FAIR WORK AUSTRALIA

Statement of Liquor, Hospitality and Miscellaneous Union ("LHMU")

In relation to matter no. B2010/2957

LHMU application for a low-paid authorisation

SUPPLEMENTRY WITNESS STATEMENTOF DAVID KELLY

I, David Kelly, West Australian Branch Secretary of Liquor, Hospitality and Miscellaneous Union, 61 Thomas Street, Subiaco WA state as follows:

1. I am the West Australian Branch Secretary of the LHMU and a member of the LHMU National Executive.

2. The LHMU is committed to participating in a constructive way to indentify productivity improvements in Aged Care.

3. The LHMU will not stand in the way of productivity improvements and will entertain and assist with implementation of realistic initiatives.

4. It is, however, difficult to establish a true measure of productivity in a sector such as aged care. Measuring care hours per resident is unsatisfactory as quality depends upon the inter-relationship between carers and residents. How is this to be measured in productivity terms? Nevertheless, LHMU is committed to identifying productivity improvements.

5. In agreements negotiated by the LHMU in WA we have worked constructively with employers to introduce new career structures, training requirements and classifications.

6. Prior to the introduction of the Modern Award the WA Aged Care Awards had only 1 level of 'carer' in each award-based transitional instrument. They were the Assistant Supervisor, in the Aged Hostels Award (Low Care) and the Nursing Assistant in the Nursing Assistants Award (High Care).

7. LHMU Agreements include classifications for carers with no qualifications, carers with Certificate III and IV, carers with no experience, carers with experience, carers who perform no other duties and carers who are multi skilled across functions such as cleaning and catering.

8. In the area of Enrolled Nurses, LHMU Agreements include a new career structure that includes a new classification of Advanced Skill Enrolled Nurse.

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. 9. These initiatives demonstrate the LHMU's willingness to look at constructive change that delivers both a better trained work force for employers and a career path for employees. However even with these initiatives the bargaining outcomes for employees have been meager.

10. To date, very few employees have chosen to appoint themselves as bargaining representatives when we have been negotiating with aged care providers under the Fair Work Act. I am aware of only one instance where employees have appointed themselves as bargaining agents. This occurred during the negotiations with Carinya of Bicton. This is a small facility. It appears that the employees concerned were encouraged to do so by their employer who was hostile to the bargaining process.

11. If an authorisation is granted, I would be very surprised if any employees either appointed themselves, or appOinted bargaining agents that are not registered employee organisations under the Fair Work Act.

12. The submissions of the CCI WA refer to there being a lack of bargaining in WA in Aged Care by the LHMU since 2004. This is not correct. Since 2004, we have completed the following agreements:

• Brightwater Care Group - LHMU Union Collective Agreement 2007 • Brightwater Care Group - Enterprise Agreement 2010 • Catholic Homes Incorporate - LHMU Union Collective Agreement 2007 • Craigcare and LHMU - Union Collective Agreement 2007 • Freemasons Homes - LHMU - Union Collective Agreement 2007 • Hall & Prior Aged Care Clarence Estate (LH MWU) (Federal) Certified Agreement

2004 • Hall & Prior and LHMU WA Aged Care Facilities Certified Agreement 2005

(AG2005/2434) • Mandurah Retirement Village Inc and Liquor, Hospitality and Miscellaneous

Union - Union Collective Agreement 2007 • Mercy Community Services Inc Residential Aged Care LHMU Union Collective

Agreement 2007 • Mercy Community Services Inc Residential Aged Care LHMU Union Collective

Agreement - LOA • Mount La Vema Retirement Village Inc and LHU - UCA 2008 • Nazareth House - LHMU - Enrolled Nurses and Support Services Staff (Federal)

Enterprise Agreement 2005 • Retirees WA and LHMU Union Collective Agreement 2007 • Salvation Army Western Australian/LHMU Aged Care Transfer Agreement 2004 • Southern Cross Care (WA) Inc - LHMU - Union Collective Agreement 2006 • SSJG Ministries Inc and LHMU UCA 2008 • Stirling Ethnic Aged Homes Association Inc and LHMU Employees Agreement

2009 • Uniting Church Homes and LHMU Union Collective Agreement 2007 • WA Baptist Hospital and Homes Trust Inc LHMU UCA 2007

13. We are currently negotiating with the following employers: • Carinya of Bicton • Regis • Uniting Church Homes

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14. On page 7 of its submission, the Raykon Group suggests that employer resistance to bargaining with the LHMU in WA is due to 'some inherent characteristic' of and the 'behaviour of the LHMU. The LHMU rejects any suggestion that it conducts itself in anything but a proper fashion when bargaining. In contrast, at least 1 employer represented by Raykon has shown themselves to be completely resistant to the bargaining process. Carinya of Bicton went to extraordinary lengths to seek to have LHMU delegates excluded from the bargaining process. The decision of Commissioner Cloghan [included as Attachment A] makes interesting reading, in reference to the behaviour of this employer.

15. In relation to submissions made by ACCI at paragraphs 22 to 27, the LHMU has accessed provisions of the Fair Work Act to further bargaining. Orders were sought against Carinya of Bicton in the case referred to above and protected action was accessed during bargaining with the Hall and Prior Group [included as Attachment B]

16. In relation to the evidence given by Steven Kobelke, Chief Executive Officer of Aged and Community Services WA, I say as follows:

a) I have had almost no contact with my Kobelke since he become the ACS WA CEO in July 2007, other than 1 meeting when he was first appointed and several meetings initiated by the LHMU leading up to the filing of this application.

b) The LHMU did approach ACS WA and other WA Aged Care employers seeking to develop a common strategy to improve wages and conditions in the industry for the benefit of both employees and employers who have both publicly and privately complained that they are unable to attract sufficient staff. They face a workforce crisis.

c) ACS WA declined our proposal for a joint strategy and instead launched their own employer based campaign for additional funding for Aged Care prior to the 2010 Federal Election. Employees have not seen any benefit from this campaign and employers still complain of a crisis.

d) Contrary to Mr. Kobelke's statements made at paragraph 66, the LHMU in WA has a long track record of being receptive to work place initiatives that deliver benefits to both employees and employers. I refer to the initiatives outlined in paragraphs 6,7 and 8.

e) Despite its very public complaints that Aged Care employers in WA face an impending workforce crisis, ACS WA has been spectacularly unsuccessful in improving the situation for West Australian employers.

DAVID KELLY West Australian Branch Secretary Liquor, Hospitality and Miscellaneous Union

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In the presence of:

SIGNATURE

PRINT NAME

DATE

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[2010] FWA 6489

DECISION Fair Work Act 2009 s.229 - Application for a bargaining order

Liquor, Hospitality and Miscellaneous Union v Carinya Care Services (B201O/3215)

FAIR WORK AUSTRALIA

COMMISSIONER CLOGHAN PERTH, 2 SEPTEMBER 2010

Application for a bargaining order.

