Agreements rejected because vote held while union still negotiating

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Agreements rejected because vote held while union still negotiating

Two applications for enterprise agreements have been rejected by Fair Work Australia because they were put to a vote while negotiations with unions were still underway.

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Two applications for enterprise agreements have been rejected by Fair Work Australia (FWA) because they were put to a vote while negotiations with unions were still underway.
 
They were also rejected because no declarations from employee bargaining agents were included in the documentation.
 
Applications for approval from Alphington Aged Care and Sisters of St Joseph Health Care Services (Vic) trading as Mary Mackillop Aged Care were before Commissioner Dominica Whelan and were opposed by the Australian Nursing Federation (ANF).
 
Misapprehension
 
Commissioner Whelan said management at the two aged care facilities appeared to be ‘under the misapprehension that they could be both bargaining with the union, through their bargaining representative, and seeking to make an agreement as they described it “directly with their employees” on the other’.
 
‘This probably derives from the distinction between a “union collective agreement” and an “employee collective agreement” which existed under the Workplace Relations Act. Those distinctions no longer apply.'
 
‘Where an employer seeks to make an agreement with its employees and some of those employees are members of a union, unless the employees appoint another bargaining representative, the union will be recognised by the Act as their bargaining representative.
 
Union has status
 
‘Any single enterprise agreement under the Act is an agreement between an employer and its employees. The union however, has status as a bargaining representative, by virtue of its right to represent those employees who are its members. The bargaining in good faith requirements include recognising and bargaining with the other bargaining representatives for the agreement.'
 
'In my view, where the employer is aware that there are employees who are union members and the union is therefore their bargaining representative, it would be a breach of good faith bargaining to put an agreement to a vote without notifying the union of its intention to do so.'
 
Undermines good faith
 
‘Particularly, as occurred in this case, where bargaining is underway with the union, to not notify the union that bargaining is at an end — which a decision to put an agreement to the vote clearly implies — undermines the process of good faith collective bargaining which the objects of the Act support.’
 
In this case, the aged care facilities appointed a consultant to negotiate with the ANF on their behalf, but then made direct offers to the employees while bargaining was still underway.
 
Didn’t tell union about vote
 
Mary Mackillop had told its employees at a staff meeting that ‘at this stage the negotiations with the union have not been successful’ but had not informed the union that it did not wish to further negotiate, nor that it was holding a ballot of the employees on the offer.
 
In any event, only 32 of the 90 employees voted in the ballot, with 30 voting to accept the agreement.
 
It organised a ballot for an ‘employee collective agreement’, with 30 of the 32 employees who voted — out of 93 it would cover — approving it.
 
Not fully informed
 
The ANF submitted that the employees had not been fully informed because they did not know what was happening in terms of the union’s negotiations with the employer’s bargaining representative, and they were not aware of what was happening in bargaining with other aged care employers.
 
Commissioner Whelan accepted that not knowing the employer was purportedly still bargaining with the union may have affected how the employees voted.
 
She said a representative for Alphington Aged Care when asked why he did not contact the ANF before he put the agreement to a ballot responded that he did not believe there was a need to.
 
‘In general negotiations (with the ANF) were proceeding slowly and it seemed logical to him that he could make an agreement directly with the staff,’ she said.
 
‘Technicality’
 
The employers submitted that ‘FWA should not allow technicalities to stand in the way’ but Cmr Whelan dismissed both applications.
 
 
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