[2013] FWCFB 968

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FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian Municipal, Administrative, Clerical and Services Union
v
Linfox Armaguard Pty Ltd
(C2012/5419)

SENIOR DEPUTY PRESIDENT HARRISON

SENIOR DEPUTY PRESIDENT RICHARDS

COMMISSIONER BULL

SYDNEY, 12 FEBRUARY 2013

Appeal against decision [[2012] FWA 7238] of Vice President Watson at Melbourne on 3 September 2012 in matter number B2012/1257, application for bargaining orders, pre-requisites in s.230 not established, no error in decision to dismiss application.

[1] This decision concerns an appeal by the Australian Municipal, Administrative, Clerical and Services Union (ASU) against the dismissal by Vice President Watson of an application the ASU had made under s.229 of the Fair Work Act 2009 (the Act) for a bargaining order. The order sought by the ASU was that Linfox Armaguard Pty Ltd (Armaguard) cease recognising the Transport Workers’ Union of Australia (TWU) as a bargaining representative and exclude it from the “bargaining process of the Armaguard Queensland Metropolitan Clerical Employees Certified Agreement". It also sought an order that "Armaguard formally commence bargaining with the ASU".

[2] Before us the ASU was represented by Mr Campbell, the TWU by Mr Gibian and Armaguard by Mr Williams.

[3] We refer first to the background to ASU’s application. We adopt his Honour’s summary in this respect:

[4] We note that in a letter dated 17 May 2012 the ASU notified Armaguard of its intention to commence bargaining for an enterprise agreement. The terms of that letter are referred to later in this decision. Armaguard agreed to bargain with the ASU and also agreed to bargain with the TWU. A meeting was arranged for 12 July 2012 for the parties to have a discussion. When the ASU found out the TWU would be attending the meeting it raised an objection and requested Armaguard not allow the TWU to attend. The meeting scheduled for 12 July 2012 was cancelled by Armaguard to enable the ASU to resolve its concerns about the TWU’s participating in any meeting and the rights the TWU asserted it had to represent employees. The ASU had no objection to the meeting being cancelled. The ASU and TWU exchanged letters concerning the TWU’s entitlement to represent employees in bargaining. Other than what is said in a letter from the ASU to Armaguard (which we refer to later) the ASU made no further demands or requests of Armaguard. As at the time of filing for the orders there had been no meeting between the ASU and Armaguard to discuss any enterprise agreement.

[5] Armaguard did not appear at the hearing below. Prior to that date it had sent a letter to his Honour advising that the issue seemed to be one between the ASU and the TWU to resolve and that it would continue to deal with any properly appointed bargaining representatives in accordance with its obligations under the Act. It indicated that it opposed any order being made as it had acted in accordance with the requirements of the Act and on the reliance given to it by each of the unions that they were properly appointed bargaining representatives.

[6] We now refer to the terms of the ASU letter to Armaguard of 17 May 2012. In it the ASU advised its intention to commence negotiations to make "a collective agreement at Linfox Armaguard Queensland Branches". The letter indicated that the agreement was proposed to apply to and cover Armaguard, the ASU, and "All employees of Armaguard employed by Armaguard Queensland who are employed in Metropolitan and Country Queensland". It indicated it “would also like to arrange a time” to discuss the possibility of a single state agreement covering clerical employees in country branches and metropolitan Queensland.

[7] We return to his Honour’s decision. He described the issues before him in these terms:

The relevant provisions of the Act

[8] Before we turn to the grounds of appeal we should reproduce the relevant provisions of the Act. They are ss.228, 229 and 230.

The grounds of appeal

[9] We deal with the first two grounds together. The ASU submits that the conclusion reached by his Honour at paragraph [28] was in error. That paragraph is in these terms:

[10] The ASU submits that his Honour was in error in his characterisation of Armaguard’s business including that part of the business which dealt with the processing of cash. We are not persuaded any such error was made.

[11] In considering whether the employees were eligible to belong to the TWU his Honour identified the relevant legal principles concerning the approach to be taken to the construction of union eligibility rules. He referred to extracts from the rule of the TWU and noted that it was well established that the rule was a hybrid, dealing with both the industries of employers as well as occupations of employees. He also referred to the manner in which the words “in or in connection with” contained in the rule should be construed. He identified the competing submissions of the TWU and ASU as to how he should construe the rules and referred in detail to evidence before him describing the services provided by Armaguard. In this respect we note that it was only Armaguard’s business (not any of the other operating divisions of The Linfox Group) which was addressed by the parties. His Honour found that Armaguard's business was much broader than currency management which was the preferred description used by the ASU. We note the description of the activities of Armaguard at paragraphs [24], [25] and [26]. It was reasonably open on that evidence for his Honour to make the findings he did at paragraph [27] about the integration of work in the currency processing centre with the transportation of cash. In this respect he noted the packing of exchange cassettes and the reconciliation of those cassettes upon their return. The evidence also allowed him to identify what he described as the vertical integration of services which arose from, and were “highly dependent upon the transportation function”. We are of the opinion that the findings made by his Honour in paragraph [28], which we have reproduced earlier, were open on the evidence and reflect no appealable error.