[I] On IS July 2010, the Liquor Hospitality and Miscellaneous Union (LHMU) ("the Applicant") made application to Fair Work Australia for a Bargaiuing Order.

[2] The application for a Bargaining Order was made pursuant to s.229 of the Fair Work Act 2009 ("the Act").

[3] The Bargaining Order is sought against Carinya Care Services (Bansley Pty Ltd) tradiug as Carinya ofBicton ("the Employer").

[4] The application was the subject of a hearing on 27 July 2010. At the conclusion of the hearing, I reserved my decision but also issued an Interim Order (PR999864) which was to remain in place until a Decision and subsequent Order was issued. That Interim Order was stayed by an Order of the Full Bench on 6 August 20 I O.

[5] The Application by the LHMU sought orders in the followiug terms:

• that the Employer not take any further action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining; and

• the Employer meet forthwith and bargaiu in good faith with all bargaining representatives including the LHMU's representatives.

[6] Subsequently, prior to the hearing the Applicant provided the Tribunal and Employer, draft orders in the following terms:

• Carinya Care Services and their appointed bargaining representative do not take any further action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining or take any other action during the current bargaining for a new enterprise agreement that does not comply with the good faith bargaining requirements;

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[2010] FWA 6489

• Carinya of Bieton or their appointed bargaining representative meet with the Liquor, Hospitality and Miscellaneous Union and any other bargaining representatives properly appointed under the Act in relation to the proposed enterprise agreement as soon as is mutually convenient;

• Carinya Care Services and their appointed bargaining representative recognise the right of the Liquor, Hospitality and Miscellaneous Union to appoint officers, as defined by the Act, to be bargaining agents.

[7] At the hearing, Ms F Evans, LHMU Lead Organiser (Aged Care) gave evidence for the Applicant. For the Employer, Ms K Carmody, HR Manager, gave evidence.

BACKGROUND

[8] In November 2009, the Employer, when preparing for the introduction of award modernisation and National Employment Standards, identified an "anomaly with the way penalty rates for public holidays, shift work and casual loadings are being calculated. In effect, this means tbat all penalties and loadings have been incorrectly calculated on [your] above hourly rate". The Employer claimed that the anomaly led to an overpayment which would not be recovered but, from 30 December, the hourly rate of pay would remain the same, however, penalty rates would be calculated on the award hourly rate of pay. Relevant staff were advised of this situation by written communication and the contact person for queries was the HR Manager, Ms Carmodyl.

[9) This issue led to a meeting between Employer representatives, five workplace representatives of the LHMU and union officials on 9 December 2009.

[10) It is notable that Ms Kathy Jorgenson was a LHMU workplace representative for the LHMU.

[11) On 17 December 2009, the LHMU forwarded to the Chief Executive Officer (CEO) of the Employer, correspondence which commenced with the following paragraph:

"LHMU members at Carinya are delighted that you have agreed after consultation to work with staff in order to make a new employees agreement. This will allow staff and management to work together for the first time to determine employment conditions which better reflect the high level of loyalty and care that staff provide on a daily basis.,,2

[12) The letter further states:

"This letter serves to formally advise of our desire to bargain for an Enterprise Agreement pursuant to the provisions of the Fair Work Act 2009. We look forward to a timely resolution to conclude a collective enterprise agreement that gives your employees a fair deal and that gives you business certainty.,,3

I Exhibit Al

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[2010] FW A 6489

[13] Ms Carmody responded by email acknowledging the correspondence and advising of a meeting on 21 December 2009 and seeking "a list of employees you are representing as we are confused as to who the ANF is representing and who you are representing"·. The meeting scheduled for 19 January was changed to 21 January 2010.

[14] The Union, in turn, responded stating that it represented "carer's EN's and support staff throughout Aged Care in Western Australia"'. The LHMU provided a web site for more information on its role and awards in the industry, to which it is a party.

[15] On 21 December 2009, the Employer issued its first "Enterprise Agreement Update". For the purpose of this Decision, I will highlight point 2 only:

"Enterprise agreements are not made with unions; they are made between the employer and the employees. A union is merely the default bargaining agent for members of that union. You can appoint anyone to be your bargaining agent or you can be your own bargaining agent and take part in the negotiations.'"

[16] On 27 January 2010, the LHMU presented its "complete log of claims from Union Members" but sought further information to better articulate its claim. In addition, the LHMU, due to the 21 January 2010 meeting not proceeding, sought a date, within seven (7) days for negotiations to commence and the information it was seeking, to be made available. Finally, the correspondence referred to the good faith bargaining requirements of the Act due to the cancelled meeting but indicated it did intend to refer the matter to the "relevant industrial bodies, at this time.,,7

[17] On 4 February 2010, the Employer's CEO responded to the Applicant's correspondence of27 January 2010 by seeking the names of staff the LHMU is representing "which is delaying proceedings"'- Further, the information requested by the LHMU, and commencement date for bargaining, would be provided, subject to the Employer receiving a copy cifLHMU's appointment as a bargaining representative.

[18] On 9 February 2010, Ms Gloede, Director of Nursing responded to the LHMU correspondence of 27 January 2010 and log of claims as follows:

"We don't know what game your organization is playing, but it appears quite ignorant of the fact that it is now 2010 and not 1910, the Fair Work Act 2009 makes no provision for what you seem to be proposing and you do not appear to understand the most elementary principles of what constitutes enterprise bargaining in the real world, which we can assure you is the only sort of bargaining this enterprise is going to engage in.

Firstly, your organization's role - if any - in the bargaining process for the making of an Enterprise Agreement (not an Employee Collective Agreement as you quaintly make reference to in the log of claims) is as a bargaining agent for those employees

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[2010] FWA 6489

who are members of your organization or who appoint your organization as its agent. The operative word is "agent": the LHMU is not, carmot and will not be a party principal to any enterprise agreement we reach with our staff and the LHMU has only the functioning capabilities (and constraints) of an agent at common law or as conferred by the Act and only in respect of the principals it represents. If you and your organization do not understand this quite elementary distinction and the implications thereof, we strongly recommend that you inunediately enrol in some basic industrial relations course. You do any employee members or principals who have appointed your organization as their bargaining agent a disservice amounting to incompetence in carrying on this archaic fashion.

