10 July 2007
Key Points:
Can two unions issue notices to initiate bargaining periods in respect of seeking a multi-union agreement? The AIRC has answered "yes" to this question.
Two unions, the AMWU and the CEPU, sought orders for protected action ballots among employees of Carrier Air Conditioning Pty Ltd who were employed at Carrier’s Redcliffe workshop.
The negotiations for agreement had commenced in January 2007. On 18 January and 23 January, the CEPU and the AMWU respectively lodged Notices to Initiate a Bargaining Period. The notices were essentially in identical terms, stating that:
"The single business to be covered by the proposed collective agreement is the business of the employer at the Redcliffe Workshop."
Carrier objected to the issuing of ballot orders.
Deputy President McCarthy of the Australian Industrial Relations Commission issued ballot orders on 8 May 2007: AMWU and CEPU v Carrier Air Conditioning Pty Ltd [2007] AIRC 362. In the course of the ruling, the Commission made some interesting rulings and observations on multi-union agreements.
Submissions to the Commission
Carrier argued that the notices to initiate bargaining periods were invalid. Of particular interest is its submissions that a union cannot initiate a bargaining period in support of a multi-union agreement and the Commission cannot make a ballot order where unions are seeking multi-union agreements.
The unions argued that the requirements to issue a protected action ballot order had been met.
The legislation
The Commission noted that the effect of provisions in the Workplace Relations Act 1996 (Cth) was that, while an employer can initiate a bargaining period with more than one organisation, a union can initiate a bargaining period with one other party only, that is, the employer.
An application for an order for a protected action ballot to be held can be made:
The Commission has to take into account the public interest in performing its functions and the objects of the Act.
Validity of notice
The Commission first decided that the AMWU notice was not invalid because the name of an entity was not on the notice, rather the words "of Workers" were included. This was an error, and not a deliberate act to try to identify another entity.
Ballot order sought for multi-union agreement?
The Commission next held that:
In the words of McCarthy DP: "I am satisfied that the industrial action proposed is directed at the demands regarding the content of the agreement or agreements and is not directed at both unions being parties to the one agreement."
What if a multi-union agreement were sought?
Interestingly the Commission held that even if the applications were for a multi-union agreement this would not prevent the making of orders for protected action ballots.
The Commission noted that the legislation lays down precise steps to be taken in initiating a bargaining period, in seeking orders for taking the protected action ballot, in undertaking the protected action ballot and for the taking of any industrial action.
It said: "There is nothing expressly prohibiting any of those steps being taken in concert with another organisation and there is nothing express that would prevent the taking of industrial action in concert for a single multi-union agreement from being protected action."
Further, the Commission expressly has the capacity "to deal at the same time with multiple applications for ballot orders relating to industrial action by employees of the same employer or by employees at the same place of work."
Importantly, the Commission ruled that while bargaining periods can only be initiated by a single organisation in a single enterprise, the protected action ballot order can only deal with the bargaining period which involves the negotiating parties in that period, but "that does not prevent in my view the simultaneous initiation of bargaining periods and of protected action ballot orders by organisations seeking a single agreement" [emphasis added]. Otherwise, the Commission stated, there would be conflict with at least one of the Act’s objects: to enable employers and employees to choose the most appropriate form of agreement for their particular circumstances.
Protected action ballot issued
The Commission issued the ballot orders, having found that the Act was complied with, the parties were genuinely trying to reach agreement and they were not involved in pattern bargaining.
Implications for employers
Industrial action may be protected where it is for the purpose of supporting, or advancing claims, in respect of a proposed collective agreement. This Commission decision means that where more than one union is involved in a workplace, it is possible that one collective agreement may be sought with both the unions and the employer as parties.
Both the unions cannot initiate the one bargaining period with one notice —but can do so simultaneously with separate notices. The Commission has ruled that there is nothing in the legislation which prevents this.
The unions then may each seek protected action ballot orders and again the Commission may grant these where the Act’s requirements in relation to genuine bargaining and so on are met.
Employers should be aware that where there is such initiation of a bargaining period a multi-union agreement may be sought by the unions.
Thanks to Marilyn Pittard for her help in writing this article.
For further information, please contact Glen Bartlett.
