Authority of employer associations

Cases

Authority of employer associations

While s170Nof the Workplace Relations Act 1996precludes the federal Commission from exercising its arbitration power when a valid bargaining period is in place, the bargaining period in this instance was deemed not to be entirely valid as an employer association was not authorised to initiate a bargaining period.

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While s170Nof the Workplace Relations Act 1996precludes the federal Commission from exercising its arbitration power when a valid bargaining period is in place, the bargaining period in this instance was deemed not to be entirely valid as an employer association was not authorised to initiate a bargaining period. A Full Bench of the Commission determined in AHS Hospitality Group P/L & Ors, and Betta Sweeping Service & Ors v ALHMWU, Print S5383, [2000] 461 IRCommA, (28 April 2000) that a Western Australian employer association could initiate a bargaining period on behalf of members, ONLY where the members expressly authorised the organisation. The Commission ruled that a general authorisation to act on a member's behalf was not sufficient.

This appeal stems from an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union (the union) for the making of an award to cover a number of employers in the cleaning industry. Subsequent to this application, the Chamber of Commerce and Industry of Western Australia (CCIWA) notified the Commission that a number of employers had initiated a bargaining period under s170MIand should pursuant to s170Nbe consequently excluded from the award proceedings. At first instance Laing C held on 29 October 1999, that whilst the Commission was prevented from arbitrating an award where a bargaining period had been properly initiated:

The CCIWA could not be an agent for employers who did not prior to the notification specifically instruct the Chamber to notify under s170MIthe initiation of a bargaining period.

The notifying employers failed to satisfy the notification requirements as they failed to adequately describe the 'matters at issue'.

As the matters at issue were not adequately described, the notifications lacked genuineness and as such did not inhibit the hearing of the union's safety net application.

The appeals question Laing C's finding that a deficiency in identifying the matters at issue affected the validity of the notices served under s170MI. The appeals also challenged the finding that there was no express authorisation for the CCIWA to serve bargaining notices under s170MI.

The union having succeeded at first instance submitted in the appeal that the Commissioner's reasoning needed to be revisited. Even though from the union's perspective the decision produced the desired outcome, it was the union's position that the reasoning adopted was wrong. The union contended that Laing C did not correctly address the proper construction of s170Nand that this issue ought to be addressed in the appeal proceedings.

Issues to be determined

In granting leave to appeal the Full Bench identified three grounds upon which it would hear and determine the appeal. They were:

The question of the appropriate statutory construction of s170N;

The question of the genuineness of the notices initiating the bargaining period; and

The question of whether the CCIWA was properly authorised to give a bargaining notice on behalf of employers who had not given express authority.

Construction of s170N

The union submitted that s170Nshould be construed within the context of s170MIas a whole. In so doing the Actshould be read down so as not to impede the making of a first safety net award. The union argued that "...the conclusion that the mere service of a bargaining notice was sufficient to bring to a halt the making of a first safety net award was a conclusion which ought to be avoided having regard to the purposes of a safety net award." The union also contended that the first instance interpretation of s170Nwould effectively negate the operation of s111and s111AAA.

The Full Bench opted to give s170Nits plain meaning. In so doing the Full Bench rejected the union's submission. It was held that s170Napplies only to the parties to a bargaining notice, wherein the Commission may not exercise its arbitration power when a valid bargaining period is in place. In this regard, the operation of s170Ncannot be said to render useless s111(1)(g) and s111AAA, which relate to an industrial dispute.

Genuineness of the Bargaining Notice

In the first instance, Laing C had found that the

...employers were aware that the notifications of the bargaining period enhanced their bargaining position by preventing the award being made.

The Full Bench noted that the onus was upon the union to establish that the service of the bargaining notice was at the time it was served either not genuine or a sham. The union failed to establish this. Nonetheless that Full Bench found no basis to overturn Laing C's finding in this regard.

Authority of the CCIWA

The final issue in the appeal related to the question of CCIWA's authority to serve the bargaining notice. The first instance decision held that the CCIWA did not have the authority to a serve a bargaining notice on behalf of certain employers who had not given express authority to do so.

It was submitted on appeal that the CCIWA had:

...standing instructions to act on behalf of members generally when they are unable or fail to attend industry meetings and the instructions of the members in the contract cleaning industry to endeavour to negotiate terms and conditions with the LMWU in relation to the potential award...

According to the Full Bench, this submission failed to establish that the employer association was authorised to act as an agent to the extent necessary to initiate a bargaining period for a certified agreement. According to the evidence the Full Bench adduced that the extent of the CCIWA's authority was limited to negotiating terms and conditions with the union in relation to a potential award. The negotiation of a certified agreement was therefore unrelated to any potential award. It was the view of the Full Bench that the evidence failed to establish sufficient authority for the CCIWA to serve a bargaining notice under s170MIon behalf of members who had not expressly authorised it to do so.

 

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