Secondly, we still do not know exactly who you represent. Your organization has no entitlement to bargain on behalf of persons who have not appointed you as their bargaining agent, either expressly or by reason of default membership in the organization. We have no evidence that there are any of our employees who are such persons or of the identity of such persons. We will not be engaging in any bargaining with your organization unless we are satisfied that you do actually represent at least one of our employees and are acting on that employee's behalf. Any enterprise agreement negotiated with you (in your capacity as bargaining agent for such an employee) may not apply to any other employee or class of employee that you do not represent and we will not be providing you with any information in respect of any such employees or classes of employee.

Thirdly, bargaining is a process of which you appear completely ignorant. To take just item (I) on the "log of claims": a wage increase of between 70 cents and $1.00 per hour armually is said to be sought for all staff (presumably just those you actually represent) for the life of the agreement. What are your employee principals offering in return for this? In the real world this is known as the quid pro quo - you actually have to be willing to give something in order to get something, in order to be said to be engaged in bargaining. Making a demand is not bargaining.

Your organization needs to get its act together and obtain clear instructions from those identified employees for whom it is acting as a bargaining agent, as to what their proposed quid pro quo is going to be for each element of the proposed agreement. This needs to be communicated to us by your organization in respect of the employees it represents and also by the bargaining agents for all the other employees. The bargaining between us and each bargaining representative of the employees can then commence.

In the interim, we will comply with the modern awards relevant to us and the contractual obligations we have with our employees and put proposals to our employees for what we would like to see in an enterprise agreement. We will not be wasting our time participating in the archaic and irrelevant 20th century rituals you seem so attached to.,,9

[19] The objects of Part 2-4 Enterprise Agreements of the Act are to provide a simple, flexible and fair framework that enables collective bargaining ... for enterprise agreements that

9 Exhibit Al2

[20 I 0] FW A 6489

deliver productivity benefits. The views expressed by Ms Gloede, on the eve of negotiations, are unlikely to be conducive to bargaining in good faith.

[20] Between 9 February and 14 June 2010, no evidence was presented concerning progress on negotiations for an enterprise agreement.

[21] On 14 June 2010, the LHMU wrote to the Employer CEO requesting that negotiations commence and advising that employees at Carinya of Bieton have appointed the Union as a bargaining representative. The correspondence pointed out that it is not necessary to provide details of members and that "membership by at least one staff member will be evidenced by delegate participation in negotiations which is all that is necessary to fulfil the requirements of section 176 ofthe Act"lO.

[22] The Union also advised that staff have appointed the LHMU as bargaining representative, for the purpose of "negotiating a workable enterprise agreement that clearly articulates terms and conditions and addresses concerns of employees".ll

[23] Mr Basire responded on I July 2010 as follows in its entirety:

"We refer to your letter of 14 June 2010 addressed to our Ms Tricia Gloede and firstly note, that to our knowledge, Ms Gloede has not given you permission to address her in familiar terms. It is highly presumptuous of you to do so. More importantly, for a lawyer you display an appalling lack of appreciation of the requirements of proper service of official documents: you might want to have a look at the provisions of the Corporations Law 200 I sometime in the near future if you wish to officially correspondence with us. Ms Gloede is also not an officer of Bansley Ply Ltd, if that fact means anything to you.

You must be very disappointed that staff of our organization have appointed your organization as their bargaining representative for the purpose of negotiating a workable enterprise agreement that clearly articulates terms and conditions and addresses the concerns of the employees: we can find nothing in Part 2-4 of the Fair Work Act 2009 that requires an enterprise agreement to be workable, clearly articulates anything or addresses the concerns of employees and we have no intention of negotiating anything ofthe kind with you. You might just want to have a very close look - even get an opinion from Counsel we dare say - about the requirement in section 171(a) of the Act for enterprise agreements to deliver productivity benefits. We are still waiting for your organisation's response to our request for details of the quid pro quo your members are to (sic) going to give in return for any changes to their terms and conditions of employment as reflected in an industrial instrument. That is if you have any members: should we presume from your failure to respond that you do not?

We also take issue - no let us put it more bluntly: you are bloody wrong - with the assertion that section 176(l)(b)(i) of the Act makes the LHMU to be the bargaining representative of all employees of Carinya. Not only is this a complete misrepresentation of what the subsection provides, we have other express nominations

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[201 0] FW A 6489

of persons as bargaining representatives which refutes any factual underpinning of the assertion. We also have employees who we reasonably believe are not members or eligible to be members of the LHMU and are or are eligible to be members of another organization or have appointed another person to be their bargaining representative.

We will negotiate an enterprise agreement with the bargaining representatives who are entitled to participate in bargaining - namely those with an identified principal who has appointed them or who we are satisfied are legally entitled to represent the employee by virtue of membership in the organisation. You have not disclosed the identity or membership status of any employee principal and will not be recognized as a bargaining representative unless you do.

Lastly we question the truthfulness of what you assert in the letter to be the LHMU intentions, in the light of service upon us of an application for a low paid bargaining authorization and the statements made by the LHMU in proceedings before FWA Commissioner Thatcher on 15 June 2010 about the nature of negotiations that the LHMU intends to undertake with employers. We don't take kindly to being lied to b

.. ,,12 a out your mtentlOns.

[24] The Union responded on 9 July 2010 which is also set out in its entirety:

"Thank you for your letter dated 1 st July 20 I 0 addressed to Ms N MacCarron.

Given that you have written to the LHMU and have not nominated an alternative contact, 1 have taken this to mean that you are the correct contact person for all future correspondence in relation to negotiations at Carinya ofBicton.

You have stated in your letter that you are negotiating a new enterprise agreement. As such I believe that it is appropriate for the LHMU to clarify its position with regards to our involvement in these negotiations. The LHMU has members who are employees at Carinya ofBicton and by virtue of section 176(1)(b)(i) of the Fair Work Act 2009 will be a bargaining agent for these members during the negotiations. Only if these members have appointed an alternative bargaining agent or revoked our status as a bargaining agent would this status change.

There is no obligation for us to provide you with details of our membership except to say that this will be evidenced by at least one member of staff, who is an LHMU member, being part of our negotiating team.

The LHMU request that you do not undertake any negotiations for an enterprise agreement without our full participation as a bargaining representative.

I would be grateful if you can direct all correspondence regarding the negotiations to Nicola MacCarron (Nicola.maccarroniallhmu.org.au) or Ffion Evans (ffion.evans@lhmu.org.au) either bye-mail or by letter.,,[3

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[2010] FW A 6489

[25] Prior to the LHMU response on 9 July 20 I 0, the Employer had set down a meeting for 15 July 2010. Ms Carmody stated that:

"The meeting is to discuss in general terms the matter employees want to see in the agreement.,,14

[26] The LHMU advised on 13 July 2010 that LHMU delegates would be attending on 15 July 2010.

