Central Highlands Regional Council Enterprise Bargaining Agreement 2012-2015 [2012] QIRC 477

CITATION: Central Highlands Regional Council Enterprise Bargaining Agreement 2012-2015 (CA/2012/561) - Report on Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 156 - certification of an agreement Central Highlands Regional Council AND Queensland Services, Industrial Union of Employees and Others (CA/2012/561) CENTRAL HIGHLANDS REGIONAL COUNCIL ENTERPRISE BARGAINING AGREEMENT 2012-2015 COMMISSIONER THOMPSON 17 December 2012 REPORT ON DECISION (as edited) In giving his decision from the Bench on 13 December 2012, Commissioner Thompson stated: "The Local Government Association of Queensland Ltd (LGA), on behalf of the Central Highlands Regional Council (Council), made Application for the Certification of an Agreement. The LGA, through the advocacy of Mr Shaun Blaney, provided extensive submissions around the negotiations. An information session followed the conclusion of those negotiations in which some 400 of the employees availed themselves of the opportunity, either in group form or individually, to deal with the issues or to have discussion around the issues that were going to and were making up the Certified Agreement. Submissions also provided, by way of an Exhibit, detailed information about the ballot process that was undertaken by the Council in respect of the Agreement following the negotiations. There was a previous Agreement in place at the Council that covered both outside and inside members of the workforce, and there was no other Agreements operating in terms of the industrial coverage of the employees. The negotiations for the current Agreement had not been without some difficulty. There had been a number of conferences before Commissioner Fisher during which there was an arrangement entered into in respect of the ballot to be undertaken whereby it was able to be determined at the conclusion of that ballot the percentage - or the voting outcome of the outdoor and the indoor workers separately, even though the vote was for an Agreement which was to be a combined Agreement. In relation to the outdoor workforce, there was 60 per cent of those who voted - voting against the certification or acceptance of the Agreement. In the case of the indoor workforce, there was 81 per cent who supported it, and as a result the combined votes ended on the basis of some 55 plus per cent supporting the certification of the Agreement. At that time the Council contacted all of the parties, subject to the negotiations, and requested that they become signatories to the Agreement. All Unions that participated within the negotiations agreed and signed up to that Agreement with the exception of The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEU) and the Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees (FEDFA). Mr Blaney, in seeking on behalf of the Council certification, also sought to make an administrative amendment to the Agreement in that they sought to remove, from the parties bound clause of the Agreement, the names of the CFMEU and the FEDFA, which he said had been left there by error and had been put there initially on the basis that the CFMEU and FEDFA would sign the Agreement. Mr Blaney had argued that all of the requirements allowed for under the Act had been met, and that certification of the Agreement should take place. In relation to the CFMEU and FEDFA's position, Mr Blaney drew the attention of the Commission to s. 156(2) of the Industrial Relations Act 1999 (the Act) which relates to an employee organisation being given the opportunity to be party to an Agreement and not availing themselves of that opportunity. In terms of the Unions that were involved within the negotiations, the Queensland Services, Industrial Union of Employees (QSU) supported the amendment that was offered and also the certification of the Agreement. In the case of the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) (TWU), they were not present at the hearings, but they had provided written correspondence supporting the certification, but as they were not present, they have no knowledge, as I understand, of the proposed amendment and have offered nothing in respect of that. The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) made no appearance at the hearing, nor did they provide any written response. The Commission assumes that there is no opposition from that organisation. In the case of The Australian Workers' Union of Employees, Queensland (AWU) when they appeared on the first day of hearing, Mr Mark Raguse, at the conclusion of the submissions that were made by Mr Travis O'Brien (of the CFMEU/FEDFA), indicated that he was not in a position to determine support for the amendment or his position in relation to the Agreement without getting some further instruction. The Commission understood that