to clearly and concisely present them to Health Select prior to its next scheduled meeting. Individual employee bargaining representatives should also do the same.

Conclusion

[72] Health Select commenced the bargaining process after having received feedback from employees in regard to the 2010 expired agreement. This process together with Health Select’s amendments identified improvements and updates and should remain the starting point for the renewed bargaining process. I also encourage the parties to turn their mind to meeting the BOOT. I recommend that the parties come to the bargaining meetings with an open mind, to actively participate by clarifying in writing their full suite of claims, that the parties actively engage during the meeting, and to confirm where it agrees or does not agree to each claim. Further, should there be a need for a bargaining representative to consult before committing to a position on a claim, that reasonable time be allocated to allow for consultation before confirming its position, keeping in mind that consultation is to be prompt in order to meet the agreed timeframes.

[73] The VAU tendered draft orders and I have considered it. These orders are not an opportunity to start all over again, rather, this is a recommencement of bargaining. This means it is not an opportunity to ignore the groundwork and agreement already achieved, unless during the course of the bargaining meetings the parties agree to do so. I also recommend that the parties engage without the need of the Commission initially. For the above reasons, I have determined to issue the following orders on the basis that I am satisfied that s.229 of the Act is satisfied and it is reasonable in the circumstances to issue an order.

[74] An order of the Commission, pursuant to s.231 will be issued in the following terms:

“ [1] Pursuant to s.230 of the Fair Work Act 2009 (Cth) (the Act), the Fair Work Commission makes the following orders:

1. Health Select must attend and participate in bargaining meetings with the VAU and employee bargaining representatives.

2. One week prior to the first meeting, each bargaining representative will confirm in writing its claims for a new agreement. Where appropriate, the bargaining representative may provide draft wording for the agreement.

3. At the meeting, the parties will work through each bargaining representative’s claims.

4. Health Select shall make notes of the meeting and distribute them. The notes shall list the claim and whether each bargaining representative agrees. If there is no agreement, it shall be noted whether further information is to be provided and distributed ahead of the next meeting, whether it will be subject to further discussion, if it requires consultation, if it is not agreed, or is withdrawn. The notes will be distributed within three days from the meeting and if a bargaining representative has a concern with the notes, then that concern is to be raised within two days of receipt by email to the bargaining representatives.

5. The matter shall be listed for report back conference before the Commission after the third meeting.

6. The proposed dates for meetings are as follows:

•  The first meeting to be held no later than Tuesday 27 April 2021

•  The second meeting to be held no later than Tuesday 11 May 2021

•  The third meeting to be held no later than Tuesday 25 May 2021

•  The fourth meeting held no later than Tuesday 15 June 2021

7. The report back conference before the Commission will occur no later than Thursday 3 June 2021.

8. This order shall come into operation on 31 March 2021 and cease to be in operation at the earliest of events stated in s.232(b).

9. Liberty is provided to either party to this matter to apply to the Commission for further or alternative orders or in relation to the recommendations in paragraph [73] and [74] of the Commission’s decision issued in relation to this matter.

10. This file shall remain open until 30 June 2021 or the date of a notice of discontinuance is lodged by VAU, whichever is the earliest.

COMMISSIONER

Appearances:

Mr M. Harding for the Applicant

Mr P. Wheelahan for the Respondent

Hearing details:

2020
Melbourne (Video by Microsoft Teams)
23 November

Printed by authority of the Commonwealth Government Printer

<PR727835>

 1 Applicants outline of submissions at [1].

 2 Statement of Alessandra Moussa at [5].

 3 Ibid at [6].

 4   Transcript at PN104 – PN105.

 5 Applicant’s outline of submissions at [11].

 6   Exhibit R1 at [31] and attachment JC-8.

 7   Respondent’s outline of submissions at [4] and [5].

 8   Exhibit R1 Attachment JC-8.

 9   Exhibit R1 Statement of Jeanette Cunningham at [4] and [5] and transcript at PN334.

 10   Exhibit R1 Statement of Jeanette Cunningham at [11] – [12].

 11   Exhibit A4 Statement of Gary Bartram attachment GB-1.

 12 Exhibit R1 Statement of Jeanette Cunningham at [13].

 13   Exhibit A2 attachment AM-5.

 14 Exhibit A2 at [41].

 15   Exhibit A4 attachment GB-11.

 16   Applicant’s outline of submissions at [8], Exhibit A2 at [33] and attachment to AM-4.

 17   Exhibit A2 at [33] – [38].

 18   Exhibit A2 attachment AM-10.

 19   Exhibit A2 attachment AM-10.

 20   Exhibit A2 attachment AM-11.

 21   Exhibit A2 at [43] and attachment AM-11.

 22   Exhibit A2 Attachment AM-12.

 23   Exhibit A2 at [48] and attachment AM-12.

 24 Exhibit A2 at [79].

 25   Exhibit A2 attachment AM-15.

 26   Exhibit A2 attachment AM-17.

 27   Exhibit A2 at [87] and attachment AM-16.

 28   Exhibit A2 at [99] and attachment AM-18.

 29   Exhibit A2 at [101] and attachment AM-19.

 30   Exhibit A2 attachment AM-20.

 31   Exhibit A2 at [105] and attachment AM-21.

 32   Exhibit R2 attachment AM-19.

 33   Exhibit A2 attachment AM-22.

 34   Exhibit A2 attachment AM-2.

 35   Exhibit R 1 attachment JC-6.

 36   Exhibit R2 attachment JC-7.

 37 Exhibit R2 at [57].

 38 Exhibit A425- at [29].

 39   Exhibit A4 at [25] – [37].

 40 Respondent’s outline of submissions at [7].

 41 Respondent’s outline of submissions at [8].

 42   Association of Professional Engineers, Scientists and Managers, Australia, The v BHP Coal Pty Ltd, BHP Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia, The,[2012] FWA 4435 at [71].

 43   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Cochlear Ltd (2012) 231 IR 1; FWA 5374 at [546].

 44 Exhibit R1 at [30].

 45 Exhibit A4 at [46].

 46   Exhibit R2 at [12] – [15].

 47   Exhibit A4 attachment GB-6. Email from Health Select containing flow chart with dates.

 48   Transcript at PN116 and PN166 – PN172.

 49   Transcript at PN149 – PN151.

 50   Transcript at PN160 – PN163.

 51   Transcript at PN 487 – PN 489.