[27] Ms Evans gave evidence that when she arrived at the meeting on 15 July 20 I 0, it went as follows:

"On 15 July 2010, I attended a bargaining meeting with two elected and credentialed delegates and members of the bargaining team. On arrival, Mr Graham McCorry identified himself as being from the WRMC and purporting to be the bargaining representative of Carinya of Bicton. He advised me that the meeting would not take place with the LHMU delegates [present] as neither had nominated each other or been nominated by other employees as bargaining agents. He announced that the meeting could only continue with me as a LHMU representative. I informed Mr McCorry that, 'These two delegates have been elected under our rules and were appointed to be bargaining representatives on the LHMU bargaining team.' I advised him that, 'It would be incorrect for me to bargain on behalf of members without at least some of those members present as elected representatives.' He said he didn't 'give a stuff about your rules' and I was going to have to leave. He also informed me that, 'We go by common law here and I am not arguing with you about this.' I requested that the meeting not proceed since I would not be continuing without an elected bargaining team being present. I believed at the time that the meeting continued without me present. This was confirmed to me on 22 July, when I was sent a copy of the minutes ofthe meeting. ,,15

[28] In cross examination, Mr McCorry questioned how Ms Evans could claim that he purported to be the "bargaining representative", Ms Evans replied that she couldn't recall him making the exact statement but:

and

"The way that you - you were the only person that spoke during the negotiations. It was you that asked me to leave. It was you that stated that the delegates couldn't be there as part of the LHMU negotiation team. At no stage did the people I'm aware of as being management speak at all at that meeting so I did conclude that you were there on behalf - representing management.,,16

" ... You were a representative of the emploler, that's the conclusion I made because you were the person that asked me to leave.',1

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15 PNZ07

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[2010] FW A 6489

[29] Ms Evans' evidence relating to the essential events of the meeting, as described above, were uncontested. Further, Mr McCorry advised that it was unnecessary for the LHMU to call witnesses Ms Jorgenson and Ms Biffin to give evidence as the "respondent is ~uite prepared to stipulate that they were not permitted to attend or take part in the discussions" '.

[30] After leaving the meeting, Ms Evans had discussion with LHMU staff and at 3 :06pm a Notice of Concerns was served on the Employer. At 4:45pm on the same day, the LHMU lodged its application for this Bargaining Order.

[31] On the same day (15 July 2010) Ms Carmody sent a memorandum to all staff which reads as follows:

"It was disappointing to note the LHMU representative F. Evans declined to participate in the bargaining meeting today after she was informed the LHMU could not bring unauthorized representatives to the meeting. The two individual staff members were invited to nominate themselves as bargaining representatives to allow them to participate in the meeting but they declined to do so. The meeting continued in their absence and the minutes will be distributed shortly.,,19

[32] Mr Basire, the Employer's CEO responded to the LHMU Notice of Concerns on 19 July 2010 as follows:

"For a lawyer your letter appears to be ignorant of some of the elemental laws of agency as well as being incapable of reading the plain text of the Act.

The LHMU is the default bargaining representative (ie the agent) for members of the LHMU who are employees (ie the principals) at Carinya of Bicton. The LHMU, as a matter of law, cannot appoint the principal as its own agent when it is acting as agent for the principal. A principal can appoint himself or herself as its own agen~ as the Act contemplates and which the LHMU delegates were invited to but declined.

The LHMU rules in relation to the status of delegates are completely immaterial: only an officer or employee of the LHMU or its appointed legal representative is a person capable of performing the agency functions carried on by the LHMU under the Act.

You have also been misinformed about what was said to Ms Evans: She was told that only Carinya employees she had brought with her (who were not officers or employees of the LHMU) and were not otherwise authorized representatives would have to leave. Moreover the two employees were expressly invited to appoint themselves as their own bargaining representative and stay, but declined to do SO.,,20

[33] As I have stated previously, the Act is framed in such a way that parties will conduct themselves in the "rough and tumble" of bargaining negotiations. Negotiations are often not timid and genteel affairs21 . However, Mr Basire's comments in paragraph [32] are a continuation of a series of statements which range from being uncivil to antagonistic.

IS PN 498

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"[2010] FWA 1065 PR993642

[2010] FWA 6489

IS THE APPLICATION COMPETENT?

[34] The application was filed electronically on 15 July 2010.

[35] Following a telephone conversation with my Associate on or about, 21 July 2010, the Applicant was advised that the application was unsigned. Mr McCorry states:

"It is my respectful submission that an unsigned and unsealed document lodged with the Commission and not served on the Respondent has no legal effect and the Respondent is at law not obliged to recognize it or any proceedings in relation to it."

[36] Notwithstanding Rule 4 of Fair Work Australia's Rules, where the Tribunal may dispense with any requirement of the rules either before or after the occasion of compliance arises, the Applicant provided a signed and dated copy of the application. The application was made by Michael Aulfrey, Industrial Lawyer, LHMU on behalf of the LHMU.

[37] The signed application was received and responded to by Mr McCorry, as follows:

"This document appears to have been executed by someone describing themselves as an (sic) or the "industrial lawyer" for the LHMU. I can find no such office in the rules of the LHMU, which are quite prescriptive about who may institute or commence proceedings on behalf of the LHMU".

[38] The Employer's position is that it does not matter whether Mr Aulfrey, who initiated proceedings, is an employee of the LHMU or a lawyer, the question is simple, "is he authorised to commence these proceedings,,22 and further "there was no evidence before you that he was authorised to do it [make the application ]"23.

[39] It was conceded by both Mr MCCOrry"4 and Ms Carmodl5 that Mr Aulfrey was an employee of the LHMU.

[40] It is noticeable that Mr Aulfrey was the author of the Notice of Concerns sent by the LHMU to the Employer on 15 July 2010. The Notice of Concerns was issued pursuant to s.229 of the Act. Mr Basire, CEO for the Employer responded to the LHMU and marked it for the attention of Mr Aulfrey. It would seem, for the pnrposes of s.229( 4) of the Act, the Employer has no difficulty in recognising and dealing with Mr Aulfrey. The Employer's difficulties regarding Mr Aulfrey, acting on behalf of the LHMU, appear to occur only when he purports to use s.229(1) of the Act.

[41] Mr McCorry, in proceedings, made the asseltion that Mr Aulfrey was not authorised to make the application. Mr McCorry did not provide evidence to substantiate the assertion or refer me to case law. Mr McCorry produced no reason or reasons for me to infer, or even conclude, that Mr Aulfrey was not authorised to make the application.

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[42] Apart from the inconsistency as set out above in paragraph [40], Mr McCorry invited me to adopt, as a conclusion, that Mr Aulfrey was not authorised to make the application because the Applicant had failed to produce evidence that he was authorised to make the application.

