Case: Liquor, Hospitality and Miscellaneous Union - Western Australian Branch v CSBP Limited [2007] AIRC 112
Outcome: referred to
The applicant contended in the Commission before Lawler VP that it was not open under the Act for a union to initiate a bargaining period naming other unions as negotiating parties and accordingly it was submitted that the Initiating Notice was invalid and did not initiate a bargaining period. The Commission upheld the validity of the Initiating Notice: Liquor, Hospitality and Miscellaneous Union Western Australian Branch v CSBP Ltd [2007] AIRC 112 ("the first Commission case"). 20 Lawler VP in so finding said relevantly: [14] It is certainly arguable, as CSBP submits, that the effect of s 423 is that, while an employer is able to initiate a single bargaining period with more than one union as negotiating parties (see s 423(1) ,(3)), where a particular union initiates a bargaining period, only that union and the employer are negotiating parties (see s 423(1) and (4)) and that, accordingly, other unions who may wish to be part of the proposed collective agreement with the employer cannot be "negotiating parties" in relation to that particular bargaining period: 21 He continued: To the extent that s 423 has the effect of preventing a union from initiating a bargaining period in which other unions are negotiating parties, I can see nothing in the legislation that would render invalid a notice by a union initiating a bargaining period merely because it (incorrectly) names other unions as a negotiating party. If s 423 has the effect for which CSBP contends then those other unions do not in fact become "negotiating parties" (in the particular bargaining period initiated by the giving of the notice) notwithstanding that they are named as "negotiating parties" in the notice. However, it does not automatically follow that the notice thereby becomes invalid or otherwise ineffective in initiating a bargaining period to which the employer and notifying union are negotiating parties. [17] (Emphasis added) Section 423(3) specifies how the bargaining period is initiated. Even if CSBP, as employer, is the only other person who can be a "negotiating party" to a bargaining period initiated by the LHMU in relation to CSBP employees in this case the LHMU gave "written notice ... to each other negotiating party and to the Commission stating that the initiating party intends to try to make a collective agreement to which this section applies ... with the other negotiating parties under ... 328" as required by s 423(3). The fact that the notice was also given to other persons as "negotiating parties" does not detract from the fact that the requirements of s 423(3) have been satisfied. [18] 24 The protected action ballot order made by Lawler VP was, according to counsel for the respondent, revoked upon the application of the respondent. A further application for a protected action ballot order was then made relying upon the Initiating Notice and came on for hearing before Commissioner Smith of the Commission on 2 March of this year. The Commissioner in an ex tempore decision made a protection action ballot order. The Commissioner's edited reasons were published on 8 March 2007: Liquor, Hospitality and Miscellaneous Union v CSBP Limited (PR976337) ("the second Commission case"). The points taken by the applicant before Lawler VP as to the invalidity of the Initiating Notice were re-argued before Commissioner Smith. In his reasons the Commissioner adopted, without more, the reasoning of Lawler VP, in the first Commission case, in finding that there was a valid bargaining period and in effect a valid initiating notice. 25 As of 23 March 2007, the applicant had reached agreement on all terms of a new workplace agreement with the respondent except in respect of "backpayment of allowances". As at 26 March those issues were resolved save for issues said to have been specific to chemicals. 26 As at 30 March 2007 the remaining issues concerned shift cover and chemical operator levels. 