Law 6508 Employment And Industrial Assessment Answers

RE: Legal action against Brilliant Joineries

After listening to the problems you are presently facing, as a result of the conduct of Brilliant Joineries, I have conducted some research regarding the employment and industry relations legislations and case laws. After a thorough examination of these, it is my professional opinion that a strong case can be made against Brilliant Joineries and there are high chances of the case being a success, if initiated in the court of law against industrial action claim.

An enterprise agreement can be stated as being an agreement amid one or more than one national system of employer(s), with the employee(s) or such employers, as has been stated in the agreement[1]. These are bargained amongst the parties primarily at the enterprise level, through collective bargaining in good faith[2]. Broadly there are three enterprise agreements, the single, the multi and the Greenfields[3].

The Fair Work Act 2009[4] is the legislation which governs union rules in Australia, along with the Industrial Relations Act 1996[5], depending upon the jurisdiction. The Fair Work Act 2009 presents a fair, straightforward, as well as, flexible framework for assisting the employers plus employees in bargaining in good faith, in order to create an enterprise agreement[6]. The bargaining requirement of good faith makes it mandatory on the bargaining representatives to attend and participate in the meetings, giving genuine consideration to the proposals made, and divulging the appropriate information in a well-timed way, amongst the other things[7].

In case the bargaining representatives have a dispute, for reasons including not bargaining in good faith, an application can be made to the Fair Work Commission for solving the disagreement. In such case, the Fair Work Commission issues a bargaining Order, stating the measures to be adopted, or to not be adopted, so as to encourage efficient, as well as, fair bargaining. Hence, an application would have to be made in this case, to the Fair Work Commission for their evasion from the meetings to discuss the agreement[8]. Through an Order of Fair Work Commission, Brilliant Joineries can be forced to the bargaining table.

A bargaining representative is an individual or an organization which are appointed by the parties to the enterprise agreement so as to represent them in the bargaining process. According to the Fair Work Act 2009, an employer who has to be included in the agreement or covered through it would be a bargaining representation[9]. In addition to this, a trade union which has a member, who would be covered under the agreement, would also be covered under this, unless it has been clearly stated by the member in written manner that they do not desire to be represented through the trade union[10]. So, for employees, the bargaining representative could be the employee themselves, a union, or a person who has been appointed in writing by the employee.

A representation can be made of those employees only who have opted for it. And so, the representation can only be made by the 3 members of the LCJU by LCJU. This is because only these three members have appointed LCJU as their bargaining representative. The LCJU membership could only be increased in such a case where more members apply to LCJU for being their bargaining representative. They may or may not belong to LCJU, as LCJU is a trade union and the trade unions are allowed to be representatives of the employees, as long as they elect the trade union through a letter in writing which acts as the instrument of appointment[11]. Hence, if there are employees, who put it in writing that LCJU should act as their bargaining representative, in that case, the membership of LCJU could be increased. However, this position would change if BU is able to tap in the membership of the employees, employed with Brilliant Joineries.

This very mechanism can be used to ensure that BU, which is a better resourced trade union in comparison to LCJU, does not take over. For BU to take over this bargaining, they would need a written document from the employee, stating that they had elected them as the bargaining representative. Unless, such a written document is provided, the trade union, of which the employee is the member, continues to be the bargaining representative of the employee. The default bargaining representative of the trade union of the member is the trade union of which the individual is a member, unless someone else is specifically appointed.

As highlighted earlier, there are three broad enterprise agreement options in this case, i.e., single-enterprises agreements, multi-enterprise agreements, or Greenfields agreements[12]. The first one is formulated between employer and its employees. Further this can be drawn amid two or more than two employers with their employees, as long as the employers have a single interest employer[13]. So, these parties have to be connected to the body corporate, which is engaged in a joint venture or a common enterprise or has been explicit stated in a single interest employer authorization, for instance, the employer who operates under some sort of a franchise arrangement.  The multi-enterprise agreements are made amongst two or more than two employers with their employees[14]. The Greenfields agreements can be any of the above two, when such are made regarding a genuinely new enterprise, before employing any staff[15]. But for this case, LCJU should opt for the first one, i.e., the single-enterprises agreement. This is because to the majority support determination can be only applied under this form[16].