[43] In contrast, the facts presented at the hearing, demonstrated that: Mr Aulfrey is an employee of the LHMU; the Employer recognised and dealt with him pursuant to the Act, and the LHMU attended, and put its case to the Tribunal, which he commenced. All of these actions, of themselves, would be inconsistent with the assertion that Mr Aulfrey has no authorisation to act on behalf of the LHMU in this matter.

[44] Simply put, Mr McCorry states that because there is no evidence of Mr Aulfrey's authorisation to make the application, the application should be dismissed as incompetent.

[45] Reference was made during the hearing to the registered Rules of the LHMU. Pursuant to Rule 47, the Branch Secretary is to conduct the daily management of the Union and, in doing so, allocate organising, indnstrial and administrative responsibility among officials and employees of the Union. The Branch Secretary is to take all reasonable steps to carry out the objects of the Union, which includes the execution of documents. The Branch Secretary has wide general powers to manage the Western Australian Branch of the Union, including the appointtnents of various persons, to exercise functions on his or her behalf, to achieve the objectives of the Union.

[46] Similar to corporations law, the business of a union is managed by the Branch Secretary (CEO) and its officers and employees under the direction of the Branch Council (Board of Directors), general meetings and national structure. Unless specific actions can only be carried out only by the Branch Secretary or other officers of the LHMU, this Tribunal, without any evidence to the contrary, is satisfied that the signatory to this application is an employee of the Union, and empowered by appointment, and role and responsibilities, to act on its behalf. Put in the alternative, I cannot comprehend a situation where the Branch or Assisttmt Secretary of a union is required to sign, or provide, on each and every occasion written delegation/authorisation, for an employee of the union, to make application to Fair Work Australia which involves meeting its day-to-day activities.

[47] For the Tribunal, I should also highlight that, at no time, did the Employer claim uncertainty in Mr Aulfrey making the application, or that his actions were an improper exercise of actions as an employee of the LHMU.

[48] Finally, it was not submitted that Mr Aulfrey was a minor, a drunk, mentally unbalanced or acting in a harmful way towards the LHMU, in making the application. Consequently, in my view the application was non controversial, in everything, except the assertion ofMr McCorry.

[49] In the absence of anything but Mr McCorry's assertion, I came to the conclusion that the application was competent. Having done so, I considered the Interim Order, for reasons to be set out later in this Decision, appropriate.

[2010] FWA 6489

HAS THE APPLICATION BEEN MADE AGAINST THE CORRECT ENTITY?

[50] The relevant provisions of the Act relating to this issue are as follows:

• Section 229 - Applications for bargaining orders

Persons who may apply for a bargaining order

(I) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.

(2) (3)

Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order ifthe bargaining representative: (a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii)

[51] Mr McCorry summarised the issue in the following way:

"It's been brought against the respondent employer and you have not heard any evidence about any bargaining representative being appointed, in accordance with the act, by the employer. In fact, the evidence from exhibit A 18, the minutes, would indicate that the management representatives of the corporate entity which trades as Carinya of Bicton was present, so the employer is it's own bargaining representative. No evidence has been adduced about anything that the employer did. ,,26

[52] To address that last point that no evidence has been adduced "about anything tbe employer did,,27, it is important to note that Mr McCorry advised the Tribunal:

"] wear a number of hats, Commissioner. I'm an adviser through WRMC, Workplace Relations and Management Consultants. ] also operate as a facilitator when the circumstances require but] am not appointed as a bargaining representative because -and there's a very good reason for it - being appointed as a bargaining representative has legal consequences.,,28

[53] When asked by myself whether the Employer sought the agreement, or comments of the bargaining representative, as to Mr McCorry's appointment of a facilitator, the answer was in the negative, and further:

26 PN 516

2?PN 516

28 PN 433

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[2010] FWA 6489

"THE COMMISSIONER: So that was a decision that was unilaterally made by the employer, to appoint you as a facilitator.

"MRMcCORRY: Yes.

'THE COMMISSIONER: I suspect, and I don't know, but from the material that I've received so far, the authors of these comments may not be the persons who constructed those comments. No, I will rephrase that. The signatory to a number of the communications have been these individuals but they may not have been the author of the correspondence.

"MR McCORRY: I have certainly provided advice and draft correspondence in response to the matters, Commissioner. I don~ dispute that. ,,29

[54] Ms Evans' evidence regarding the meeting on 15 July 2010, in relation to this matter was as follows:

"So you're assuming that I am the bargaining representative?---The way that you - you were the only person that spoke during the negotiations. It was you that asked me to leave. It was you that stated that the delegates couldn't be there as part of the LHMU negotiation team. At no stage did the people I'm aware of as being management speak at all at that meeting so I did conclude that you were there on behalf - representing management.

"That's fine. There's no problem with my doing that, but was I a bargaining representative?---I think you're asking me legally did you comply with criteria to make you a bargaining representative. The truth is, I don't know. You were a representative of the employer, that's the conclusion I made because you were the person that asked me to leave.,,3o

[55] Mr McCorry concluded this exchange with Ms Evans by posing the following question:

"So let me put it this way: if you can't establish that I am the respondent's appointed bargaining representative, would you say this matter has no reasonable prospect of success?,,31

[56] My final observation ofMr McCorry was his comment:

"Now, you [Commissioner] alluded to the possibility that in my role as a facilitator of this meeting and wearing another hat as an adviser to the respondent, there may be an overshadowing or a convergence, if you like, or a confluence. What we say is that you've heard the evidence of Ms Evans. She wasn't there at the beginning of the meeting so she doesn't know what was said to anybody else. All you have is an

29 PN 428 to PN 431

30 PN 405 and PN 406

31 PN 407

[2010] FWA 6489

impression that Ms Evans may have obtained that I was the bargaining representative.,,32

[57] I propose to examine Mr McCorry's role from three perspectives: content; process; and relationship.

[58] Firstly, Mr McCorry was unilaterally appointed by the Employer. Secondly, he or his organisation provided advice to the Employer in correspondence to the LHMU. Thirdly, he was paid by the Employer. Fourthly, I am unable to agree with the assessment of Mr McCorry, in the minutes of 15 July 20 I 0, as an "independent entity,,33.

