Note: An appeal pursuant to s.604 (C2012/5419) was lodged against this decision - refer to Full Bench decision dated 12 February 2013 [[2013] FWCFB 968] for result of appeal.
[2012] FWA 7238 |
|
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
Australian Municipal, Administrative, Clerical and Services Union
v
Linfox Armaguard Pty Ltd
(B2012/1257)
VICE PRESIDENT WATSON |
MELBOURNE, 3 SEPTEMBER 2012 |
Application for a bargaining order - recognition of bargaining representative - whether Transport Workers Union of Australia capable of being bargaining representative - whether employees eligible to belong to Transport Workers Union - whether employer in breach of good faith bargaining requirements - Fair Work Act 2009 ss.176, 228, 229, 230.
Introduction
[1] This decision concerns an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a bargaining order pursuant to s.229 of the Fair Work Act 2009 (the Act). The orders are sought in relation to Linfox Armaguard Pty Ltd (Armaguard). The ASU seeks an order that Armaguard cease recognising the Transport Workers’ Union of Australia (TWU) as a bargaining representative and exclude it from the bargaining process in relation to the negotiations for a proposed agreement covering certain non-driving employees in its metropolitan Brisbane operations.
[2] At the hearing in Brisbane on 17 August 2012, Mr Rich appeared on behalf of the ASU, Mr Carter appeared on behalf of the TWU. Armaguard did not appear but filed a written submission prior to the hearing. 1
Background
[3] Armaguard is a division of the Linfox Group and operates a currency management business that includes ATM Services, currency processing, transportation of cash and precious cargo and servicing vending machines. Its Brisbane depot is located in the southern suburb of Murarrie and services the Brisbane metropolitan market.
[4] There are two enterprise agreements applying to employees engaged at this facility. The Armaguard and Transport Workers Union Queensland Metropolitan Branches Road Crew and Associated Areas Collective Agreement 2010 2 (the Road Crew Agreement) covers (as the name suggests) road crew that operate from the Murarrie facility. Approximately 100 employees are covered by the Road Crew Agreement. The Armaguard Queensland Metropolitan Clerical Employees Certified Agreement 2005-20113(the Clerical Agreement) covers employees employed at the Murarrie facility in operations known as the ‘coin room’, the ‘cash room’ and ‘receipt and despatch’. The TWU has historically been the only union involved in negotiating the Road Crew Agreement. The ASU has historically been the only union involved in the negotiation of the Clerical Agreement.
[5] In or around late June 2012 the ASU notified Armaguard of its intention to commence negotiations for an agreement to apply at Armaguard’s Queensland branches. An initial meeting date was scheduled for 12 July 2012. Prior to the meeting Armaguard disclosed to the ASU that the TWU would be attending the meeting. The TWU asserts that it has four members employed in the coin room and three members who are employed in the receipt and despatch area who are either staff employees or covered by the Road Crew Agreement.
[6] Armaguard agreed to bargain with both the ASU and TWU in relation to an enterprise agreement to replace the Clerical Agreement. The 12 July negotiation meeting was ultimately cancelled to enable the ASU to resolve concerns it had raised in relation to the TWU’s right to represent employees to be covered by the replacement agreement.
[7] On 4 July 2012 the ASU wrote to Armaguard disputing the TWU’s status as a bargaining representative in relation to the replacement agreement. 4 The ASU requested that Armaguard not permit the TWU to attend the negotiations.
[8] On 10 July 2012 the ASU wrote to the TWU contending that the TWU could not be a bargaining representative for the purposes of negotiation of the replacement agreement. 5 The ASU asked that the TWU confirm it would not be seeking to bargain in relation to the replacement agreement. Further correspondence was sent by the ASU to the TWU on 16 July 2012 notifying the TWU of its intention to commence proceedings in Fair Work Australia pursuant to s.229 of the Act if the TWU did not respond by 18 July 2012.
[9] The TWU responded in a letter dated 18 July. It contended that it had members it was entitled to enrol in the receipt and despatch of cash and coin and that it intended to act as bargaining representative for the agreement.
[10] The application in this matter was made on 20 July 2012.
The relevant legislation
[11] Section 176 of the Act provides that an employee organisation is a bargaining representative of an employee who will be covered by an enterprise agreement if the employee is a member of the organisation and has not appointed another person to be his or her bargaining representative for the agreement or expressly revoked the status of the organisation as his or her bargaining representative.
[12] The good faith bargaining requirements are set out in s.228 of the Act which provides:
“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.”
[13] The ASU contends that Armaguard is not meeting good faith bargaining requirements in s.228(1)(a), (c), (d), (e) and (f).