The bargaining representative of the employee can make an application to the Fair Work Commission for a Majority Support Determination[17]. This takes place when an employer declines to start the bargaining themselves or fails to agree to its commencement. Essentially, this is a poll of employees regarding if they want to negotiate and if the majority of them want to negotiate; in such a case, the employer has to negotiate in good faith. This is a determination by the Fair Work commission regarding majority employees wanting to negotiate with the employer regarding the enterprise agreement that has been proposed. In National Union of Workers v Medication Packaging Systems (Australia) P/L[18], a request for the majority support determination was made. The question in this case was whether or not the proposed group was chosen in a manner which could be deemed as fair. After a thorough discussion, the Commission concluded that the group was chosen in a fair manner and hence, the majority support determination could be made in this case[19]. Another case where the similar decision was reached is the case of The Australian Workers' Union v QGC Pty Limited T/A Queensland Gas Company (B2015/659)[20], where the same decision was given.

The other reason why the single-enterprises agreement should be opted in this case is to initiate an industrial action against Brilliant Joineries. Industrial action can take place in various manners[21]. The Fair Work Act 2009 provides that the industrial action could include the following actions:

• The employees perform the work in a different manner from the normal manner.
• Adoption of practice by employees which delays, restricts, or limits the performance of work.
• Restricts, limits, or bans on accepting or performing the work by employees.
• Refusal or failure to perform or attend the work by the employees.
• The employees’ lockout from the employment by their employer[22].

During the negotiations of an enterprise agreement which has been proposed, the employees and employers can make a protected industrial action[23]; though this cannot be made in case of a multi-enterprise agreement or a Greenfields agreement. If a single-enterprises agreement is drawn in this case, an industrial action can be initiated against Brilliant Joineries for the bad working conditions, as well as, for the undervalued feel which the employees get due to working with Brilliant Joineries. If any other form of enterprise agreement is drawn, neither the majority support determination, nor the industrial action could be initiated against Brilliant Joineries.

Summary of Advice:

On the basis of the law presented above, specifically the Fair Work Act, the advice has been summarized below:

And Order attained from the Fair Work Commission, can be used to force Brilliant Joineries to join the bargaining table. Hence, an application should be made to the Fair Work Commission, in Order to get the Order.

LCJU can only represent the three members which have applied to it, for being their bargaining representative. Though, the membership of LCJU can be increased by getting the other employees of Brilliant Joineries, to put it in writing that they elect LCJU as their bargaining representative.

There is a legal mechanism through which BU can be stopped from taking over LCJU. This can be done in form of taking a written statement from the members of LCJU to make them their bargaining representative. This would stop BU from taking over the members of LCJU, due to lack of explicit documentation.

Out of the three enterprise agreement options available under the Fair Work Act, LCJU should opt for a single-enterprises agreement, as this would keep the channels open for both majority support determination, and the industrial action, which could be used against Brilliant Joineries

Please provide further guidance on how you want us to proceed with the case. A clarification is also made that the firm, has worked for the employers, and for another joiner, which could have raised a conflict of interest, in absence of this disclosure.

Yours Faithfully, 

John Potter,

Law Firm Partner. 

Bibliography

Cases

National Union of Workers v Medication Packaging Systems (Australia) P/L [2016] FWC 3910

The Australian Workers' Union v QGC Pty Limited T/A Queensland Gas Company (B2015/659) [2015] FWC 5696

Legislation

Fair Work Act 2009 (Cth)

Industrial Relations Act 1996 (NSW)

Others

Australian Government, Fair Work Act 2009 (17 November 2016)

Fair Work Commission, Enterprise Bargaining (7 July 2016) <https://www.fwc.gov.au/documents/decision_summaries/2016fwc3910ds.htm >

Fair Work Ombudsman, Enterprise bargaining (2017) <https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/enterprise-bargaining>

Fair Work Ombudsman, Industrial action (2017) <https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/industrial-action>

Walsh P, Australia: Bargaining under Australia's Fair Work Act: Best Practice Guide (20 August 2013) <https://www.mondaq.com/australia/x/258498/employee+rights+labour+relations/Bargaining+under+Australias+Fair+Work+Act+Best+Practice+Guide>