[2010] FWAFB 1714 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 3 MARCH 2010 |
Appeal – protected action ballot orders – single interest employer authorisations – scope of proposed agreements in issue between the parties – whether bargaining representative genuinely trying to reach an agreement – extension of time – permission to appeal – Fair Work Act 2009 ss. 172, 178(5)c), 238, 247, 249 and 443(1)(b).
[1] Although these matters have a lengthy history, it is sufficient to record only the facts directly relevant to these proceedings. On 23 October 2009 the Minister for Employment and Workplace Relations (the Minister) made single interest employer declarations under s.247 of the Fair Work Act 2009 (the Fair Work Act) for two groups of employers in the Catholic sector of the education industry in Queensland. The first group is comprised of 5 diocesan employing authorities and one religious institute employing authority. The second group is comprised of 17 religious institute employing authorities. These proceedings concern a number of appeals lodged on behalf of these two groups. The appeals on behalf of the first group were lodged by the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane. The appeals on behalf of the second group were lodged by the Stuartholme School. Noting that the list of employers named in the Minister’s declarations was subsequently amended, for convenience we shall refer to these two groups collectively as the appellants. Together the appellants employ staff in a large number of schools in Queensland. The Independent Education Union of Australia (IEUA) is a bargaining representative for the staff and the respondent to the appeals.
[2] On 9 November 2009 Senior Deputy President Richards made two single interest employer authorisations under s.249 of the Fair Work Act – one authorisation in relation to each group of appellants. 1 At all relevant times, and notwithstanding the single interest employer declarations and authorisations, the IEUA has pursued the objective of negotiating separate agreements with each of the employing authorities. So it is that at one extreme the appellants have been negotiating for two separate enterprise agreements, while at the other extreme the IEUA has been negotiating for 23 separate agreements.
[3] The appeals have been lodged against two decisions made by Senior Deputy President Richards concerning protected action ballots. The first decision was made on 10 December 2009. The second decision was made on 18 January 2010.
[4] On 8 December 2009 the IEUA made applications for protected action ballots of the employees of each of the appellants. On 10 December 2009 Senior Deputy President Richards issued a decision granting the IEUA applications and made 37 protected action ballot orders. 2 On 18 January 2010 the Senior Deputy President made fresh orders3 which altered the operative date of the orders made on 10 December 2009 but which were otherwise relevantly identical to those orders. The appeals against the two decisions were lodged on 8 February 2010. Rule 12.3(a) of the Fair Work Australia Rules 2009 requires that an appeal be lodged within 21 days. The appeals against the orders of 10 December are therefore 38 days out of time and the appeals against the orders of 18 January 2010 were filed within the 21 day time limit. It is clear that the relevant decision was made on 10 December 2009. The decision of 18 January 2010 was concerned only with operative date and not with the question of whether protected action ballot orders should be made. The alteration in operative date was not opposed by the appellants, indeed they may have supported it. The appeals are directed at the decision to grant the ballot orders. That decision was made on 10 December 2009. It follows that the appellants require an extension of time within which to lodge their appeals pursuant to rule 12.3(b).
[5] The approach taken by the Australian Industrial Relations Commission to applications for an extension of time within which to appeal was summarised in Re Advanced Australian Workplace Solutions in the following passage:
“The cases show that, in exercising the discretion in rule 11(2)(c), the Commission should take into account whether there is a satisfactory reason for the delay, the length of the delay, the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was to be extended: Meat and Allied Trades Federation v AMIEU (1990) 35 IR 25 at p.26; The National Rail Enterprise Agreement 1993, 1 December 1993 [Print L0238 at pp. 11-12]; Shop Distributive and Allied Employees Association v OPSM Pty Ltd, 2 July 1998 [Print Q2858]; Section 109 Reviews Decision, 12 March 1999 [Print R2700 paragraphs 17-24]. Any prejudice the respondent might suffer if time were extended because of developments after the time for lodgement had expired would also be relevant.” 4
[6] In this case, the reason for the delay in filing is said to be related to the school holidays and the unavailability of relevant people to give instructions for the appeals. The explanation is thin given the seriousness of the ballot applications and the potential for the school operations to be disrupted if the employees authorised industrial action. While a delay of 38 days is not inordinate it is nevertheless very substantial. In the circumstances we would not be inclined to extend time, even though it is alleged that the main issue on the appeal is a jurisdictional one, unless persuaded that there is a real likelihood that the appeal would succeed. It is appropriate therefore to examine the grounds upon which the appeal is based. We shall deal first with the statutory provisions.