[14] Section 230 of the Act provides the circumstances whereby Fair Work Australia may make a bargaining order:
“230 When FWA may make a bargaining order
Bargaining orders
(1) FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a) an application for the order has been made; and
(b) the requirements of this section are met in relation to the agreement; and
(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2) FWA must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b) a majority support determination in relation to the agreement is in operation;
(c) a scope order in relation to the agreement is in operation;
(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3) FWA 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
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”
The basis of the application and the questions for determination
[15] The ASU submissions in this matter involve a chain of reasoning. It first submits that the employees engaged to perform work in the coin room and the cash room are ineligible to belong to the TWU. It then submits that it follows that the TWU cannot be a bargaining representative of the employees in question. It further submits that as a consequence of recognising an entity in the negotiations which is not a bargaining representative under the Act, Armaguard is acting in breach of the good faith bargaining requirements in the Act.
[16] The ASU also submits that regardless of the conclusion regarding TWU eligibility, the bargaining orders should be issued on the basis that representation and good faith bargaining will be prejudiced if Armaguard recognises the TWU as a bargaining representative.
[17] The three links in the chain of reasoning need to be considered sequentially.
Are the employees eligible to belong to the TWU?
[18] This question involves a construction of the meaning of the eligibility rule of the TWU and an application of that interpretation to the circumstances of this case - by reference to the nature of the role and responsibilities of the relevant employees and the business of the employer. 6 Eligibility rules of organisations need to be construed broadly - based on the ordinary and popular denotation of the words used rather than a narrow or formal construction.7
[19] The eligibility rule of the TWU, is relevantly as follows:
“(A) (1) The union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling and /or vocations, and/or industrial pursuits of:
(a) The transport of persons and/or passengers, and/or goods, wares, merchandise, or any material whatsoever, by or on vehicles or animals or by aircraft or by motor, steam, oil, electric or other mechanically-propelled contrivances; drivers, assistants and conductors of same, and stable work wheresoever performed, including the work of attendance on horses and other beasts of burden, whether in stables or otherwise; all yard and garage cleaning and other work in connexion with driving and transport, including, washing, greasing, oiling, cleaning, polishing, tyre-fitting and general attendance on horse or mechanically-propelled vehicles and mechanical contrivances, training and breaking-in of horses, loading and unloading on to and/or from any vehicle; shunting by horse-power, supervising and collecting moneys, or washing cans in connexion with the distribution of milk, working in pits, tarring and washing pans, ploughing in of night soil, digging trenches and burying soil in connexion with sanitary work, ploughing in conjunction with the construction and excavation of earthworks; and...”
[20] It is well established that the TWU rule is a hybrid rule which deals with industries of the employer as well as occupations of employees. 8 It is also well established that the words “in or in connection with” very considerably widen the scope of a rule which utilises such a phrase.9 Whether construing the scope of the industry aspects of the rule or the relevant occupations, it is necessary to characterise the substantial character of the business or occupation as the case may be. In respect of industries and the description “in or in connection with” it has been held that an operation can be described in a number of different ways, and the fact that it can be described in one manner does not mean that it cannot fall within another description.10
[21] The TWU relies on the industry references in its rules to “the transport of goods, merchandise, or any material whatsoever, by or on vehicles...” and the occupational references to “other work in connexion with driving and transport, including...loading and unloading on to and/or from any vehicle...” It submits that the industry references adequately cover Armaguard and its parent company Linfox and the occupational references cover the employees in the cash room and the coin room.
[22] The ASU submits that notwithstanding its history, Armaguard’s main business is now currency management and the substantial character of its business is not that of a company in the transport industry. In the alternative the ASU submits that Armaguard is involved in two industries and that the employees engaged in the cash room and the coin room are engaged in the cash management industry. The ASU submits that employees predominantly engaged in a clerical and administrative capacity in the cash room and the coin room do not fall within the occupational aspects of the TWU’s rules.
[23] Armaguard did not make any submissions on this point other than to indicate appreciation of clarification of the issue and submitting that it is essentially a matter for the two unions to resolve.
[24] I first consider the industry aspects of the rule. This requires an analysis of the business of Armaguard. The evidence before me includes an extract from the Armaguard website which describes Armaguard’s services as follows:
“Armaguard Services
Currency Management is controlled centrally at Armaguard Head Office and provides cash forecasting, ordering and cost optimisation for ATMs and financial institution branches. Currency Management options include full accounting reconciliation for ATMs, cardholder dispute resolution advice and ATM funding (both for cash and hardware).
Armaguard provides complete reconciliation and various settlement options for a broad range of different types of customer requirements. All reporting is designed to provide complete, accurate and relevant information which streamlines reconciliation to financial systems. Product options such as Armaguard “Prime” and “Part Prime” processes are designed to cut the costs of handling cash for customers.
The high speed equipment used in Armaguard processing centres is integrated into the cash management system. Significant investment has been made to develop a state of the art currency management system.