62 The applicant contended that: (i) protected industrial action can only occur during a bargaining period: ss 435(1) and (2). The Protected Action Notice indicates that employees will take industrial action "in respect of the notice of bargaining period BP 2007/8". The Initiating Notice was directed to 3 "other negotiating parties" (the applicant, the AMWU and CEPU) and stated that the respondent intended to try to make a collective agreement with the other negotiating parties. The particulars (at paragraph (b) of the Protected Action Notice) confirmed that the proposed collective agreement sought in the bargaining period was one binding the applicant, the respondent, CEPU and AMWU; (ii) there is no provision in the Act which allows a union to initiate a bargaining period in pursuit of a multi-union agreement. Where a union initiates a bargaining period the only other negotiating party is the employer: s 423(3) and (4). The ability to initiate a bargaining period with more than one union is confined to employers: s 423(4)(c). A defect of this kind is no mere technicality. The effect of a bargaining period is to modify existing legal rights. A union that is a negotiating party may take protected action: s 435(2). Severance is not possible because it will substantially alter the nature of the proposed collective agreement sought in the bargaining period (as confirmed by the particulars). The inclusion of the CEPU and AMWU as "Other Negotiating Parties" was not a "slip". Both the particulars and the factual matrix in which the notice was served confirm that the respondent intended to negotiate an agreement with the applicant and the other 2 unions. The expired CSBP Agreement was an agreement between the applicant and the 3 unions and, since April 2006, the applicant and the 3 unions had been negotiating a new agreement to replace the expired agreement. Further, even if the references in the Initiating Notice to the AMWU and CEPU could be severed, it is seriously arguable that the notice would only then be valid so that a bargaining period would not come into effect for a further 7 days: s 427 of the Act ; (iii) whereas a challenge to the validity of the Initiating Notice was rejected by Lawler VP in LHMU v CSBP Limited [2007] AIRC 112 , PR976150, at [17]-[18], and a similar challenge under the pre-reform Act was rejected by a Full Bench of the Commission in APRA v CPSU &amp; Anor , 21 June 2000, Print S7131 at [12], [14], [21]-[22], those decisions should not be followed. The point which arises in this case, and which was not addressed in those decisions, is not merely that the CEPU and AMWU have been erroneously named as negotiating parties in the respondent's notice. It is that the proposed collective agreement referred to in the Initiating Notice was particularised as, and was intended to be, an agreement between the respondent, the applicant and the CEPU and AMWU and that, by reason of s 423(4)(d) , a union cannot initiate a bargaining period under the Act which would entitle it to take protected industrial action in support of a multi-union agreement; (iv) under s 435(2) of the Act , industrial action organised or engaged in during the bargaining period may be protected action but only if it is organised or engaged in for the purpose of supporting or advancing claims made in respect of "the proposed collective agreement": s 435(2). The "proposed collective agreement" is that to which the bargaining period is directed [s 423(3)]: Trinity Garden Aged Care &amp; Anor v ANF , 21 August 2006, PR973718, at [43]. Accordingly, if the Initiating Notice is held to be valid, the result will be that the respondent will seemingly be entitled to take protected industrial action to cause the respondent to make an agreement with the respondent, the CEPU and the AMWU. Such an outcome is inconsistent with s 423(4)(d) which clearly evinces an intention that if a bargaining period is to be initiated in pursuit of a multi-union agreement (with the possibility that industrial action will then be taken in support of such an agreement), it must be initiated by the employer; (v) the contrast with s 423(4)(c) , which expressly allows for more than one organisation to be a negotiating party where the initiating party is the employer, is telling. This is not a curious result. It is quite easy to envisage why Parliament would not have wished to give unions the ability to take industrial action to cause an employer to enter into a multi-union agreement, irrespective of the wishes of the employer. It is quite possible that Parliament considered the employer was best placed to determine whether a multi-union agreement was suited to the needs of the particular business and therefore that the employer should not be pressured into making a multi-union agreement if it did not wish to. The fact that, in the present case, the applicant is prepared to negotiate a multi-union agreement is not to the point. What is at issue is the capacity of the respondent union to initiate a bargaining period in pursuit of a multi-union agreement; and (vi) if, as appears from s 435(2) , a union cannot initiate a bargaining period in pursuit of a multi-union agreement, there is at least a serious question to be tried that the respondent's Initiating Notice was invalid such that no bargaining period was initiated and the proposed industrial action will be unprotected and unlawful.