Association of Professional Engineers, Scientists and Managers, Australia, The v BHP Coal Pty Ltd - [2012] FWA 4435

Note: An appeal pursuant to s.604 (C2012/4512) was lodged against this decision.

[2012] FWA 4435

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009

s.229 - Application for a bargaining order

s.603 - Application to vary or revoke a FWA decision

Association of Professional Engineers, Scientists and Managers, Australia, The
v
BHP Coal Pty Ltd
(B2011/328)

BHP Coal Pty Ltd
v
Association of Professional Engineers, Scientists and Managers, Australia, The
(C2012/2476)

COMMISSIONER SPENCER

BRISBANE, 20 JUNE 2012

Application for Good Faith Bargaining orders/Application for revocation of a Majority Support Determination.

Introduction

[1] This decision relates to the two applications heard together. The Association of Professional Engineers, Scientists and Managers, Australia (APESMA/the Union) filed an application pursuant to s.229 of the Fair Work Act 2009 (the Act) seeking Good Faith Bargaining orders under s.230. The Orders related to the conduct of BHP Coal Pty Ltd (BHP/the Employer) during the negotiations for the enterprise agreement APESMA sought to cover its members at the Broadmeadow Mine.

[2] BHP filed an application pursuant to s.603(1) and (2)(b)(i) of the Act seeking the revocation of the Majority Support Determination (MSD) Order made by Lawler VP (in transcript on 5 August 2010 in B2010/3244) in relation to APESMA members at the Broadmeadow Mine. The Employer submitted there was no longer majority support amongst these employees for an agreement between the staff and the Employer.

[3] This matter was originally allocated to Lawler VP and later allocated to FWA as currently constituted. An Application for an Order for the Production of Documents had also been made by APESMA before Lawler VP, which was also reallocated.

[4] That application relating to production of documents was the subject of separate proceedings and is dealt with later in this decision.

[5] A significant volume of evidence, submissions and legal authority has been placed before the tribunal across the 6 days of Hearing. Whilst this decision does not refer to all of the evidence and materials, all of such has been considered in this matter.

[6] APESMA was represented by Mr I. Taylor and Ms L. Doust, both of Counsel, instructed by Mr P. Pasfield of Slater & Gordon Lawyers. BHP was represented by Mr H. Dixon SC and Mr C. Murdoch of Counsel, instructed by Ms H. McEniery of Freehills Lawyers.

Relevant legislation

3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

...

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; ... (Emphasis added)

171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through (Emphasis added):

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; (emphasis added)

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement. (emphasis added)

229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) 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...

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 14 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order if the 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(emphasis added)

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

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

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

Non-compliance with notice requirements may be permitted

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

230 When FWA may make a bargaining order

Bargaining orders

(1) FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

Agreement to bargain or certain instruments in operation

(2) FWA must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation; (emphasis added)

(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

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

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify)...

231 What a bargaining order must specify

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

(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

(d) such matters, actions or requirements as FWA 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.

(2) The kinds of bargaining orders that FWA may make in relation to a proposed enterprise agreement include the following:

(a) an order excluding a bargaining representative for the agreement from bargaining;

(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

(3) The regulations may:

(a) specify the factors FWA may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

(b) provide for FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.

236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When FWA must make a majority support determination

Majority support determination

(1) FWA must make a majority support determination in relation to a proposed single-enterprise agreement if:

(a) an application for the determination has been made; and

(b) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.

603 Varying and revoking FWA’s decisions

(1) FWA may vary or revoke a decision of FWA that is made under this Act (other than a decision referred to in subsection (3)).

Note: If FWA makes a decision to make an instrument, FWA may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) FWA may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision; or

(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) FWA must not vary or revoke any of the following decisions of FWA under this section:

(a) a decision under Part 2-3 (which deals with modern awards);

(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);

(d) a decision under Part 2-6 (which deals with minimum wages);

(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);

(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);

(g) a decision under section 472 (which deals with partial work bans);

(h) a decision that is prescribed by the regulations.

Note: FWA can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).

Hearings

[7] The parties filed submissions and evidence according to the Directions. The matters were heard on 18, 19, 20 and 26 April, 10 and 21 May 2012.

[8] The following witnesses provided evidence:

For APESMA

Ms C. Bolger, Director, APESMA Collieries Staff Division; and

Ms K. Harper, Industrial Officer/Organiser, APESMA, Collieries Staff Division.

For BHP Coal Pty Ltd

Mr G. Hamilton, HR Manager, BHP Coal Pty Ltd;

Ms L. Millar, Senior Employee Relations Advisor, BHP Billiton Mitsubishi Alliance;

Mr J. Evans, Head of Production – Mining (Qld), BHP Billiton Mitsubishi Alliance;

Ms K. Taylor, HR Advisor, BHP Billiton Mitsubishi Alliance;

Mr M. Filtness, General Manager, Broadmeadow Mine;

Mr K. Dyer, Consultant, Computershare Investor Services Pty Ltd; and

Mr E. Hone, Technical Services Manager, Keepad Interactive.

[9] Ms Millar was not subject to cross-examination. The evidence in her witness statement regarding a statement she made at a bargaining meeting regarding BHP’s bargaining position was controversial between the parties. The parties reached agreement on how each party considered the evidence of Ms Millar be adopted. The following commentary on the agreement regarding Ms Millar’s evidence was provided:

“MR TAYLOR: Yes, Commissioner. The understanding that we have reached I'll now try and encapsulate, and if I get it wrong I'll guide my friend to correct me. The first is that we had a concern that a failure to cross-examine Ms Millar may be raised against us as in and of itself a reason why you, Commissioner, would prefer Ms Millar's recollection of what is clearly a disputed meeting as to what was said in a couple of respects.

