Application by Budd
[2024] FWC 3516
•18 DECEMBER 2024
| [2024] FWC 3516 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
Application by Budd
(B2024/824)
| COMMISSIONER MCKINNON | SYDNEY, 18 DECEMBER 2024 |
Bargaining orders application in connection with bargaining for the proposed Australian Federal Police Enterprise Agreement 2024-2027.
Over the course of 2024, the Australian Federal Police (AFP) was bargaining with its employees and their representatives for a proposed enterprise agreement titled the Australian Federal Police Enterprise Agreement 2024-2027. Mr Christopher Budd was an employee bargaining representative for the proposed agreement and in late June 2024, applied to the Commission for bargaining orders (‘bargaining orders application’).
The matter was listed for conference on 23 July 2024, 5 August 2024 and finally on 4 September 2024 when directions were issued for a hearing from 9-11 December 2024. On 15 November 2024, the proposed agreement was approved by employee majority and became an enterprise agreement between the AFP and covered employees (‘the Agreement’). On 19 November 2024, the AFP applied for approval of the Agreement and on 22 November 2024, the AFP applied to dismiss the bargaining orders application (‘dismissal application’).
At a hearing of the dismissal application on 29 November 2024, I:
1.dismissed an application by Mr Budd for my recusal in relation to the dismissal application (‘recusal application’);
2.stayed the bargaining orders application pending the outcome of an application for approval of the Agreement (‘approval application’); and
3.reserved on the question of whether the bargaining orders application should be dismissed if the approval application is granted.
My reasons for dismissing the recusal application are below. This decision otherwise deals with whether to dismiss the bargaining orders application. I have decided to dismiss the bargaining orders application if the approval application is granted and these are my reasons.
The recusal application
Mr Budd sought my recusal from dealing further with the dismissal application. He did not generally seek my recusal in relation to the bargaining orders application. The grounds for the recusal application were that:
1.I should not decide questions about my own procedural decisions, and
2.The cumulative procedural history of this and ‘other matters’ has had a combined effect that tends to favour the AFP. For example, when the AFP made the dismissal application, it was listed quickly, while Mr Budd’s requests for listings have not been treated with the same urgency. It looks like I have formed a view about what the outcome of the bargaining orders application should be and my procedural decisions have gone in that direction.
The first ground of Mr Budd’s recusal application is not persuasive. Commission members must of course make procedural decisions in the cases they are dealing with. Sometimes, parties disagree with those decisions. They have the right to appeal, although as Mr Budd correctly identifies, appeals from interlocutory decisions are generally not encouraged for reasons including to reduce the time and cost of litigation, the potential for procedural rulings to be altered later in a case, and the utility in an appeal where the party complaining about a procedural decision might ultimately be successful in the substantive proceedings.[1]
The potential for procedural rulings to be altered over the course of a proceeding illustrates the reality that Members of the Commission regularly preside over questions about their own procedural decisions, most commonly when a party asks for directions in a matter to be varied. They do so through the lens of procedural fairness and what is required to deal with a case justly, quickly, informally and in a way that avoids unnecessary technicalities. It is part of the ordinary role of case management. The right of appeal remains if ultimately the cumulative effect of decisions is said to indicate pre-judgment or a closed mind to the contentions of a party. That right remains to Mr Budd in relation to decisions made by the Commission in the bargaining orders application or the approval application.
By the second ground, Mr Budd submits that the cumulative procedural history of this and other matters has a combined effect that tends to favour the AFP. The ‘other matters’ referred to by Mr Budd were not specified but I presume it is a reference to the 3 other applications made by Mr Budd in relation to what is now the Agreement.[2] It is true that many of his requests for the Commission to take certain procedural steps have not been acceded to. But each must be considered having regard to the nature of the request and the context in which the procedural decision was made.
The dismissal application was listed quickly because there had been a significant change in circumstances (that is, the making of the Agreement one week earlier). As the substantive three-day hearing of the bargaining orders application was due to commence on 9 December 2024, it was appropriate to provide early certainty to the parties about whether they would still need to prepare and attend a 3-day hearing in the coming weeks.