[7] Pursuant to s.172 of the Fair Work Act three types of agreement may be made. Single-enterprise agreements, which are described in s.172(2), multi-enterprise agreements, which are described in s.172(3) and greenfields agreements, which are described in s.172(4). Section 172(2)(a) is of particular relevance in this case. It reads:
“Single-enterprise agreements
(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):
(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or…”
[8] A number of employers may make a single-enterprise agreement if they are single interest employers. Single interest employers are defined in s.178(5).
“Single interest employers
(5) Two or more employers are single interest employers if:
(a) the employers are engaged in a joint venture or common enterprise; or
(b) the employers are related bodies corporate; or
(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.”
[9] Section 178(5)(c) provides that employers are single interest employers if they are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned. Single interest employer authorisations are dealt with in ss.249 to 252 of the Fair Work Act. Where relevant s.249 reads:
“249 When FWA must make a single interest employer authorisation
Single interest employer authorisation
(1) FWA must make a single interest employer authorisation in relation to a proposed enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) FWA is satisfied that:
(i) the employers that will be covered by the agreement have agreed to bargain together; and
(ii) no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and
(c) the requirements of either subsection (2)(which deals with franchisees) or (3)(which deals with employers that may bargain together for a proposed enterprise agreement) are met.
…..
Employers that may bargain together for the agreement
(3) The requirements of this subsection are met if FWA is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.
Operation of authorisation
(4) The authorisation:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation at the earlier of the following:
(i) the day on which the enterprise agreement to which the authorisation relates is made;
(ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.”
[10] Section 249(1) makes it mandatory for Fair Work Australia to make an authorisation if it is satisfied of certain things. Section 249(3) makes it mandatory for Fair Work Australia to make an authorisation if is satisfied that the employers are specified in a declaration made by the Minister under s.247. Section 247 should be set out in full.
“247 Ministerial declaration that employers may bargain together for a proposed enterprise agreement
Application for declaration
(1) Two or more employers that will be covered by a proposed enterprise agreement may apply to the Minister for a declaration under subsection (3).
Note: Employers named in a declaration may apply for a single interest employer authorisation (see Subdivision B of this Division).
(2) The application must specify the employers (the relevant employers) that will be covered by the agreement.
Declaration by the Minister
(3) If an application is made under subsection (1), the Minister may declare, in writing, that the relevant employers may bargain together for the agreement.
(4) In deciding whether or not to make the declaration, the Minister must take into account the following matters:
(a) the history of bargaining of each of the relevant employers, including whether they have previously bargained together;
(b) the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together;
(c) whether the relevant employers are governed by a common regulatory regime;
(d) whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;
(e) the extent to which the relevant employers operate collaboratively rather than competitively;
(f) whether the relevant employers are substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory;
(g) any other matter the Minister considers relevant.
(5) If the Minister decides to make the declaration, the relevant employers must be specified in the declaration.
(6) A declaration under subsection (3) is not a legislative instrument.”