THE COMMISSIONER: Yes.

MR TAYLOR: As I understand it, the failure to cross-examine will not itself be relied upon as a reason to prefer Ms Millar's recollection to that of Ms Bolger and Ms Harper, who gave a different recollection of the meeting, and Ms Taylor, of course, also had a recollection of this meeting and she was cross-examined. I just want to be clear, and secondly, with respect to paragraph 11, if Commissioner, you could look at paragraph 11 - - -

THE COMMISSIONER: This is the initial statement?

MR TAYLOR: - - - of the first of the two statements, exhibit 31. In that paragraph Ms Millar denies saying something in the first sentence, says that she's never said it, says it's not consistent with what she had concluded and adopted, and then says this, "It is also not what I understood the company's position to be, namely" and there's a series of dot points. Do you see that?

THE COMMISSIONER: Yes.

MR TAYLOR: It is my client's position that what then follows in those dot points is not necessarily a completely or entirely accurate account of what the company's position is, but what I understand it is those words are not relied upon to prove that that was the company's position but are relied upon to prove that Ms Millar believed that to be the company's position and is relied upon only insofar as it is a reason why she would not have said the words which she denies saying. And we are content for it to go in on that limited basis and then they're not required for cross-examination.” 1

[10] Mr Dixon, for BHP, raised at the outset a series of objections to the Witness evidence; these formed Exhibit 8. Each one of these objections was not specifically referred to each witness statement at the time; it was accepted that FWA would consider these and whether it was a matter of weight that could be attributed to the evidence or an alternative course. The parties agreed to also deal with the matters in submissions. One of the issues BHP emphasised in their objections was that Ms Bolger’s evidence was predominantly drawn from conversations with Members that were not named. Mr Dixon stated this prejudiced BHP in being able to deal with the evidence of ‘nameless employees’ and the matters should be struck out.

[11] It is not irregular in proceedings before FWA, for Unions to bring evidence on this basis. In assessing the evidence, it was clear that BHP was aware of the issues being referred to in the evidence of this nature and were able to deal with it in a meaningful way in cross-examination.

[12] I have taken these objections to the witnesses into account in considering the evidence.

[13] APESMA sought the following amended Good Faith bargaining orders:

AMENDED DRAFT ORDER

1. That BHP Coal Pty Ltd is to take the following actions within 21days:

a. Provide to APESMA a list of subject matter that BHP Coal would be prepared to include in an enterprise agreement applying to employees at Broadmeadow Mine in respect of whom a Majority Support Determination was made on 11 August 2010 ("Staff"), and in doing so;

(i) must give genuine consideration to the subject matters · dealt with by the APESMA proposed enterprise agreement;

(ii) must answer in a manner consistent with its obligation to make a reasonable effort to try to make an agreement; and

(iii) cannot answer to the effect that there be no enterprise agreement regardless of its terms.

b. Tell APESMA what aspects of the latest version of the APESMA proposed enterprise agreement (annexed to the Application), if any, can be agreed, and in doing so;

(i) must give genuine consideration to the APESMA proposed enterprise agreement;

(ii) must answer in a manner consistent with its obligation to make a reasonable effort to try to make an agreement;

(iii) cannot answer to the effect that there be no enterprise agreement regardless of its terms; and

(iv) in the event BHP Coal rejects any specific term of the APESMA proposed enterprise agreement, must identify a reasons or reasons why a term of that type is not appropriate.

c. Tell APESMA what changes to the latest version of the APESMA proposed enterprise agreement should be made to make it an agreement that BHP Coal would make, and in doing so;

(i) must give genuine consideration to the APESMA proposed enterprise agreement;

(ii) must answer in a manner consistent with its obligation to make a reasonable effort to try to make an agreement;

(iii) cannot answer to the effect that there be no enterprise agreement regardless of its terms; and

(iv) to the extent that the change proposes a term that is not at least equal to the current conditions provided under common law contract or company policy, must provide a reason or reasons for the change.

d. Propose terms of an enterprise agreement that BHP Coal would be prepared to enter into and in doing so;

(i) must give genuine consideration to the APESMA proposed enterprise agreement;

(ii) must answer in a manner consistent with its obligation to make a reasonable effort to try to make an agreement;

(iii) cannot answer to the effect that there be no enterprise agreement regardless of its terms.

2. BHP Coal is required within 14 days to disclose to APESMA the following information (with such information to be disclosed in a manner that does not identify the actual pay of any individual):

a. How many pay bands apply to BHP Coal’s Colliery;

b. What is the minimum dollar figure for each pay band;

c. Which positions fall into which of the pay bands (positions can be aggregated to the extent necessary to prevent any individual salary being identified);

d. The current policy or procedure by which the Respondent determines into which pay band a position is placed and where in a pay band a position is placed (if it is in writing, provide a copy of the policy or procedure);

e. The current policy or procedure by which the minimum pay point in the pay band is adjusted from time to time;

f. The quantum and date of the last 5 percentage adjustments applied to each pay band;

g. Whether the Respondent has any current policy or approach pursuant to which relativities are set in respect of any of the following roles at Broadmeadow: P & E and Deputy; Deputy and a Staff member, a Staff member and a Staff member’s one-up supervisor. If there is such a policy or approach in respect of any of those comparisons, provide that policy.

h. The current policy or procedure in respect of housing;

i. The current policy or procedure in respect of Staff retention.