In contrast, Mr Budd’s requests for procedural directions, including that the bargaining orders application be listed for hearing, were not always acceded to in the timeframe that he would have liked. But nor did they arise in the same or similar circumstances. The bargaining orders application is not a simple one. It covers ground that is voluminous and highly technical in nature, going to whether the AFP can or should follow Australian Public Service Commission (APSC) guidelines and policies in bargaining; its treatment of Mr Budd in bargaining; and what originally were his more than 500 claims for the Agreement on behalf of a group of employees.
Consistent with the usual approach to dispute resolution in the Commission, the early stages of dealing with the bargaining orders application were focused on narrowing the issues and exploring alternative dispute resolution – that is, whether agreement could be reached without the need for a hearing. Mr Budd’s preference has been, since August 2024, for the matter to be set down for hearing. His preferences are relevant to the programming of the matter, but they are not the sole consideration. In addition to the Commission’s own views about what is appropriate for the fair and efficient conduct of the case, there are three other significant stakeholders whose views carry weight: the AFP, the Australian Federal Police Association and the Community and Public Sector Union (CPSU).
Despite Mr Budd’s general pessimism about the prospect of progress in bargaining without a hearing, some progress was made, including in relation to how he had been treated by the AFP in connection with bargaining, his identification of priority issues and his amended application on 20 September 2024. Ultimately, on 14 October 2024 I formed the view that further alternative dispute resolution was unlikely to result in agreement and the matter was listed hearing.
The test for determining whether a decision-maker is disqualified by reason of the appearance of bias, is whether a fair-minded lay observer might reasonably apprehend that the Member might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide.[3]
I am unable to conclude that a fair-minded person apprised of the circumstances above might reasonably consider that I might not bring an impartial and unprejudiced mind to the question of whether or what bargaining orders should or could be made ahead of the hearing on 9-11 December 2024. Forming a view on those matters was the very purpose of the hearing until it was vacated by my decision to stay the proceeding pending the outcome of the approval application and the dismissal application.
The grounds for the recusal application do not support a conclusion that I might possibly decide the case other than on its merits when considered in context. I have no interest in the outcome other than that of fulfilling my statutory duty. Outside of my role as decision-maker, I have no association or connection to the bargaining orders application or the other three applications made by Mr Budd in relation to what was then a proposed agreement. There is no logical connection between the nature of Mr Budd’s concerns and the possibility that I might depart from my oath to act impartially in the conduct of, and in deciding, the matter. The concerns expressed by Mr Budd rise no higher than that his own preferences for the programming of the matter should have prevailed.
Should the bargaining orders application be dismissed?
Bargaining orders are dealt with in s.229 of the Fair Work Act 2009 (the Act). A bargaining representative for a proposed enterprise agreement may apply to the Commission for a bargaining order under s.230. The language of ‘proposed’ enterprise agreement refers to an enterprise agreement that has not yet been made for the purposes of s.182 of the Act.[4] This language is used throughout Division 8 of Part 2-4 of the Act, which is about the Commission’s general role in facilitating bargaining. Bargaining ends once an enterprise agreement is made and approved by the Commission.[5] But from the time an enterprise agreement is made, it is no longer a proposed enterprise agreement.[6] Its content is settled.
On 27 June 2024 when the bargaining orders application was made, it is uncontroversial that the parties were bargaining for a proposed enterprise agreement. Mr Budd was an employee bargaining representative and, assuming the various prerequisites to application were met, had standing to apply for bargaining orders.
The bargaining orders application seeks orders that the AFP:
1.not to treat the advice of the Australian Public Service Commission (APSC) as authoritative or determinative with regards to anything the AFP does in its capacity as employing authority under FWA s 795.
2.not to interact with the APSC regarding the Public Sector Workplace Relations Policy 2023 and its successors, the APS Bargaining Statement of Common Conditions and its successors, or the Non-APS Bargaining – Government Parameters and its successors.
3.not make misleading or deceptive statements concerning any enterprise agreement.
4.within 28 days, issue a new Facilities Agreement that covers all bargaining representatives which provides that their bargaining communications will be considered confidential, and which otherwise treats all bargaining representatives the same to the maximum extent permitted by law.