Armaguard provides an End to End ATM service that creates the best value for our customers by reducing the total cost of ownership and increasing end-user satisfaction. Armaguard’s End to End ATM management extends from the ATM hardware decision, through installation and cash provision to monitoring, maintenance and eventual replacement.
Measured by ATM availability, our aim is to provide a superior total service that meets our customer’s requirements of having cash accessible anytime, anywhere.
The experience of our own people together with key strategic partnerships has enabled Armaguard to be Australasia’s only true provider of total ATM solution in the region.” 11
[25] The website extracts contain the following references to ATM replenishment services:
“Replenishment Services
Armaguard provides a secure cash replenishment service. At our Currency Processing Centre, cash is pre-packed into exchange cassettes and at the time of replenishment, our qualified personnel replace the cassettes in the ATM with the exchange cassettes. The replenishment service includes end-of-day settlement, replacement of consumables and light cleaning.
The removed cassettes are returned to our Currency Processing Centre where the cash is counted, reconciled and deposited into a nominated bank account. This service is provided for all types of ATMs, from full function units through to smaller merchant ATMs.
Armaguard provides full accounting reconciliation for ATMs, management of cardholder disputes, and funding for ATMs, both for cash and hardware.” 12
[26] It is clear that Armaguard’s business is much broader than the transportation of cash. The notion of end to end ATM services involves hardware decisions, replenishment, line maintenance, cash handling, cash transportation, currency management, funding, reconciliation and reporting. The Murarrie facility is a high security operation operating as a depot for the fleet of armoured vehicles and a Currency Processing Centre for loading, unloading and processing the cash to be delivered to and from ATMs and financial institutions.
[27] Having regard to the description of ‘Replenishment Services’ set out above, I am of the view that much of the work at the Currency Processing Centre is integrated with the transportation of cash to the ATM for replenishment. The pre-packing of exchange cassettes and the reconciliation of removed cassettes on their return are functions with a close connection with the transportation of cash between the centre and ATM locations. Indeed, it is difficult to imaging the cash management services being provided independently of the transportation of cash. The transport of cash is a high security operation conducted by trained and armed security guards in purpose built vehicles. This is a highly specialised transport service. The vertical integration of other services arises from, and is highly dependent upon, the transportation function.
[28] While descriptions such as cash management could accurately be used to describe the Currency Processing Centre I also consider that the business conducted by Armaguard through its Murarrie Currency Processing Centre is in or in connection with the industry of the transport of goods and merchandise by or on vehicles. I find therefore that Armaguard operates in an industry falling within the TWU rules and employees of Armaguard employed in the Murarrie Cash Management Centre are eligible to belong to the TWU. It is not necessary that I consider whether the employees are eligible to belong to the TWU by virtue of the occupational aspects of the rule.
Other questions
[29] Given the conclusion I have reached in relation to the eligibility of employees at Murarrie to belong to the TWU, I turn to consider the remaining questions.
[30] My conclusion on eligibility means that it does not follow that the TWU is not a bargaining representative of the employees engaged at the Currency Processing Centre. Indeed, in relation to the members it asserts to have, and in the absence of any revocation of authority or alternative appointment, the TWU is the bargaining representative of those employees by virtue of s.176 of the Act.
[31] In these circumstances it becomes necessary to consider the alternative submission of the ASU that the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the Agreement. There have been no negotiation sessions between Armaguard and the unions. The session planned for 12 July 2012 was cancelled in the light of the ASU’s opposition to TWU involvement. Many negotiations occur with the involvement of more than one bargaining representative. The scheme of the Act appears to contemplate such a process. Neither the TWU nor Armaguard submit that there is any difficulty in the bargaining process commencing and proceeding in the normal way. I find that the ASU has not established that the precondition for an order in s.230(3)(a)(ii) exists.
Conclusions
[32] For the reasons above I find that the employees in question employed in clerical and administrative functions at the Murarrie Cash Management Centre are eligible to be members of the TWU and the TWU is a bargaining representative of its members employed in those activities. The ASU has not established a necessary precondition for the making of a bargaining order in s.230(3). The ASU application is dismissed.
VICE PRESIDENT WATSON
Appearances:
A. Rich for the Australian Municipal, Administrative, Clerical and Services Union
A. Carter for the Transport Workers’ Union of Australia
Hearing details:
2012.
Brisbane.
17 August.
1 Exhibit A1.
2 AE884646.
3 Exhibit R5.
4 Exhibit R4.
5 Exhibit R6, Attachment B.
6 Eg R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415.
7 R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577.
8 Transport Workers’ Union of Australia v Qantas Airways Ltd [1985] 11 IR 145.
9 R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323 at 335.
10 Ibid at p332-3.
11 Exhibit C1, Annexure PF-2.
12 Ibid.
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