3. That the parties meet to progress their bargaining within 21 days after BHP Coal has taken the steps ordered above.

4. That BHP Coal participate in conciliation in Fair Work Australia with APESMA in relation to APESMA’s proposed enterprise agreement. 2

Revocation of Majority Support Determination

[14] BHP sought the revocation of the MSD pursuant to s.603(1) and (2)(b)(i) on the basis that there had been a change in circumstances since the original MSD decision by Lawler VP. That is on the basis of a further vote of staff undertaken by BHP at the Broadmeadow Mine, it was submitted that staff no longer sought to bargain for an enterprise agreement.

[15] The parties; agreed the MSD decision (B2010/3244) issued by Lawler VP was appropriately made as at 5 August 2010 in accordance with s.443 of the Act. At that time 52 of the 74 employees voted in favour of forming an enterprise agreement. APESMA accepted that the Tribunal had the power to revoke the MSD. Neither party considered it an impediment that the revocation application before the Tribunal as currently constituted; was to revoke another Member’s order. APESMA however emphasised that considerable caution should be exercised in these circumstances, and it would be rare that such a revocation be granted.

[16] APESMA submitted that the entire conduct of BHP in the negotiations at Broadmeadow Mine, should be taken into account in the consideration of the revocation application, rather than simply the outcome of a separate vote. Further they argued that the revocation of an order should only be granted in ‘exceptional circumstances’.

[17] Accordingly the revocation application will be addressed after a consideration of the application of the Good Faith Bargaining orders.

Good Faith Bargaining Orders

[18] APESMA’s GFB orders were sought pursuant to s.228(1), with emphasis on s.228(1)(e). They contended that BHP were not bargaining in good faith. APESMA argued that for the 18 months of negotiations (whilst a majority support determination was in place), BHP had participated in enterprise bargaining without once:

“a. preparing any draft agreement,

b. proposing any draft clause of an agreement,

c. proposing any subject matter which might be included in an agreement; or

d. agreeing on even the most uncontroversial clauses of the Applicant's proposed draft agreements, including having a title and an arrangement clause.” 3

[19] Further APESMA stated that BHP at no stage throughout the negotiations provided:

“a. Any draft agreement;

b. Any draft clause;

c. Any proposal about any matter of substance which might be included in an enterprise agreement;

d. Any marked up version of the APESMA draft agreement showing proposed changes;

e. Any list of subject matters which might be included in an enterprise agreement.” 4

[20] APESMA submitted that BHP’s bargaining conduct was consistent with its ‘ideological’ position; that it did not want an enterprise agreement to cover its staff at the Broadmeadow Mine. APESMA further stated that this was consistent with the opposition to the agreement by Mr Armitage and then consistent with the philosophical position expressed by, the new General Manager, Mr Filtness, as he outlined to employees at a meeting with them. Mr Filtness stated in cross-examination:

“You've expressed the view, have you not, that you are philosophically opposed to an enterprise agreement for staff at the Broadmeadow mine?---Yes.

That philosophical opposition is an opposition regardless of the terms of the enterprise agreement, is it not?---Yes.

So the true position is that prior to 5 January, you saw no need to review in any way the proposed enterprise agreement, because you were philosophically opposed to an agreement regardless of its terms?---Yes.” 5

[21] APESMA stated the bargaining position of BHP was revealed with candour by Ms Licia Millar, Senior Employee Relations Advisor, at the final bargaining committee meeting on 17 November, wherein they stated she said:

“We don’t see the need for an agreement... our current conditions are appropriate. Our position has not changed and we will not enter into an enterprise agreement with you...” 6

(as recorded in the APESMA record of the meeting)

[22] Ms Millar denied she said this and BHP refuted that version of the record of the exchange between Ms Millar and Ms Bolger of the Union. However, the negotiating position of BHP that Ms Millar put in writing (as set out below) reflects their stance against an Agreement with APESMA.

[23] Ms Millar’s correspondence, dated 10 April 2012, 7 records the negotiating position of BHP. The correspondence was written after the release of the Full Bench decision in Endeavour Coal Pty Ltd v APESMA.8 APESMA submitted the current circumstances were similar to the factual matrix considered in the Endeavour matter. The correspondence from Ms Millar is as follows:

“We refer to the Full Bench’s decision on 22 March 2012 in Endeavour Coal Pty Ltd v APESMA [2012] FWAFB 1891 (Appin).

In that decision, the Full Bench made it clear that the good faith bargaining requirements under section 228 of the Fair Work Act 2009 (Cth) (FW Act) do not require a party to “make concessions” or to “reach an agreement”.

The Full Bench Decision further made it clear at paragraph 48 that a party is not required to put a different negotiating position to that which it wished to put. Section 228 simply requires the Company to put its negotiating position (see paragraphs [48] and [49]).

As you are well aware, BHP Coal has clearly articulated a bargaining position to APESMA, verbally and in writing on numerous occasions.