5.within 5 business days, the Commissioner of the AFP send an email to all AFP employees attaching the orders and including the statement “the Fair Work Commission declared on [date] that, during bargaining for the proposed enterprise agreement, the AFP acted in bad faith”.
Mr Budd also seeks declarations that:
1.the AFP is not bound by Commonwealth policies dealing with public sector workplace relations, APS Bargaining and Non-APS Bargaining.
2.The AFP has acted in bad faith by:
a.following and treating APSC bargaining policies as binding.
b.despite (a), failing to adhere to one of those policies.
c.describing the proposed use of force allowance as a $9,000 allowance.
d.describing the potential benefit of the enterprise agreement to be voted on to employees as ‘up to 29.6%’.
e.refusing to hold bargaining meetings for 1 November 2023 – 5 February 2024 inclusive and refusing to hold substantive bargaining meetings for 3 June – 8 July 2024 inclusive.
f.failing at relevant times to provide him with a substantive response about his claim that a parental leave clause was unlawful and/or objectionable.
g.treating the bargaining communications of the AFPA and CPSU as confidential while simultaneously not treating the bargaining communications of independent bargaining representatives as confidential.
Section 230 of the Act provides that the Commission may make a bargaining order in relation to a proposed enterprise agreement on application, and if the requirements in s.230 are met, and the Commission is satisfied that it is reasonable in all the circumstances to make the order. But a bargaining order can only be made in relation to a “proposed enterprise agreement” and it must be in accordance with s.231, which deals with the content of a bargaining order.
Under s.231, a bargaining order must specify all or any of the following:
1.Actions to be taken by, and requirements imposed upon, bargaining representatives to ensure they bargain in good faith (s.231(1)(a)).
2.Requirements imposed on bargaining representatives not to take action that would be capricious or unfair conduct that undermines freedom of association or collective bargaining (s.231(1)(b)).
3.Actions to be taken by bargaining representatives to deal with the effects of capricious or unfair conduct (s.231(1)(c)).
4.Such other matters, actions or requirements “for the purpose of promoting the efficient or fair conduct of bargaining for the agreement” (s.231(1)(d)).
Examples of bargaining orders are given in s.231(2) of the Act. Picking up on the language of s.231(1)(d), each example contemplates a type of order that might be made to promote efficient and fair bargaining in good faith in relation to a proposed enterprise agreement.
Once an enterprise agreement is made, bargaining has, for practical purposes, come to an end (and subject to its approval by the Commission). All that is left to the bargaining representatives is to bring the application forward to the Commission for approval and to inform the Commission in connection with the application for approval. In this case, the Agreement was “made” on 15 November 2024 and from that time was no longer a proposed enterprise agreement. It was an enterprise agreement. There was, in other words, no “proposed agreement” in relation to which a bargaining order might be made. It follows that the Commission could no longer make orders under s.230.
That the Commission could no longer grant an effective remedy of the kind sought by the bargaining orders application is a strong indicator that the application no longer has reasonable prospects of success. There would be no purpose, in these circumstances, in making findings about the need for the AFP to approach bargaining on one or more matters in a certain way, or about how a party should interact or communicate with others, or the facilities provided to support bargaining representatives with the bargaining task. Deterrent value alone is not sufficient reason to put the parties to the cost and time of a three-day hearing from which there can be no remedy.
The other remedies sought by Mr Budd are firstly, a declaration about the legal status of certain Commonwealth policies as they relate to the AFP (which is the province of the Courts), and secondly, declarations to the effect that the AFP failed to act in good faith in the course of bargaining. Findings of this kind are of course a necessary pre-condition to the making of bargaining orders. But the purpose of s.229 is to ensure the integrity of the bargaining process, by requiring parties to bargain with each other in good faith and keeping the bargaining process on track. Once the bargain has been struck and the enterprise agreement approved, the Commission’s role in facilitating the bargaining process comes to an end. Its focus turns instead to whether to approve the enterprise agreement made between the parties.