[12] His Honour’s findings are consistent with the manner in which the TWU’s eligibility rule has been construed in the past and the application of the evidence before him to those rules. In this respect we note the evidence about the activities carried on by Armaguard was principally led by the TWU. We observe that even if the business of Armaguard could be characterised as being in the cash management industry that of itself would not mean that its business could not also be characterised as being in connection with the transport industry. In this respect the evidence was sufficient to establish a close functional and organisational relationship between the cash and coin rooms, receipt and dispatch and transportation.

[13] We should indicate that although the TWU also relied on the occupational aspects of its rules his Honour did not find it necessary to reach any conclusion about them. The application of those parts of the TWU rules to Armaguard’s business is not enlivened by the grounds of appeal and accordingly we do not propose to comment about them.

[14] Finally, we should note that it became apparent during the appeal that there was an additional reason why the conclusion reached by his Honour was correct. We have earlier noted the content of the letter dated 17 May 2012 sent by the ASU to Armaguard in which the ASU indicated it wished to commence bargaining for an enterprise agreement. The scope of the employees it identified would be covered was “All employees of Armaguard..........” There is no doubt that within that group of employees there would be ones engaged in or in connection with the transport industry. The scope of any proposed agreement itself could have been a matter for bargaining but, as we have noted, there had not been even one such meeting prior to the filing by the ASU of its application.

[15] We turn to the next ground of appeal. The ASU submits that his Honour erred in not enquiring further into whether the definition of goods and merchandise in the TWU rules included cash. We note that the one paragraph addressing this ground in the ASU’s written submissions does no more than repeat the ground of appeal.

[16] It appears that this challenge was not raised before his Honour nor was any suggestion made that he should have considered this aspect of the TWU rules. In oral submissions before us the ASU made no attempt to develop this ground and cited no authorities to support it. It is to be noted that the transport of precious cargo and cash has long been described as within the “cash-in-transit” sector of the transport industry and being within the TWU rules. If a genuine challenge was to be made to this understanding a more developed argument would have been expected. It is not a ground which warrants the grant of permission to appeal.

[17] Alternatively, even if we were to entertain this ground, given the paucity of submissions to support it we would do no more that adopt what the TWU said about it. That is, that the words “goods or merchandise” should be defined broadly and incorporate money. In any event, the term "or any material whatsoever” is sufficiently wide to encompass cash or money. In this respect we suspect it unlikely loose change would be collected without it being contained in some type of holder or receptacle. As an example, we note the evidence about the cassettes which are pre-packed with monies to be transported to clients and the receipt of those cassettes upon being returned to be reconciled. It is likely that the transportation of those cassettes would unarguably fall within the scope of the transportation of goods and/or merchandise and/or any material whatsoever.

[18] The next ground of appeal is that his Honour erred in not directing the appearance of Armaguard to answer threshold questions about its business and industry. The ASU said very little in support of this ground. It made no attempt to identify the evidence which it suggests would have been gained had any such direction been made.

[19] We are not persuaded this ground has any merit. We agree with the submissions of both the TWU 1 and Armaguard2 as to why that is so and we will only summarise them here. As we have earlier noted, prior to the hearing below Armaguard had forwarded a letter to the Vice President indicating its position and the fact that it did not intend to appear. The letter was marked as an exhibit by his Honour with the support of the ASU.3 The ASU did not suggest the evidence before his Honour in relation to the nature of Armaguard's business was incomplete or incorrect in any respect critical to the outcome of the proceedings. It did not ask for a direction that a witness from Armaguard attend nor did it make any application for an order requiring Armaguard to attend or to produce documents. Even now on appeal there has been no identification what the evidence may have been which would have made a material difference to any part of his Honour’s decision. In these circumstances we are not able to discern any appealable error raised by this ground.

[20] We turn to the next two grounds of appeal which can be dealt with together. The ASU submits that his Honour erred in making a decision beyond jurisdiction as he acted on the fact that the TWU had a member who would be covered by the proposed agreement and that fact did not exist. It submits his Honour erred in failing to provide adequate reasons for decision as to whether or not the TWU had members who would be covered by the proposed agreement.

[21] It is to be noted that the findings made by his Honour about TWU members are all made by reference to that which the TWU had asserted in its evidence and submissions. 4 These findings were all consistent with the evidence of Mr Ferguson, a TWU organiser. Although a reading of the transcript of his cross examination does raise some doubt exactly which employees these were and in which functions they were engaged we are not persuaded that he conceded the TWU had no relevant members. In final submissions the TWU again asserted it had members who may be covered by the proposed agreement. Having considered the evidence before his Honour we are of the opinion that he was entitled to reach the conclusions he did about relevant TWU membership.