For the avoidance of doubt and without prejudice to its application to revoke the majority support determination in C2012/2476, we restate the negotiating position of BHP Coal Pty Ltd (BHP Coal) by reference to the orders APESMA has sought from FWA:

Order sought by APESMA	Negotiating position of BHP Coal in relation to order sought by APESMA
1(a) Provide to APESMA a list of subject matter that BHP Coal would be prepared to include in an enterprise agreement applying to employees at Broadmeadow Mine in respect of whom a Majority Support Determination was made on 8 July 2010.	BHP Coal is not prepared to include any subject matters in an enterprise agreement applying to relevant employees at Broadmeadow.
1(b) Tell APESMA what aspects of the latest version of the APESMA proposed enterprise agreement, if any, can be agreed.	None
1(c) Tell APESMA what changes to the latest version of the APESMA proposed enterprise agreement should be made to make it an agreement that BHP Coal would make.	None
1(d) Propose terms of an enterprise agreement that BHP Coal would be prepared to enter into.	None
2(a) to (g) Disclose to APESMA how many pay bands apply at BHP Coal’s colliery;	APESMA’s proposed orders require the production of confidential and commercially sensitive material. BHP Coal therefore objects to the production of this material under section 228(1)(b) of the FW Act. In addition, we note that APESMA has failed to articulate its claims in respect of minimum rates of pay.
2(h) Disclose to APESMA the current policy or procedure in respect of housing.	BMA’s current policy has already been provided to APESMA.
2(i) Disclose to APESMA the current policy or procedure in respect of Staff retention.	APESMA’s proposed orders require the production of commercially sensitive material. BHP Coal therefore objects to the production of this material under section 228(1)(b) of the FW Act.

We trust this makes BHP Coal’s bargaining position clear. If you require any clarification in relation to the above, please do not hesitate to contact me.”

[24] APESMA stated that the Respondent’s bargaining conduct was analogous to that of Endeavour Coal at the Appin Mine where Roberts C made Good Faith Bargaining orders similar to those sought by APESMA. 9 That decision was upheld on appeal.10

[25] Further, APESMA stated that the evidence of Mr Hamilton of the BHP negotiating team; further revealed the BHP negotiating position.

[26] APESMA in closing submissions stated:

“Mr Hamilton was part of the BHP Negotiating Team prior to the date of the first telephone meeting on 23 September. He attended every bargaining meeting other than the last meeting on 17 November 2011. To the best of his knowledge he is still part of the Negotiating Team. Mr Hamilton agreed that he was in a better position than Ms Millar to say what the bargaining position of the company was from the outset of the negotiations. It was his evidence that the bargaining position of the company had not changed from the outset. Accordingly his evidence of the company's approach to bargaining can be accepted to be the company's approach at all relevant times.

It was Mr Hamilton's evidence that:

a. The company never suggested any change to the text of the APESMA proposed enterprise agreement that it would be prepared to enter into: PN3495-3496.

b. The company never suggested any clause that it thought should be included in the proposed enterprise agreement by way of subject matter that would make it an agreement the company would enter into: PN3497.

c. At all times the negotiating position of the company was that it was not prepared to propose any terms of an enterprise agreement that the company would be prepared to enter into: PN3498.

d. It was the company's negotiating position at all times that it was not prepared to nominate any subject matter that it should be included in an enterprise agreement: PN3499.

e. Indeed at all times BHP Coal's negotiating position, as Mr Hamilton understood it, was that it was not prepared to include any subject matter in an enterprise agreement applying to staff: PN3502.” 11

[27] APESMA emphasised that the evidence of Mr Hamilton was that Ms Millar’s correspondence 12 recorded the negotiating position of BHP at all times during the negotiations. APESMA submitted that Ms Millar’s letter confirmed Mr Hamilton’s evidence; APESMA submitted:

“...In short, at all times the company refused to make any positive proposal or any positive communication or otherwise take any step which amounted to an endeavour to make an enterprise agreement, contrary to the good faith bargaining requirements as determined by the Full Bench in the Appin Decision.

The employer's approach is not surprising when regard is had to the evidence of Mr Hamilton. At PN3587, he revealed his understanding of the company’s obligations, thus:

Did you understand that there was an obligation on both parties, including the company, to make a genuine attempt to bargain, to achieve an enterprise agreement?---No.

The evidence of the General Manager, Mr Filtness, is also revealing in this regard. It was his evidence that as General Manager if there was to be an enterprise agreement he would be involved closely in the setting of the terms of such an agreement (PN1914) and would be the person who signed it (PN1915). In his role he would ensure as far as possible that it contained terms that he considered appropriate terms (PN1916). Yet in respect of the APESMA agreement he had never read it (PN1918). This is consistent with a company approach of being uninterested in the claim because the company is simply fundamentally opposed to an enterprise agreement regardless of its terms. Mr Filtness agreed with the proposition “that the company's bargaining position is that it does not want an enterprise agreement for staff” (PN2090).” 13

[28] BHP submitted that APESMA’s reliance on and characterisation of Mr Hamilton’s responses in cross-examination is a superficial analysis of BHP’s actual approach to bargaining.

[29] Mr Dixon, for BHP, submitted that the assessment of Mr Hamilton’s evidence must be considered against s.228(2) and the Minutes of the Meetings, which set out what was being discussed at meetings and the summary of the exchanges on issues at the meetings. Mr Dixon emphasised the statutory obligations in s.228(2) (a) and (b) (repeated for convenience):

“...

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

[30] Whilst the provision states, there is no requirement on a bargaining representative to make a concession or to reach agreement on the terms in an Agreement, Mr Taylor, for APESMA, argued the conduct of BHP was contrary to s.228 as the threshold position of BHP was that they did not want an enterprise agreement with Staff.

[31] Mr Taylor stated that given their bargaining position, they then did not propose or agree to a single bargaining issue. Mr Taylor stated their approach to bargaining was simply a ‘sham or pretence’.

[32] It was submitted the BHP negotiating team attended meetings; but they did not engage in true bargaining in accordance with s.228(1), with the intention of trying to reach an agreement. He stated that BHP’s approach to bargaining, was in accordance with their negotiating position (which was that they did not want a staff agreement) that is they were negotiating “not to reach an agreement.” Further, he stated their conduct was in breach of the ‘global compact’ (that BHP is a signatory to). The global compact aims to facilitate collective bargaining and freedom of association. These obligations were set out as:

“What does Collective Bargaining mean?