[59] With respect to the content of the meeting on 15 July 2010, it was described by Ms Carmody, for the Employer, as, "The meeting is to discuss in general terms the matters the employees want to see in the agreement,,34. However, Mr McCorry described the purpose as follows:

"Well, no, Commissioner, because it was made quite clear in the correspondence to everybody, and it's reflected in the minutes, that the purpose of the meeting was to discuss in general terms the enterprise bargaining process, and that's quite clear from what actually occurred here. There were no negotiations taking place. It was a general discussion about, "This is what the enterprise bargaining process is," and given that there are a large number of employee representatives who were presumed not to have a detailed understanding of the enterprise bargaining process and the various requirements of the act and the constraints imposed, what you can and you can't do, that was the purpose of it. So this was not a bargaining session.,,35

[60] Ms Evans gave evidence:

"What was your understanding of that meeting?---That it was going to be the first meeting ofnegotiations.,,36

[61] The minutes reflect, for the most part, general discussion after the LHMU representatives left. However, the minutes also reflect some specific comments made by Mr McCorry as follows:

"That it is important that staff tell their representatives what they want, don't have your representatives tell you.

"So the question is are the LHMU acting in good faith ...

"The Carinya staff have the ability to tell the LHMU they do not wish for them to proceed with this hearing. ,,37

32PN517

33 ExhibitA18

34 ExhibitA16

35 PN 435

36 PN 197

37 Exhibit AlB

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[2010] FWA 6489

[62] With regard to process, Mr McCorry, after the LHMU representatives had left the meeting, set out the general rules of appropriate behaviour which included, "Don't abuse people aud decisions are made by votes". This rule appears to be at odds with the uncontested evidence of Ms Evaus that he [Mr McCorry] didn't "give a stuff about your [LHMU] rules"; tbat she was "going to have to leave", and "I am not arguing witb you about this,,38.

[63] In these circumstances, it is appropriate to say that if it looks like a duck, walks like a duck aud quacks like a duck, we should at least consider the possibility that we have a duck.

[64] From the evidence provided at the hearing, I am satisfied that Mr McCorry was not an independent facilitator but, before and at the meeting of 15 July 20 I 0, acted on behalf of the Employer.

[65] To claim, as Mr McCorry did, that he is not a bargaining representative, is in my view, a convenient contrivance to avoid the "legal consequences" of the Act which, he himself stated to the Tribunal. 39 For these reasons, 1 am satisfied that the application was made against the correct entity.

WHAT IS THE STATUS OF LHMU DELEGATES MS JORGENSEN AND MS BIFFIN AND CAN THEY ATTEND BARGAINING MEETINGS?

[66] Mr McCorry put the view for the Employer succinctly when he states:

" ... the respondent has taken a quite proper point, that it was only going to bargain with authorised bargaining representatives, aud that does not include the cheer squad - if 1 cau phrase it - from the LHMU:"'o

Further:

" ... The act does not contemplate negotiations occurring with people who are not bargaining representatives as defined within the act...,,41

[67] It is uncontested between the parties that the LHMU is a bargaining representative for. employees who are members of the LHMU covered by the proposed agreement, unless they have appointed auother person as their bargaining representative.

[68] It is also uncontested that the Employer is the bargaining representative for the proposed agreement, and had in attendance at the 15 July 2010 meeting, a number of representatives.

[69] Ms Evaus gave evidence that Ms Jorgensen aud Ms Biffin were elected as delegates under the LHMU Rules to be "bargaining representatives on the LHMU bargaining team,,42. I consider the exact words used by Ms Evans unfortunate. However, the submissions and evidence presented, clearly demonstrate that their role was not as bargaining representatives

3& Exhibit A22

39 PN 433

40 PN 40

41 PN 43

42 PN 207

[2010] FWA 6489

pursuant to the provisions of the Act, but as workplace representatives of the LHMU on the bargaining team.

[70] Notwithstanding this unfortunate use of words, Mr McCorry, for the Employer, took the submission further and asserted that Ms Jorgensen and Ms Biffin, as principals could not appoint the LHMU as their bargaining representative (agent), and subsequently, the LHMU appoint the principals (Ms Jorgensen and Ms Biffin) as agents for the purposes of bargaining.

[71] Mr McCorry provided no evidence that Ms Jorgensen or Ms Biffin had been formally appointed as agents for the LHMU. No evidence was presented in the hearing that the LHMU has delegated anything to Ms Jorgensen and Ms Biffin. The only evidence forthcoming at the hearing was that Ms Jorgensen and Ms Biffin had been elected by other LHMU members as workplace delegates to the LHMU bargaining team.

[72] Ms Evans gave evidence of the practice of LHMU to have workplace delegates present at meetings with management for accountability, feedback, lmowledge of the industry and to expedite discussions or negotiations". There is nothing unusual or controversial in such a practice. There was no evidence from the LHMU, to which tbe Employer could rely upon, that the presence of two workplace delegates during negotiations implied or inferred that they were representing any other person or organisation, other than the LHMU as part of the bargaining team.

[73] Mr McCorry, for the Employer, put the view that only an officer or employee (or its appointed legal representative) is capable of performing the agency functions carried on by the LHMU under the Act.

[74] In response, the LHMU referred to its Rules and the Act. Witb respect to the LHMU Rules, there was reference to Rule 54. Rule 54(a) provides that "Members' delegates may be elected by a majority of members in any place or area where members are employed". At 54(c), a delegate shall, "act as the Union representative .. .in conjunction with Union officials ... and be involved in some or all of the following ... promoting and campaigning for improved conditions of employment...engaging in activities and initiatives aimed towards the resolution of disputes,,:4

[75] Turning to the Act, the LHMU referred to s.12which defines an "officer" of an industrial association, to mean an official (office holder), an employee or a delegate. It was uncontested by the Employer that Ms Jorgensen and Ms Biffin were elected as workp lace delegates to the LHMU bargaining team.

[76] For the above reasons, I am satisfied Ms Jorgensen and Ms Biffin have been elected as workplace delegates to the LHMU bargaining team. Ms Jorgensen and Ms Biffin represent the two separate sites which cover the Employer's enterprise. Their attendance is not excessive and, in my view, will assist in ensuring that negotiations are informed and expedited, in view of their knowledge of the work areas to be covered by the agreement. I agree with the Applicant the practice of workplace delegates at bargaining meetings is not unusual and for common sense reasons, as set out by Ms Evans. I am satisfied that the unilateral decision by the Employer that "they [Ms Jorgensen and Ms Biffin] will not be

43 PN 480

44 WI 2

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[2010] FW A 6489

permitted to participate,,45 as impeding the efficient and fair process of bargaining. I conclnde that Ms Jorgensen and Ms Biffin should attend the bargaining meetings as elected workplace delegates to the LHMU bargaining team.

WAS THE APPLICATION MADE AGAINST THE WRONG ENTITY?

[77] Mr McCorry, for the Employer, submitted that if the proceedings have been brought against the wrong entity, "they can have no prospect of success,,46. Simply put, the actions complained of by the Applicant relate to himself and not the Employer itself.

