Case: Trinity Garden Aged Care &amp; Anor v ANF , 21 August 2006, PR973718
Outcome: followed
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. 76 In my opinion there is a serious question to be tried as to whether in the circumstances of this case, the Initiating Notice was valid. I am not immediately persuaded, although I make no decision in this regard, that the reasoning of Lawler VP to which I have referred is correct. In any event, as I earlier foreshadowed, his reasons do not deal with the point which has been raised by the applicant here, namely, whether the addition of the CEPU and the AMWU as negotiating parties were included advisedly in the Initiating Notice (not "incorrectly" as Lawler VP assumed) to the end that the proposed collective agreement referred to in the Initiating Notice was intended to be an agreement between the applicant, the respondent and each of the CEPU and the AMWU. This question in turn raises associated questions not dealt with in either the first Commission case or the second Commission case in any determinative way. These are firstly whether upon the proper construction of s 423(4)(b) of the Act a union can initiate a bargaining period under the Act which would entitle it to take industrial action in support of a multi-union agreement. Secondly there is the effect upon the validity of the Initiating Notice having regard to the provisions of s 435(2) of the Act which provides relevantly that during a bargaining period an organisation of employees that is a negotiating party is entitled, for the purpose of supporting or advancing claims made in respect of the proposed collective agreement to organise or engage in industrial action against the employer. For the purposes of s 423(3) of the Act the "proposed collective agreement" is that to which the bargaining period is directed: Trinity Garden Aged Care v ANF, 21 August 2006, PR973718 at [43]. On one view, as the applicant submits, this would produce the result that the respondent would similarly be entitled to take protected industrial action to cause the applicant to make an agreement not merely with the respondent but with the respondent and each of the CEPU and AMWU. 77 In any event, whatever the position in relation to the question of issue estoppel as it may concern that particular challenge to the Initiating Notice, there was no issue at any time in the Commission concerning the validity of the Protected Action Notice nor could there have been for the obvious reason that this notice was not given until after the protected ballot order had been made by Commissioner Smith. I will now consider that question. 78 In the alternative, the applicant submits that even if there is a valid bargaining period in place there is a serious question to be tried that the Protected Action Notice given by the respondent on 30 March 2007, in purported compliance with s 441 of the Act , did not adequately state the nature of the intended action and was therefore not a valid notice.