...

An important part of effective recognition of the right to collective bargaining is the “principle of good faith”. This is important for the maintenance of the harmonious development of labour relations. This principle implies that the social partners work together and make every effort to reach an agreement through genuine and constructive negotiations, and that both parties avoid unjustified delays in negations. The principle of good faith does not imply a pre-defined level of bargaining or require compulsory bargaining on the part of employers or workers and their organisations.” 14

Background to Negotiations

[33] On 31 May 2010 APESMA wrote to the Employer requesting the commencement of negotiations for an enterprise agreement. Mr Armitage, the then General Manager advised APESMA that further information was required before taking the matter further. On the 24 June 2012, the Employer stated that they had not started bargaining and would make up its mind as to whether they would start bargaining. On 23 July 2010, APESMA made an application to FWA for a Majority Support Determination. An Order was published by FWA on 11 August 2010.

[34] The first bargaining meeting was held on 23 September 2010. At that meeting APESMA tabled a proposed enterprise agreement. There were 10 subsequent bargaining meetings; the eleventh (the last) meeting was held on 17 November 2011. On 5 December 2011, the Employer wrote to the Union cancelling a meeting of 21 December 2011 to ‘await the determination of Fair Work Australia on this point, and consider any further action after giving due consideration to that determination’; the Endeavour decision.

[35] APESMA, in seeking the good faith Bargaining Orders, rely on the Endeavour decision.

[36] In the matter APESMA v Endeavour, 15 APESMA had been seeking to negotiate an enterprise agreement with Endeavour Coal since April 2010. A majority support determination was issued by FWA on 8 July 2010 to the effect that a majority of the staff at the relevant site wanted to negotiate with Endeavour Coal.

[37] At least 12 bargaining meetings were convened between APESMA and Endeavour Coal during the 12 month period from August 2010 to August 2011. While there were some discussions at these meetings regarding the Union claims and Endeavour Coal’s position and objections on those claims, an impasse was reached in mid-2011.

[38] APESMA asserted that the negotiations has stalled because Endeavour Coal’s real position was that regardless of the course of negotiations or the outcome of bargaining the Company was never going to agree to an agreement with staff. Endeavour Coal submitted that the parties were unable to move forward with bargaining because APESMA was unwilling to change its position on various issues raised by the Company during negotiations.

[39] The end result being that on 19 August 2011 APESMA made an application to FWA for a bargaining order against Endeavour Coal. At first instance Commissioner Roberts was satisfied that Endeavour Coal was not meeting the good faith bargaining requirements and that Orders should issue. 16 On Appeal the Full Bench affirmed this decision.

[40] The Full Bench in Endeavour Coal granted leave to appeal as the matter raised important questions generally in relation to the good faith bargaining requirements set down by the Act.

[41] In making its decision the Full Bench considered that the effect of the provisions of the Act (in particular s228(1)) went beyond simply procedural matters and extended to things such as taking reasonable steps and making reasonable efforts towards making an enterprise agreement.¹⁷ This did not extend to any obligation to make concessions or to reach agreement on terms to be included.¹⁸

[42] In reaching these conclusions the Full Bench considered that the objects of the Act as a whole and more specifically of Part 2-4 supported an approach to bargaining where parties should conduct themselves on the basis that they are to attempt to conclude an enterprise agreement.¹⁹

Revocation of Majority Support Determination Order

[43] The parties were in agreement that when the MSD Order was granted by VP Lawler; the relevant statutory provision as set out below was satisfied:

“Subdivision C—Majority support determinations and scope orders

236 Majority support determinations

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When FWA must make a majority support determination

Majority support determination

(1) FWA must make a majority support determination in relation to a proposed single-enterprise agreement if:

(a) an application for the determination has been made; and

(b) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(d) it is reasonable in all the circumstances to make the determination. (emphasis added)

(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

Operation of determination

(4) The determination comes into operation on the day on which it is made.

[44] BHP submitted that (following discussions Mr Filtness had with the Employees after the release of the Endeavour decision) a number of employees volunteered to management that they no longer sought a separate agreement and they wanted to vote again to assess whether a majority of staff employees remained in support of APESMA negotiating a Staff Agreement.

[45] On the outcome of the resulting votes, BHP applied for a revocation Order.

[46] APESMA questioned that conduct of BHP and Mr Filtness, the new General Manager of Broadmeadow Mine, in relation to the circumstances that brought about the re-vote. The MSD was made on 5 August 2010 with FWA issuing documentation of such on 11 August 2010. APESMA referred to the changed circumstances commencing from when the Endeavour Decision was released on 22 March 2012.

[47] APESMA stated this was further evidence of BHP’s opposition to bargaining for an agreement. They submitted that initially BHP had after the MSD was issued waited until the last day in the prescribed 14 day statutory period to provide the Notice of Representational Rights to employees. I take no issue with this, the Respondent acted within the period, no irregularity can be afforded to this. However, APESMA emphasised that when these notices were sent, they were sent with a cover letter that stated:

“...As you would be aware, Fair Work Australia (FWA) recently granted a majority support determination on the basis that a majority of Staff employees at the Broadmeadow mine wanted to bargain for an enterprise agreement.

The Company understands that a major motivating factor for some of you was a concern that:

the National Employment Standards (NES) and Modern Awards will reduce your current terms and conditions of employment; and

you need an enterprise agreement to ensure your current contract and safety net employment conditions will be maintained, and not reduced.