[7S] Mr McCorry suggested that, if the Applicant believed he was the bargaining representative for the Employer, then the application should have been made out against him or his organisation. In making such a suggestion, Mr McCorry knew that he had not been appointed by the Employer, in accordance with s.l76(4) of the Act, and any such action would fail for not meeting this threshold requirement.

[79] For the reasons I have already set out, I consider that, while not appointed as a bargaining representative in accordance with s.176(4) of the Act, Mr McCorry was a member of the Employer's bargaining team and his views and action prior to, and at the meeting on 15 July 2010, were with the knowledge and concurrence of the Employer; the Employer should be bound by these actions.

[SO] F or the above reasons, I am satisfied the application was made against the correct entity.

HAS THE EMPLOYER MET THE GOOD FAITH BARGAINING REQUIREMENTS PURSUANT TO SECTION 230(3)(a)(i) OF THE ACT?

[SI] The relevant provisions of the Act are as follows:

• Section 230 - When FW A may make a bargaining order

(1) (2) (3) FWA must in all cases be satisfied:

(a) that: (i) one or more of the relevant bargaining representatives for the

agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii)

[S2] For the purpose of this Decision, I am able to make a bargaining order if I am satisfied, in the first instance, that a competent application has been made to FW A. Secondly, I am satisfied from the evidence presented at the hearing, that the Employer has agreed to bargain pursuant to s.230(2)(a) of the Act. Having satisfied myself regarding s.230(1) and

45 ExhibitA17

46 PN 514

[2010] FW A 6489

s.230(2) of the Act, it is necessary to consider whether the provisions of s.230(3) of the Act have been satisfied to enable consideration of whether a bargaining order should be made.

[83] The Applicant asserts that the Employer has not, and is not, meeting the good faith bargaining requirements as required under s.230(3) of the Act In particular, the LHMU asserts that the Employer is engaging in capricious or unfair conduct by excluding two elected delegates from the bargaining process for the proposed agreement, in accordance with s.228(1)( e). The Applicant asserts that employee delegates attending enterprise bargaining negotiations is common practice, and it is unreasonable to expect full time officials and employees to be familiar with the distinctly different operations and practices, existing at individual workplaces.

[84] In excluding the two workplace delegates, the Applicant asserts that the Employer is also failing to recognise and bargain with the LHMU "bargaining team", which represents the employees to be covered by the proposed agreement.

[85] The Employer's response to such an assertion is that the exclusion of "two unauthorised person,,47 is neither capricious nor unfair, and "if it was, how did that undermine freedom of association or collective bargaining?,,48

[86] Firstly, as I have already stated, the two workplace delegates were authorised by workplace members of the LHMU to be part of the bargaining team. Secondly, the two workplace delegates were authorised by the Rules of the LHMU. Thirdly, their authorisation was for the purposes of representing the LHMU as part of the bargaining team, and not, in substitution of the LHMU as the bargaining representative.

[87] While it should not be necessmy, I would emphasise to the Employer that the proposed agreement is between it and its employees as made clear to employees in its first "Enterprise Agreement Update"".

[88] To assert that workplace employee delegates are unable and unauthorised to participate in negotiations as part of the LHMU bargaining team, is the antithesis of an enterprise agreement between employers and employees. I would further emphasise that the proposed agreement can only be considered by approval by the Tribunal if signed by an employee to be covered by the agreement, accompanied by an explanation of that person's authority to sign the agreement. (my emphasis)

[89] Finally, I would highlight that one of Parliament's intention in enacting the Fair Work (Registered Organisations) Act 2009, of which the LHMU is registered, is to enhance relations within workplaces and to reduce adverse effects of industrial disputation. In enhancing relations and reducing adverse effects, the LHMU is expected to meet certain standards to gain rights and privileges under the Fair Work Act 2009. One of those standards is to encourage members to participate in the affairs of the organisation to which they belong (see s.5(c)).

47 PN 533

48 PN 533

49 Exhibit AS

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[20 I 0] FW A 6489

[90] For these reasons, and my earlier comments, I am satisfied that Ms Carmody's pronouncement of the day before the meeting on 15 July 2010 that "they [Ms Jorgensen and Ms Biffin] will not be permitted to participate"SO without any meaningful discussion is sudden and irregular, particularly when Ms Jorgensen was one of five workplace representatives who met with management regarding the introduction ofthe modem award previously5l.

[91] For an Employer who stated on 27 November 2009 that it, "values our relationship with our employees,,52, I am satisfied that the Employer in excluding the two workplace delegates, was behaving in a way that was capricious, unfair and intended to impair the collective bargaining process. Further, that the Employer did not meet the good faith bargaining requirements of s.228(f) by failing to recognise the LHMU as represented by a full time employee and two workplace delegates.

[92] Finally, with respect to this issue, Mr McCorry's suggestion that the Employer was happy to recognise the two workplace delegates if they nominated themselves as bargaining representatives for each other, is contrary, on this occasion, to the requirements of Fair Work Act (Regulations) 2009 2.06 which states:

A bargaining representative of an employee must be:

(a) free from control by the employee's employer or another bargaining representative; and

(b) free from improper influence from the employee's employer or another bargaining representative.

[93] Mr McCorry was inviting two elected LHMU workplace delegates to appoint themselves as bargaining representatives for each other and, at the same time, be free from control or improper influence of the LHMU. I also note that, at the time of making this suggestion, there already existed approximately 10% of the entire workforce at the bargaining table.

TIMING OF APPLICATION

[94] The material provisions of the Act relating to this issue are as follows:

• Section 229(4) - Prerequisites for making an application

The bargaining representative may only apply for the bargaining order if the bargaining representative:

( a) has concerns that:

50 Exhibit AI?

51 Exhibit A2

52 Exhibit Al

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

[2010] FWA 6489

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

• Section 229(5) - Non-compliance with notice reqnirements may be permitted

FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) ifFWA is satisfied that it is appropriate in all the circumstaoces to do so.

[95J The Applicaot conceded that a period of approximately 1.5 hours between advising the Employer of its concerns regarding the good faith bargaining requirements and lodging the application was not a "reasonable time" pursuant to s.229(4)(c). However, the Applicaot submitted that Fair Work Australia should waive the "reasonable time" requirement as it is appropriate in all the circumstaoces.

[96J Having considered all the matters outlined in this Decision aod, io addition, the fact that the Employer's response dated 19 July 2010 to the Notice of Concerns dated 14 July 2010 (but correctly 15 July 20 I 0) is essentially a reaffirmation of the views expressed by Ms Carmody on 14 July 20 I 0 aod by, Mr McCorry for the Employer at the meeting on 15 July 2010. I am satisfied that the LHMU would not expect, aod did not receive, a response to its concerns, which it could consider appropriate. Accordingly, I apply the provisions of s.229(f) of the Act aod will consider the application as if it had met the requirements of s.229(4) of the Act.