as the submission made by Mr O'Brien was significant in terms of the amount of material that was covered and the Commission suggested that there be an adjournment to allow that to occur. The time that was agreed upon due to the availability of all of the parties, including the Commission, was today, so that the AWU had some time to consider their position. -- 1 of 3 -- 2 Mr Raguse, on behalf of the AWU indicated that they now support the certification. They indicated that they were not happy with the outcome and that is not an uncommon situation for Unions to be faced with when signing off on an Agreement because generally they do not always get everything that they want. Mr Raguse also indicated that the AWU had support for the amendment that was put forward by the LGA. The CFMEU and FEDFA, through Mr O'Brien, opposed certification. They challenged the bargaining process on the basis that the Council had engaged in prohibitive conduct with the intention of disadvantaging the members of the CFMEU and FEDFA in accordance with s. 105 of the Act. Mr O'Brien provided extensive comment that the Council had, part way through the negotiations, removed the CFMEU and FEDFA from the negotiations, refusing them the right to participate in the process. Mr O'Brien provided no documentation to support this position. The Commission, on the first day of this hearing, spoke to Mr Marshal Anderson, the CFMEU and FEDFA Organiser from the region and the lead negotiator in the negotiations of this Agreement, and asked about when the exclusion to the CFMEU and FEDFA from the bargaining unit had occurred. His advice was that it did not occur and he was involved in negotiations up until 17 November 2012, which is a date that has been indicated by Mr Blaney as being the last day of negotiations between the parties before the Agreement was processed, entering to the next stages that are required under the Act. At the conclusion of those negotiations Mr Anderson made it clear that the CFMEU and FEDFA and the Council had not reached agreement and when the proposed Agreement was sent out to ballot, they actively opposed the approving of the document, which is their right. Mr Anderson raised concerns about the potential validity of the ballot and he raised them on the basis of his own observations. The Commission takes no issue with the view that Mr Anderson raised, although there was little beyond that to support any concerns that he may have. The assertions made by Mr O'Brien about the prohibitive conduct were without foundation and were ill-informed at best. Mr O'Brien raised a number of other objections to the certification, including s. 156(1)(l) of the Act that requires equal remuneration of all men and women, arguing that the provision of a locality allowance in the Award covering the indoor staff would prohibit the Commission from certifying the Agreement that was currently before the Commission. He also raised the issue of another Local Authority where there was more than just the one Agreement covering inside and outdoor workforce, and this was the position of the CFMEU and FEDFA. I do not think there is any doubt they argued that there should be two Agreements in the case of this Council, and there is correspondence to that affect, albeit after the negotiations have finished. I accept that the CFMEU and FEDFA's position was that they had put that on the table earlier in the course of negotiations. In the determination of whether the Agreement should be certified or otherwise, I will first address the position given by Mr Blaney on behalf of the Council. The submission made by Mr Blaney was of a standard that would allow the Commission to conclude that the requirements of the Act had, for all intents and purposes, been met in terms of the negotiation aspect of the Agreement and the processes leading up to the ballot; the conduct of the ballot, the outcome from that ballot, and also the filing of the Application at the Commission. The positions of the Unions signatory to the Agreement have all supported the certification of the Agreement and they also supported the amendment that was offered by Mr Blaney. The Commission also accepts the administrative amendment to correct material contained in the Agreement that was no longer relevant. The argument from the Council around s. 156(2) of the Act clearly has relevance in this matter and it has a real application to in respect of the position adopted by the CFMEU and FEDFA. The Council, on day one of this hearing, made a number of commitments on record and those commitments were that if the CFMEU and FEDFA members employed by Council were not covered by the Agreement by the fact that their Unions had not become signatories, that all of the terms and benefits of that Agreement, in the absence of the signature of the Unions, would be applied to those employees and that