As I have previously explained to you, there are various ways that BMA can meet these concerns, without needing to negotiate an enterprise agreement.

However, the Company respects the desire of a majority of employees to enter into bargaining with BHP Coal Pty Ltd, notwithstanding FWA found you were given incorrect information on your terms and conditions.

...

From my discussions with many of you over the past few weeks, I understand that many of you did not want to be covered by an enterprise agreement. As any enterprise agreement must be ‘genuinely agreed’ to by the employees which it purports to cover, I encourage you to make your views known to me if you do not wish to be covered.

...”

[48] APESMA interpreted this as evidence of BHP’s lack of respect that the majority of employees had a desire to engage in enterprise bargaining. However BHP stated that it was indicative of the Staff’s changed view.

[49] It was submitted on behalf of BHP that there was an absence of evidence to support APESMA’s submissions, that via Mr Filtness’ (the new General Manager of the Mine), discussions with Staff he had influenced the outcome of the vote. Mr Filtness in his discussions with Staff had referred to the recent Endeavour decision and he had indicated to Staff that his personal philosophy was that a Staff Agreement was not needed; that the Staff were the leaders of the business and that a third party was not required in the relationship.

[50] APESMA refer to the events leading to the re-vote as “...a concerted campaign to overturn the determination...” 20

[51] The case authorities establish that the revocation of an Order; is a serious matter. 21 As stated the original basis for the Order being granted is not questioned (although it was objected to at the time by BHP.) The application is brought about on the basis of changed circumstances since the time the Order was made.

[52] Whilst this determination must turn on the facts of this matter at hand, I put to Counsel in the hearing, how the revocation of the Orders on the basis of changed circumstances may cause uncertainty to the operation of other provisions under the Act, which may be open to influence on parties. The example of Protected Action Ballot Orders allowing for a further vote in the face of the impact from Protected Industrial Action (after the tests for PAB Order had been met) was raised. The legislative criteria under section 443 of the Act, being satisfied at the time of making such an Order; the Order may be revoked before a ballot is taken.

[53] A PAB Order similarly may become subject to a revocation Order possibly in circumstances where changed circumstances potentially brought about due to the impending threat of industrial action, may undermine employees support for the original application.

[54] BHP strongly submitted that no influence was brought to bear on employees and the employees who raised discussions regarding a vote were named by Mr Filtness. It must be noted that through the evidence of Ms Bolger; some employees took issue with Mr Filtness naming them and quoting their discussions out of context, and without authorisation.

[55] APESMA characterised BHP’s conduct in opposing the MSD then bringing about the application for revocation of the Order as ‘revealing’.

[56] Firstly APESMA recounted that BHP in relation to the MSD made efforts to rally those opposed to the enterprise bargaining by preparing a pro-forma letter to be sent to FWA and encouraging employees to send the responses. 22 They also referred to the further covering letter sent with the Notice of Bargaining Representational rights, as mentioned.

[57] I have taken into account the detailed chronology of events set out by Mr Taylor in final submissions. 23 From the time of the release of the Endeavour decision he stated that Mr Filtness almost immediately met with staff about the organisation of the re-vote.

[58] I am not satisfied that in the circumstances the power to revoke the MSD Order should be exercised. The power to revoke an Order was considered in Appeal by National Labour and Engineering Pty Ltd as follows:

[36] The words other decisions of the Commission and any other proceeding before the Commission are sufficiently wide to include a decision to certify an agreement and the proceedings relating to an application for that certification. Thus, paragraphs 45(1)(e) and (eaa) refer to decisions of members of the Commission about certification of agreements. A recent decision at first instance, Re Rheem - Rydalmere Plant Industrial Action Order 2002 24, (Rheem),contains a discussion of the legislative genealogy of the power to revoke or set aside orders and awards, and of principles that should guide the exercise of the discretion conferred. We adopt in modified form the view there expressed and apply it to the statutory context of this matter.

[37] Subject to an application being competently made, under paragraph 111(1)(f), the power confers a discretion to revoke or set aside the relevant act of the Commission. In this instance, that discretion must be guided by the principles and considerations that go to the merits of making or refusing a certificate under section 170LJ and related provisions. The applicant must satisfy the Commission by clearly showing that the reasons for certifying the agreements sought to be set aside no long prevail. In this instance, that task effectively reduces to showing that the requirements for certification of the agreement did not exist. 25

[59] The MSD Order was competently made and the evidence and reasons for revoking it does not persuade me to revoke the MSD Order.

Good Faith Bargaining arguments

[60] APESMA relied on the Full Bench decision in Endeavour Coal Pty Ltd v The Association of Professional Engineers, Scientists and Managers, Australia (Collieries’ Staff Division) 26 in seeking Good Faith Bargaining Orders, particularly pursuant to s.228(1)(e)

[61] In response to the Endeavour decision in the matter before me the Respondent has put its negotiating position clearly, per exhibit 28 as quoted.

[62] The facts regarding the BHP and APESMA negotiations, were that 11 meetings have been held; with the involvement of senior BHP management on the negotiation team. Joint communications were issued from the Single Bargaining Unit. Four of the items sought by APESMA for inclusion in the Agreement were granted at least in part, but ‘outside’ of an Agreement.

[63] In opposing the Good Faith Bargaining Orders, BHP relied on paragraphs [48] and [49] of the Endeavour Decision that state:

“[48] The good faith bargaining requirements in s.228 require bargaining representatives to “bargain” but do not require them to make concessions or to reach agreement. An order would be beyond power if it required a party to put a different negotiating position to that which it wished to put. However it is not beyond power to require a party to put its negotiating position. Such an order requires no concessions to be made.