[11] It should be remembered that in this case the Senior Deputy President was considering whether to make protected action ballot orders in circumstances where the Minister had made two single interest employer declarations under s.247, Fair Work Australia had made two single interest employer authorisations under s.249 and the appellants and the IEUA were in dispute as to the number of enterprise agreements which should be made. The appellants were seeking two agreements, one to apply to all of the employees of each group of appellants as described above, while the IEUA was seeking 23 separate agreements, a separate one for the employees of each of the different employing authorities. Fair Work Australia’s power to make a protected action ballot order is in s.443 of the Fair Work Act. Section 443(1) reads:
“443 When FWA must make a protected action ballot order
(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”
[12] The relevant part of s.443 is paragraph (1)(b) and the question for decision concerns the meaning and application of the expression “genuinely trying to reach an agreement”. In the proceedings before the Senior Deputy President in December last year there was material indicating that the IEUA was attempting to reach agreement with the appellants although it was common ground that there were clear differences between the appellants and the IEUA as to the scope of the agreements. When asked by the Senior Deputy President if there was any reason he should not be satisfied under s.443(1)(b) that the IEUA was genuinely trying to reach agreement, the appellants made no submission to the contrary. In the appeals, however, they submitted that the Senior Deputy President should not have been satisfied that the union was genuinely trying to reach agreement with the employers. They argued that bargaining had not commenced because the appellants and the union were in dispute as to whether two enterprise agreements should be made or whether there should be 23 agreements.
[13] The appellants seek to rely upon Ford Motor Company of Australia Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and others 5(Ford) as authority for the proposition that protected industrial action in support of an enterprise agreement cannot be taken until bargaining for that agreement has commenced and that bargaining cannot be said to have commenced until the precise scope of the employees to be covered by the agreement is settled. It follows, it was submitted, that in this case bargaining had not commenced and therefore the Senior Deputy President could not have been satisfied that the IEUA was genuinely trying to reach an agreement. The appellants contend that this argument only became available when Ford was published on 11 December 2009. They concede, however, that they did not raise the issue before the Senior Deputy President in the proceedings on 18 January 2010. Indeed, the point was not raised until the appeals were filed, as we have noted, some 58 days after Ford.
[14] At the heart of the appellant’s case is a particular view of the operation of the provisions concerning single interest employer authorisations. That view is, in summary, that if a single interest employer authorisation is made under s.249 of the Fair Work Act the only bargaining which may take place, while the authorisation is in force, is for an agreement applying to all of the employers to whom the authorisation applies. Under that construction, no bargaining representative is able to bargain for an agreement with a scope other than that in the authorisation while the authorisation remains in force.
[15] The appellants seek to support this construction by reference to the terms of s.238 of the Fair Work Act. Section 238 deals with the power of Fair Work Australia to make a scope order. Section 238(2) provides that a bargaining representative, otherwise entitled to make application for a scope order, may not do so if there is a single interest employer authorisation in operation in relation to the proposed agreement. It was submitted that this provision indicates that the scope of the proposed agreement is defined by the single interest authorisation.
[16] In our view there is no indication in the relevant statutory provisions that the legislature intended that a single interest employer authorisation should define the scope of bargaining and that a bargaining representative who argues for a different scope is necessarily not genuinely trying to reach an agreement. The principle purpose of an authorisation is to permit a group of employers to do what the Fair Work Act does not otherwise permit and that is to bargain together for one enterprise agreement to apply to all of them. Section 247(3) indicates that the declaration is to the effect that employers specified in the declaration may bargain together and there is no basis for reading may as meaning must in this context. We also draw attention to the use of the word “authorisation” in s.249 and the following sections. That word connotes permission rather than compulsion.
[17] Looked at from a policy perspective, the construction that the appellants contend for would give the Minister a wide power to determine the scope of bargaining. An administrative decision to issue a single interest employer declaration on the application of a group of employers would deprive all other bargaining representatives of the ability to argue for an agreement or agreements with different scope. The better view is that a single interest bargaining authorisation permits a group of employers to bargain for one enterprise agreement, but it does not exclude the possibility that an agreement or agreements may be made with a scope which does not reflect that arising from the authorisation.