[22] About these grounds of appeal we also agree with the submissions made by both the TWU and Armaguard that even if error had been established we would not be persuaded to grant permission to appeal. As the TWU submitted, even if there had been evidence the TWU did not in fact have, at that time, any members who would be covered by the proposed agreement, that would not have provided a basis upon which to make the bargaining orders sought. There could be no serious suggestion that, in permitting the TWU to participate in the bargaining meeting, Armaguard was acting other than on the basis on a genuine belief that the TWU had members who would be covered by the proposed agreement. In those circumstances the ASU could not have established any breach of the good faith bargaining requirements.

[23] Similarly, Armaguard submitted that irrespective of any ruling on this ground of appeal there was no warrant for a bargaining order to have issued. There was no evidence that Armaguard had acted other than in accordance with the good faith bargaining requirements and in reasonable reliance upon the representations made by the ASU and the TWU that they were properly appointed bargaining representatives pursuant to s.176 of the Act. It submitted that it should not be required to concern itself with the intricacies of union eligibility rules nor should it be required to 'referee' demarcation disputes between competing unions. In the context of its workforce activities and enterprise coverage we agree that Armaguard was entitled to take an assertion by the TWU (and indeed the ASU) that it has members and therefore is a bargaining representative at face value. We agree.

[24] Finally, the observation we have made earlier in paragraph [14] is also relevant to this ground of appeal. Given the breadth of the scope of the agreement proposed by the ASU it could not be said that the TWU would not have been entitled to participate as a bargaining representative of employees who were its members. Whether or not the TWU is ultimately a bargaining representative for relevant employees will depend on the scope of the proposed enterprise agreement (which itself is potentially a negotiable issue) and the resolution of any issue which then arises about actual membership.

Other observations

[25] We have earlier set out the requirements of s.230(3) which provides that prior to making any bargaining order FWA must be satisfied in respect of a number of matters. As the ASU did not establish that the pre-requisites in s.230(3)(a)(i) had been satisfied his Honour referred to the ASU alternative submission based on s.230(3)(a)(ii) that he should be satisfied the bargaining process was not proceeding efficiently or fairly because there were multiple bargaining representatives for the agreement. His Honour found that ASU had not established this precondition. That finding was not challenged on appeal. This is not surprising given that there had been no negotiations between Armaguard and the unions and there was nothing to suggest the mere fact that two unions might be involved in a bargaining process was unusual. There was no evidence to support a finding the bargaining process had begun let alone that it was not proceeding efficiently or fairly. We also note that the ultimate finding made by his Honour to dismiss the application was not appealed. That is rather consistent with the fact that what is at issue here is a dispute between the ASU and TWU concerning coverage rather than a genuine concern as to how Armaguard has or may participate in negotiations for an enterprise agreement.

[26] Additionally, on appeal it became apparent that the requirements of s.229(4) had not been complied with. The ASU relied on its letter to Armaguard dated 4 July 2012 as complying with that section. It our opinion it does not. Nowhere in that letter does it identify any of the good faith bargaining requirements in s.228 about which it has concerns and asserts Armaguard had not met. It follows that nowhere in that letter does it set out any relevant concerns nor give Armaguard a reasonable time to respond to those concerns. In our opinion the letter the ASU sent does not adequately comply with the requirements of s.229(4) and accordingly a pre-requisite for an order to issue had not been established. In the absence of relief being granted under s.229(5) of the Act no bargaining order could have been made.

Conclusion

[27] The application before his Honour was flawed at the outset. The evidence was simply insufficient to establish the s.230(3) pre-requisites to the granting of an order.

[28] Contrary to the submission of the ASU we were not persuaded that the appeal raises important issues regarding the application of industry rules. Principles in relation to the approach to the construction and application of such rules have been well-established for some time and there is no question that his Honour was well aware of and applied them. We also note that the TWU rules in particular have been the subject of numerous decisions 5 and nothing raised by the grounds of appeal persuades us to revisit any of them.

[29] The decision made by his Honour is not attended by sufficient doubt to warrant the grant of permission to appeal and no substantial injustice would be occasioned by refusing permission. We are not persuaded that the grounds of appeal enliven any public interest considerations and we decline to grant permission to appeal. The appeal is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr N. Campbell of counsel, for the Australian Municipal, Administrative, Clerical and Services Union

Mr D. Williams, solicitor, for Linfox Armaguard Pty Ltd

Mr M. Gibian of counsel, and Mr A. Carter for the Transport Workers’ Union of Australia

Hearing details:

Brisbane

2012

13 November

 1   TWU 1 paragraphs 45-47

 2   Linfox 1 paragraphs 5 - 10

 3   Transcript PN10 - 15

 4   Paragraphs [5], [9], [30] and [32]

 5   See for example Transport Workers’ Union of Australia v Qantas Airways [1985] 11 IR 145, Transport Workers’ Union of Australia v Budget Rent A Car Operations Pty Ltd (PR968492), DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain [2011] FWA 6863, Transport Workers’ Union of Australia v Queensland Properties Investment Pty Limited [2011] FWAFB 8207

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