[49] In our view the first order does not go beyond requiring the Company to state clearly its position on the making of an agreement. This will assist the bargaining process and allow the parties to assess the possibilities of an agreement being made. It also addresses the conduct which led to the finding that the good faith bargaining requirements were not being observed. It does not require the Company to make concessions or to reach agreement. It does not require the Company to put a different negotiating position than that which it wishes to put. It simply requires the Company to put its negotiating position. The order thereby seeks to facilitate the bargaining process between the parties in a practical way even though, given the previous position taken by the Company in the negotiations, the effect of such an order might only be to bring the process between the parties to a conclusion.”

[64] As stated, BHP had already reiterated in Exhibit 28, its bargaining position and argued that the Endeavour Decision did not require it to put a different negotiating position than they wished, nor did the decision require them to ‘make concessions’ or ‘reach agreement’.

[65] APESMA argued that the circumstances of the current matter were analogous to those in Endeavour where Good Faith Bargaining Orders had been upheld; and that the scheme of the legislation required BHP to alter its conduct and approach to bargaining. The scheme of the legislation in regard to bargaining is found in part in the following provisions (as set out) ss.3, 171, 173, 228.

[66] In terms of assessing the GFB Orders and whether BHP engaged in capricious or unfair conduct that undermines collective bargaining. 27 The circumstances of the negotiations for a Staff agreement at Broadmeadow Mine have been considered in detail, some differing features to those that occurred at the Appin Mine in the Endeavour decision, emerge.

[67] There is clearly a tension in relation to the relevant statutory provisions, particularly s.228(2)(a) and (b), and the principles emerging from the Endeavour decision when considered against the GFB Orders sought against BHP’s conduct, in this matter.

[68] APESMA argued that BHP did not engage in genuine bargaining and that their conduct was capricious and unfair. From the initial meeting they, referred to BHP’s stated reluctance to adopt a Staff agreement. The issue is whether in order to bargain in good faith, BHP having stated its negotiating position should be required to concede to form an enterprise Agreement. That is conceding on this point to demonstrate genuine bargaining. Even though s.228(2)(a) and (b) state that the GFB requirements state that a bargaining representative is not required to make concessions during bargaining or in fact to reach agreement on the terms that are to be included in the Agreement.

[69] APESMA argued the opposition to an Agreement is at odds with the Objectives of the Act for FWA to facilitate Agreement making. However the Full Bench decision confirmed “it does not require the party to put a different negotiating position that which it wishes to put. It simply requires the Company to put its negotiating position.” BHP stated their negotiating position with respect to the GFB Orders APESMA sought.

[70] BHP’s bargaining position related to their threshold approach to an agreement for Staff. That is, whether in a very competitive labour market for Staff, an agreement for staff will improve flexibility and productivity. Their ability to adopt such a negotiating position is questioned. It can also be contrasted with circumstances where, in the course of ‘hard bargaining’ (that is sanctioned), the parties reach an impasse in negotiations on an important term of a proposed Agreement, such as the Wage increase. Neither the Act, nor the Full Bench decision requires the parties to make concessions or reach Agreement in the latter circumstances. What would be assessed is whether they had undertaken again all of the other conduct required of s.228(1) in assessing conduct under s.228(1)(e).

[71] Commissioner Roberts formed the view in the Endeavour decision at first instance that:

“[7] Endeavour was unwilling to enter into enterprise agreement negotiations with APESMA until it was compelled to do so by the issuing of a Majority Support Determination. From the totality of the information available to me arising from these proceedings, that unwillingness has continued in a modified form. The Company has refused to make any substantive contribution to the possible content of an enterprise agreement. In his witness statement [Exhibit Endeavour 4], Mr Aicken said:

“I disagree that I have consistently said that Endeavour Coal does not want an agreement. Rather, firstly, I have generally questioned the need for an agreement given that Staff Employees have historically never had an enterprise agreement apply to their employment. Secondly, to the extent that APESMA has put forward a draft agreement document, for the reasons discussed below, I have at various stages explained that the proposed draft agreement does not address or respond to the concerns and issues raised by Endeavour Coal. Thirdly, it does not provide to Endeavour Coal flexibility or other advantages such as improved productivity or costs savings. Finally, APESMA has not provided any offer or proposal which persuades Endeavour Coal to change the status quo and existing arrangements.”

[8] In cross-examination, Mr Aicken conceded that Endeavour felt under no obligation to put to APESMA “a proposal to enter into an enterprise agreement on certain terms” [Transcript PN1005]. Mr Aicken’s cross-examination, in my view, clearly articulates the Company’s attitude to negotiations with APESMA. That attitude is that it is up to APESMA to firstly convince Endeavour that an enterprise agreement is a good idea and secondly to provide suggested terms which are acceptable to the Company. The Company feels under no obligation to put any proposals of its own. I agree with APESMA’s Closing Submissions [Exhibit APESMA 9] in which the Union said, inter alia:

“Good faith bargaining imposes an obligation on an employer to make reasonable efforts to make an enterprise agreement. ‘Good faith bargaining’ means the parties must bargain in manner intended to conclude an agreement. If one looks at the facts of this case it is clear that whilst APESMA has been bargaining on that basis, the company has been bargaining on the basis that, to date, it does not wish to conclude an agreement regardless of its terms. That is not to say that employer cannot engage in ‘hard bargaining’. An employer does not need to make any particular concession it does not wish to make: s228(2)(a). However, if an employer simply listens and says ‘no’ (with reasons) that is conduct which is contrary to s228.

... it is a form of bargaining that amounts to a refusal to recognise the union by bargaining in a manner not intended to reach an agreement at all.