they would not be disadvantaged in anyway. They went beyond that and made the further commitments that any Union representative and/or delegate of each of those Unions would receive equal treatment to those Union representatives of the Unions that were signatory and any benefits that would apply to Union representatives as a result of the Agreement would also apply and there would be no disadvantage. The authority that was relied upon by Mr Blaney in respect of a matter dealt with by Commissioner Asbury, was the Amcor Cartonboard Certified Agreement 20031. It was a matter in which the Electrical Trades Union of Employees of Australia, Queensland Branch (ETU) at that time sought by choice to be exited from the Agreement. The parties to that Agreement, in the course of that hearing, gave certain commitments that the members of the ETU would receive all of the benefits that were being applied to all others covered by it, despite the fact that their Union had, for whatever reason, chosen not to be a signatory or a party to the Agreement. That is the case, as I mentioned earlier, in respect of this Application. 1 Amcore Cartonboard Certified Agreement 2003 [2004] 175 QGIG 448 -- 2 of 3 -- 3 On the CFMEU and FEDFA's objections to the certification of the Agreement, I make these points:  that the CFMEU and FEDFA participated fully in negotiations around the making of the Agreement, contrary to the submission made by Mr O'Brien in relation to the prohibitive conduct;  that their delegate acted as scrutineer in the counting of the ballot papers at the conclusion of the ballot process; and  that the CFMEU and FEDFA were given every opportunity to become a signatory to the Agreement but they chose to not do that and that is their choice. The Commission takes no issue with that. The CFMEU and FEDFA maintain an opposition to having the one Agreement and they argue that there should be a separate Agreement for members of the outdoor work force. Unfortunately for the CFMEU and FEDFA none of the other Unions share that view in the outside area, having all signed up the single Agreement. The argument proffered that because the Award coverage for indoor staff has a provision superior to that of the outdoor staff in relation to the location allowance is sufficient to refuse the certification of the Agreement by the Commission, is not accepted and to do so would put at risk the certification of most, if not all, of the Certified Agreements that come before the Commission that have multi-union signatories. I am satisfied that the ballot was undertaken in a fair and reasonable manner and, in the absence of evidence to the contrary, I do not consider an adverse finding regarding the ballot. In relation to having formed a view on the ballot, I mentioned there was material provided and the Commission relies upon the report of the returning officer. On the argument of two, rather than one, Agreements, in this case that "boat has sailed" with all but two of the outside unions being the CFMEU and FEDFA, having signed up to a single Agreement. The amendment, in this case, is allowed and I understand the reasoning and the logic behind making that amendment and I have no issue with it. There was some issue raised by Mr Anderson and certainly Mr O'Brien about a petition. That is not of relevance. There is no petition being presented to the Commission but had it been the case, it still would have had little impact in terms of the Decision being made by the Commission. The Commission is now intending to certify the Agreement made between the Council and the QSU, AWU, TWU and the AMEPKU. S. 156 of the Act provides that the Commission must certify an Agreement if, and must not certify an Agreement unless the provisions of ss. 143, 144 and 145 have been met. Further, it must also pass the no- disadvantage test contained in Chapter 6, Division 3, s. 160 (1) to (6) inclusive. Having heard from the parties over the two days of hearing and having read the Application including the affidavit of Mr Lyle Harman, the CEO of the Council, I find that the proposed Agreement meets the requirements of the Act and accordingly the Agreement is certified in the terms and dates sought from today. I order accordingly.". Dated 17 December 2012. By the Commission, [L.S.] C.R. CHADWICK, Acting Industrial Registrar. Hearing Details: 2012 11 and 13 December Released: 17 December 2012 Appearances: Mr S. Blaney, of the Local Government Association of Queensland Ltd, for the Central Highlands Regional Council. Ms T. Springett and Mr N. Henderson, of the Queensland Services, Industrial Union of Employees. Mr M. Raguse, of The Australian Workers' Union of Employees, Queensland. Mr T. O'Brien, of The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland and the Federated Engine Drivers' and Firemens' Association of Queensland, Union of Employees. -- 3 of 3 --