Bargaining update – two recent decisions of the FWC on good faith bargaining and majority support determinations

5 June 2013
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Pro-Built Control Pty Ltd (B2013/705)

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was successful in obtaining bargaining orders under section 229 of the Fair Work Act 2009 (the FW Act) against Pro-Built Control Pty Ltd (Pro-Built).

The matter was heard before Commissioner Gooley, and much of the evidence was agreed to between the parties.

The dispute arose when the Respondent, Pro-Built, questioned whether the CEPU was a bargaining representative for any of the employees that would be covered by the new enterprise agreement that had been the subject of negotiations between the CEPU and Pro-Built.

Pro-Built failed to provide a notice of representational rights to some of its employees including casual employees who were CEPU members. Pro-Built did not consider that the CEPU was a bargaining representative because it contended that it was not obliged to recognise the bargaining representatives of certain casual employees because the Respondent anticipated that these employees would not be employed when the Agreement was to be made.

Pro-Built began to directly negotiate with some employees on 24 January 2013 and eventually provided these employees with a draft agreement.

On 4 February 2013, Pro-Built terminated the employment of four casual employees, all of which were CEPU members.

On 6 March 2013, the CEPU advised the company that it was a bargaining representative for one identified casual employee. Pro-Built's lawyers responded and asserted that as the casual's employment was soon to be terminated:

"he was not a person with whom our client will make an Enterprise Agreement within section 172(2)".

On 7 March 2013, the following day, the CEPU's casual employee was told his employment would be terminated the next day, because there was no further work for him. The employee gave evidence at the hearing that another casual electrician commenced work with the company.

On 8 March 2013, the CEPU sent an email to Pro-Built in which it advised that it had heard rumours that an agreement had been circulated to employees and that employees would be asked to vote on 12 March 2013. The CEPU sought the Respondent's response to these rumours.

Mr Dixon of Pro-Built confirmed that an agreement had been circulated and the employees would be voting on the agreement that day.

On 12 March 2012, Deputy President Gooley made an interim s 230 order which stopped Pro-Built from taking any further steps to approve the enterprise agreement. 

Decision

The CEPU's application sought three orders. First, that the members not be terminated; second, that if the member has been terminated, he be reinstated to his position and third, that the Respondent recognise that the Applicant is a bargaining representative for the agreement and meet with it and other bargaining representatives in all future negotiations.

Deputy-President Gooley held that Pro-Built had failed to bargain in good faith and noted that  on the evidence before her, the Respondent had failed to disclose relevant information to the CEPU on the basis that it did not believe it had to because the CEPU was not a bargaining representative.

In relation to the exclusion of casual employee from agreement making, Commissioner Gooley held that an employer "is not able to exclude from the bargaining process some employees because it forms the view that those employees will not be employed when the vote is taken". On this basis, Pro-Built was ordered to recognise the bargaining representative of each employee who is within the scope of the proposed agreement. Commissioner Gooley found that the CEPU was the default bargaining representative for its members under section 176 of the Act. The Respondent was ordered to provide to each bargaining representative a copy of the agreement that was circulated to employees within two days of the making of this order and to meet with the Applicant within seven days of the making of this order for the purpose of giving genuine consideration to any proposal put by the Applicant.

The CEPU did not succeed in obtaining orders 1 and 2, namely that the casual member not be terminated and be reinstated.  Pro-Built's representative, Mr Mannu denied that the dismissal of the five employees was connected in any way to the bargaining. Commissioner Gooley was unable to conclude that the casual employee was dismissed to prevent the union from having a role as a bargaining representative.

Media, Entertainment and Arts Alliance and Capricornia Newspapers Pty Ltd & Ors  (B2013/616)

The Media Entertainment and Arts Alliance (MEAA), represented by Maurice Blackburn, was successful in an application for ballot orders under section 236 of the Fair Work Act 2009 (Cth) on behalf of members at 15 APN Newspaper Pty Ltd publications.

At the hearing before Commissioner Spencer in Brisbane, the MEAA sought leave to amend its ballot order application to include two additional respondents - the Coffs Coast Advocate and the Tweed Daily News. The Respondent objected to the inclusion of the additional respondents on the basis of prejudice caused by their late inclusion in the application. Further, the Respondent objected on the basis that the Coffs Coast Advocate and the Tweed Daily News should not be included in the application because the "application  focuses on regional daily newspapers and making a collective agreement for those entities that publish the regional daily newspapers". The Respondent argued that the additional two applicants do not publish daily newspapers. Commissioner Spencer accepted the MEAA's amended application and allowed the application to proceed.

At the heart of the dispute between the parties was whether the evidence indicated that there was majority support for a single enterprise agreement. The MEAA submitted that a petition showed that up to 188 of the 408 employees supported bargaining and that as a result of recent organisational changes, including restructuring and redundancies, it was difficult for the MEAA to locate and contact its members to obtain information. The MEAA sought that the Commission resolve the issue by ordering a secret ballot by the Australia Electoral commission in order to determine if a majority of members want to bargain. 


The Respondent objected to the secret ballot on the basis that there was no majority support for the ballot in that  the group was not fairly chosen under section 237 of the Fair Work Act because the MEAA had included senior editors of regional daily newspapers, which are excluded under the Journalists Published Media Award 2010.

The MEAA responded that the question of the inclusion of this particular occupational group in the scope of the agreement was an issue that should be left for the bargaining rather than the majority support determination.

Commissioner Spencer made an ex tempore decision and issued the ballot in the terms sought by the Applicant, save for costs of the AEC ballot which would be met by the tribunal.

 

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