[18] Thus the provisions dealing with single interest employer authorisations do not suggest that a bargaining representative cannot include issues in bargaining going to the scope of the agreement. This brings us directly to the decision in Ford. The relevant paragraph in the decision of the majority is as follows:
“[45] In our view the unions’ submissions have little regard for the scheme of the Act, in particular the matters to which we have referred in relation to how bargaining commences and between whom. In our view, those employees to be covered by the proposed agreement must be identified and known at all stages of the bargaining process. If an employer refuses to bargain at all, an application can be made for a majority support determination under s.237 and the employer can be compelled to bargain, and the provisions of s.173 come into play. Similarly, if bargaining has commenced and there are issues about the appropriateness of the employees proposed to be covered, a scope order can be made and again the provisions of s.173 are activated. Single interest and low-paid bargaining also requires that the employers and employees to be covered by the proposed agreement be identified.” 6
[19] The appellants wish to argue that this passage requires the conclusion that because the IEUA and the appellants were in disagreement as to the number and scope of the enterprise agreements to be made, bargaining had not commenced and the IEUA was not genuinely trying to reach an agreement. There are a number of difficulties arising from this passage.
[20] The first difficulty relates to the fact that the conclusion expressed was reached without reference to the single interest employer authorisation provisions with which we are directly concerned in this case. The conclusion is inconsistent with the conclusion we have arrived at independently based on the construction of those provisions.
[21] The second difficulty is that there is Full Bench authority, not referred to by the majority in Ford, which strongly suggests the scope of a proposed agreement can be a proper subject for bargaining under the Fair Work Act. In Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (Coca-Cola) 7 a Full Bench considered an appeal against the refusal of a member of Fair Work Australia to make a scope order. In the course of its decision the Full Bench noted that there was disagreement between the negotiating parties as to the scope of any agreement or agreements to be made. The situation is concisely set out in this paragraph:
“[32] Against this background, we turn to consider the competing interpretations of a s.237(2)(b) majority support determination, which arise because the LHMU and Coca-Cola have different bargaining positions as to the number and scope of agreements which should be made in relation to the relevant employees. The LHMU seeks a single agreement covering all employees, while Coca-Cola seeks three agreements covering various specified groups of employees. None of the agreements cover one small group of employees. There is a dispute as to the scope of the agreement or agreements to be made.” 8
[22] Despite the disagreement as to scope, there is no indication in the decision that because of that disagreement bargaining had not commenced. To the contrary, the Full Bench approached the appeal on the basis that a scope order might be applied for after bargaining had commenced. 9
[23] The third difficulty arises from the terms of s.238, which deals with scope orders. Section 238(1) is as follows:
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order) under this section if:
(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.”
[24] The terms of this section unambiguously suggest that bargaining may have commenced under the Fair Work Act even though the parties to the bargaining process are in disagreement about the scope of the proposed agreement.
[25] Given these difficulties we would not be inclined to adopt the reasoning of the majority in Ford. There is no reason why questions of scope cannot be included in bargaining in the context of a single interest employer authorisation and the mere fact that a bargaining representative puts scope in issue does not mean the bargaining representative is not genuinely trying to reach an agreement. This conclusion removes the basis for the appeals against the decision of 10 December 2009 and therefore we have concluded that those appeals would not succeed. In the circumstances we decline to extend the time for lodging the appeals against the decision of 10 December 2009.
[26] As we indicated earlier, the appeals against the decision of 18 January 2010 do not strike at the decision to make the protected action ballot orders. In case we are wrong in that view, it is important for us to indicate that, for the reasons we have given in relation to the appeals against the decision of 10 December 2009, we would not grant permission to appeal against the decision of 18 January 2010. All of the appeals are therefore dismissed.
PRESIDENT
Appearances:
G.Dann of counsel for Stuartholme School and the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane.
A.Herbert of counsel and J.Merrell of counsel for the Independent Education Union of Australia.
Hearing details:
2010.
Brisbane:
February 22.
1 [2009] FWA 1013, [2009] FWA 1014
2 See PR991705 and PR991709 and others.
3 See PR992532 and PR992535 and others.
4 Print S0253, 25 October 1999 at para 36.
6 Ibid.
8 Ibid.
9 ibid at para 51.
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