SUMMARY AND CONCLUSION

[97] Having carefully considered all the facts, I have come to the conclusion that:

• the application was competent;

• the conduct complained of io the application was carried out by Mr McCorry, contracted by the Employer, to represent, assist and advise it in enterprise bargaining negotiations. Mr McCorry's actions on the meetiog of 15 July 20 I 0 went far beyond that of ao independent facilitator. Due to the manner io which Mr McCorry carried out his contractual obligations, I am satisfied that the Employer should be bound by his actions aod decisions, aod that the application was made against the correct entity;

• the Employer's unilateral determioation that Ms Jorgensen aod Ms Biffin could not attend the 15 July 2010 meeting and then refuse them to continue in the meeting, unless they represented each other, as capricious aod unfair conduct aod undermining the collective bargaining process. Further, that this action was a failure to recognise the totality of the bargaining representative (LHMU) in the form ofMs Evans, Ms Jorgensen aod Ms Biffin;

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o it is appropriate in all the circumstances to apply s.229(5) of the Act to deem that the Applicant had given reasonable time for the Employer to respond to its concerns;

o.the Fair Work (Registered Organisations) Act 2009 sets a standard for the participation of members in registered organisations such as the LHMU, to enhance relations at the workplace and reduce industrial disputation. The bargaining representative (LHMU) was applying this standard in these negotiations, in a manner which was not onerous on the Employer;

• the Act defines an officer of an industrial organisation (LHMU) as an official, delegate or other representative of the organisation; Ms Jorgensen and Ms Biffin were elected workplace delegates of the LHMU; and

• the LHMU is a bargaining representative for some ofthe employees to be covered by the employees (unless they appoint another representative) and the LHMU is not constrained, in negotiations, as a bargaining representative to officers and employees of the Union.

[98] Accordingly, I am satisfied that the relevant requirements of s.229 and s.230 have been met and it is appropriate to make a bargaining order.

WHAT SHOULD THE BARGAINING ORDER SPECIFY?

[99] F or the purposes of this Decision, Orders 1-2 are self explanatory. In relation to Order 3, I refer to s.23 I (l)(d) of the Act which is as follows:

(1) A hargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

(a) (b) (c) (d) such matters, actions or requirements as FW A considers appropriate,

taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement

[100] This provision gives the Trihunal wide discretion to order "such matters, actions or requirements ... for the purpose of promoting the efficient or fair conduct of bargaining for the agreement". The words "taking into account suhparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives)" is not intended to limit the more general construction of the subparagraph, but to highlight that the general provision needs to also take into consideration, situations where there are multiple bargaining representatives involved in the bargaining process.

[101] The provisions in s.23J(l)(d) are consistent with the objects of the Act in relation to enterprise bargaining, which is set out at s.3(f), and that is, to provide a balanced framework for cooperative and productive workplace relations to achieve "productivity and fairness". Paragraph 23J(l)(d) is consistent with the design and logic of the Act and enables the

[2010] FWA 6489

Tribunal to order appropriate actions or requirements, to promote efficient and fair conduct of bargaining for the proposed agreement.

[102] Consistent with my reasons for Decision above, I order accordingly in PR50l295.

COMMISSIONER

Appearances:

Mr T Clark for the Liquor, Hospitality and Miscellaneous Union

Mr G McCorry for Carinya Care Services (Bansley Ply Ltd) trading as Carinya of Bieton

Hearing details:

2010: Perth 27 July

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PR992252

FAIR WORK

AUSTRALIA

ORDER Fair Work Act 2009 s.437 - Application for a protected action ballot order

Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v Hall & Prior Aged Care Organisation (B2009/11128)

COMMISSIONER WILLIAMS PERTH, 24 DECEMBER 2009

Proposed protected action ballot by employees of Hall & Prior Aged Care Organisation (several entities).

Pursuant to s.443 of the Fair Work Act 2009 (the Act) Fair Work Australia orders:

1. PROTECTED ACTION BALLOT TO BE HELD

The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (the Union) is to hold a protected action ballot of the employees of the Hall & Prior Aged Care Organisations being the following employers (herein referred to as the 'Employers') who are single interest employers (s. 172(5)(b»:

• Fresh Fields Aged Care Pty Ltd;

• Danvero Pty Ltd;

• Hamersley Nursing Home (W A) Pty Ltd;

• Varna Pty Ltd;

2. NAME OF PERSON AUTHORISED TO CONDUCT THE BALLOT

The ballot is to be conducted by the Australian Electoral Commission.

3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED

The employees to be balloted are those employees who will be covered by the proposed enterprise agreement and are represented by the Union and employed by any of the Employers.

4. DATE BY WHICH BALLOT CLOSES

The timetable for the ballot is to be as follows:

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PR992252

4.1 The date by which the voting is to close Thursday 28 January 2010.

5. QUESTIONS

The question( s) to be put to voters in the ballot are:

Do you for the purpose of advancing claims in the negotiations for a fair pay increase to be included in the Enterprise Agreement with Hall & Prior Aged Care Organisations, authorise the taking of protected industrial action against the employers which may include you or other employees engaging in industrial action in the form of

1. Not completing some, or all of, the following tasks:

Carers 1.1 Making beds YESINO 1.2 Providing training or mentoring to new or inexperienced employees

YESINO 1.3 Loading or unloading linen trolleys YESINO 1.4 Completing any paperwork or electronic forms directly related to the Aged

Care Funding Instrument (ACFI) YES/NO

Hospitality Care Services Staff 1.5 Setting tables 1.6 Washing dishes 1.7 Completing temperature charts 1.8 Completing cleaning sign-on charts

Gardeners and Maintenance Staff 1.9 Watering lawns 1.10 Tending to plants and garden beds

Cleaning Staff

YESINO YESINO YESINO YESINO

YES/NO YESINO

1.11 Vacuuming Carpets YES/NO 1.12 Sweepingjloors YES/NO 1.13 Cleaning staff toilets YES/NO 1.14 Cleaning administrative and managerial offices and work areas YESINO

Drivers 1.15 Carrying, loading or unloading linen YES/NO

Therapv Assistants 1.16 Grooming of residents YES/NO

Laundrv Staff 1.17 Folding Laundry YESINO

2. Four (4) hour rolling stoppages of work which may be organised or engaged in for consecutive periods? YESINO

3. A ban on the training of new staff?

4. A ban on the working of rostered and non-rostered overtime?

COMMISSIONER

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PR992252

YES/NO

YES/NO

3