I am satisfied that is the case here. If the Agreement is approved, the Commission’s role in facilitating the bargaining process between the AFP and its employees will come to an end. Even if bargaining orders could be made in relation to the bargaining orders application, there would no longer be any purpose served by the making of orders to ensure the integrity of the bargaining process. To the extent that such orders are said to have utility as precedent value in future bargaining, the claim goes beyond the scope of Division 8 of Part 2-4, which is directed at current rather than future bargaining for a proposed agreement. If the Agreement is not approved, bargaining can resume and a new application for bargaining orders can be made.
Accordingly, I have decided that the bargaining orders application should be dismissed if the Agreement is approved by the Commission. On and from that time, the bargaining orders application will have no reasonable prospects of success.
Other matters
Mr Budd asserted that the AFP’s conduct in relation to the bargaining orders application has been to delay and thus deny him a remedy for its bad faith conduct. I do not share this view. The AFP has cooperated with directions issued in the proceeding just as Mr Budd has done. As noted above, some effort went into seeking to narrow the issues between the parties and led to an amended application being filed by Mr Budd before the matter was listed for hearing. The parties are entitled to have different views as to how the matter should be programmed, but ultimately that is a matter for the Commission to decide having regard to its statutory functions. I have otherwise dealt with my decision to list the matter for hearing in December 2024 above.
Mr Budd was unhappy with my decision not to compel witnesses to attend the hearing on 29 November 2024 so that they could give evidence on “facts in issue”. The complaint is misconceived because it proceeds on the basis that it is necessary to decide the bargaining orders application before deciding the dismissal application. In so far as the dismissal application is concerned, there are no relevant facts in issue that require determination. A similar misconception was apparent in the submissions from Mr Budd about the “utility” of making bargaining orders where the conditions for making such orders are met, as distinct from the utility of proceeding with an application in which no orders can be made. The case of Nulyarimma v Thompson[7] takes the matter no further. In that case, the Federal Court of Australia confirmed the well-established principle that the Court will exercise its discretion to refuse an application for discretionary relief where the grant of relief would be futile.
Mr Budd submits that if I lack power to make orders under s.230, I could make orders using my general powers under s.595. But the terms of s.595 are clear. The Commission only has power to deal with a dispute if expressly authorised to do so under or in accordance with another provision of the Act. Absent an express power to make an order under s.230, no bargaining orders could be made in relation to the bargaining orders application.
Finally, Mr Budd queried the level of majority support for the Agreement and how it could be said to have been genuinely agreed if the Commission did not first test whether the AFP had bargained for the Agreement in good faith. The submissions are more appropriately directed to the agreement approval application although they misunderstand the interaction between the agreement-making and bargaining provisions of the Act. Bargaining in good faith is a relevant consideration in connection with the approval of an enterprise agreement only where a scope order is in operation. That being said, bargaining representatives are free to raise any issues for consideration of the Commission in connection with an application for approval of an enterprise agreement either at the time of application or in any response to the application.
Post-hearing approval of the Agreement
On 2 December 2024, the Commission approved the Australian Federal Police Enterprise Agreement 2024-2027. The Agreement commenced operation on 9 December 2024. The effect of s.232(b) of the Act is that any bargaining order made in relation to the bargaining orders application could never operate because the Agreement has now been approved. In the circumstances, the bargaining orders application has no reasonable prospects of success.
Order
The bargaining orders application is dismissed.
COMMISSIONER
Appearances:
C Budd on his own behalf
D Trindade of Clayton Utz for the Commonwealth of Australia as represented by the Australian Federal Police
Hearing details:
2024
Sydney (by video):
November 29.
[1] Hutton v Sykes Australia Pty Ltd [2014] FWCFB 3384 at [3].
[2] B2024/777 (s.437 application for protected action ballot order); B2024/1362 (s.240 application for the Commission to deal with bargaining dispute); B2024/1475 (s.234 application for intractable bargaining declaration).
[3] See, for example, Johnson v Johnson (2000) 201 CLR 488 at [11], Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [33] and Kirby v Centro Properties Ltd and Others (No. 2) (2011) 202 FCR 439 at [7]–[23].
[4] Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia[2014] FWCFB 1317; see also ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53.
[5] Appeal by Uniline Australia Limited [2016] FWCFB 4969.
[6] Construction, Forestry, Mining and Energy Union (105N) v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [33]
[7] [1999] FCA 1192 at 190.
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