... It has said ‘no’ at all relevant times. It has never put a positive proposal. It is not engaged in ‘hard bargaining’. Rather it is simply not bargaining. Such conduct fundamentally undermines freedom of association and collective bargaining contrary to s228(1)(e).” [[2012] FWA 13]

[9] I am also satisfied that Endeavour has unreasonably refused to supply APESMA with information which it is reasonable for the Union to possess to adequately bargain with the Company. This is not in accordance with the provisions of subclause 228(1)(b) of the Act. As stated by Commissioner Smith in Finance Sector Union of Australia [[2010] FWA 2690]:

“[64] There are arguments which support the proposition that all matters over which there is bargaining taking place should be open so that each party can cost its proposals against the others objectives. In some cases a wages offer may lead to the removal of a claim for a particular conditions matter. On other occasions an employer may be concerned that its overall labour costs may be unsustainable unless it achieves certain conditions matters and to put a monetary figure on the table may create a floor it can not go below. Each negotiating party will act in their own interests and levels of confidence must be established if progress is to be made.”

[10] I agree with the observations of Commissioner Smith and also with his further statement that:

“[68] Without travelling more broadly into the concept of unilaterally altering terms and conditions of employment during bargaining, it cannot be that an employer is negotiating in good faith if it is able to alter terms and conditions or employment of persons, on whose behalf bargaining is taking place, for reasons other than those advanced to the bargainers.”

[11] In short, I am satisfied that Endeavour is ‘bargaining’ with APESMA with no real intention to negotiate an enterprise agreement. This cannot constitute bargaining in good faith in the terms envisioned by subclause 228(1)(d) of the Act.” 28

[72] As per that decision, the bargaining must be undertaken to conclude an Agreement, but s.228(2) does not require parties to make concessions or reach an agreement.

[73] However, the Full Bench in Endeavour affirmed a parties statutory bargaining entitlements, as set out in s.228(2):

[21] In the course of the proceedings we were taken to provisions in labour legislation in other countries which might provide some guidance in relation to good faith bargaining obligations. ...In this regard, we note that there is no comparable express requirement in the Act for bargaining parties to conclude a collective agreement and that the obligation on the parties to bargain in good faith is subject to the proviso in s.228(2) that they are not required to make concessions.

[74] The Full Bench further addressed GFB requirements:

[22] We were also taken to the decisions of Full Benches of the Australian Industrial Relations Commission in Asahi Diamond Industrial Australia Pty Limited v Automotive, Food Metals and Engineering Union 29(Asahi) and in Public Sector, Professional, Scientific, Research, Technical, Communications, Aviation and Broadcasting Union v Australian Broadcasting Commission 30 (the ABC case). In Asahi, the Full Bench considered the construction of s.170QK of the Industrial Relations Act 1988 (the IR Act) which provided for the Commission to make orders for the purpose of ensuring that the parties negotiating an agreement do so in good faith or otherwise facilitating the making of such an agreement.31 Although s.170QK contained some provisions somewhat similar to s.228 of the Act, it did not contain any provision equivalent to s.228(2). Notwithstanding this, the Full Bench in Asahi32 found that the terms of s.170QK of the IR Act did not extend to requiring the parties to make concessions in negotiations. The Full Bench said:

“... An Agreement is normally preceded by negotiation. Negotiation normally involves the making of concessions so as to achieve an agreement. The Commission has no power to order a negotiating party to make a concession. In the ABC case (at 12) the Commission said

‘Whilst the Commission’s role is to facilitate an agreement this should not involve requiring that concessions be made by a negotiating party.’

An agreement cannot be reached with a person who does not want to agree and negotiations for an agreement cannot take place with a person who does not want to negotiate.

It follows from the ordinary meaning of the word “negotiate” that an order that a person negotiate carries the inference that the Commission is ordering that concessions be made. Accordingly such an order is beyond power. Therefore, the Commissioner’s order that Asahi “shall negotiate ... with the AFMEU” was beyond power.” 33

[23] Although the concept of not requiring negotiating parties to make concessions has been adopted in s.228 of the Act, there are many differences between the current legislative scheme and that under the IR Act.

Proposals Granted in Negotiations

[75] In considering the GFB Orders the negotiations must be assessed.

[76] There were proposals that were granted (in part) separately but these did not form concluded terms of the Agreement and were responses to matters raised in the negotiations. BHP asserted that the changes made by BHP and BMA to policies regarding housing, working flexibility and two allowances over the period of negotiations demonstrated their responses and were not contrary to the GFB requirements under the Act.

[77] BHP stated in regard to these entitlements provided separately but during the period of negotiations, as follows:

“178. In relation to the travel allowance, the increase to the travel allowance in no way inhibits APESMA’s capacity to bargain for an enterprise agreement. APESMA still seeks a higher amount and still seeks to include this amount in an enterprise agreement.

179. In relation to overtime, the allowance paid to the very limited class of persons in circumstances of working overtime, again, in no way inhibits APESMA’s claim being pressed. That claim is pressed in respect of a much broader group of people, all staff and is sought to be included in the enterprise agreement. The payment of an allowance, for reasons that have not been shown to be in any way related to APESMA’s claim, no way inhibits bargaining.

180. Each of the changes to the Housing Policy and the Flexible Working Hours Policy applied across the Bowen Basin to all BMA mines and also other areas. Such changes were not limited to Broadmeadow. If the APESMA submission was correct, in order to “bargain in good faith” the company would be required to exclude and isolate the Broadmeadow staff from benefits made available to staff employees generally arising out of industry wide challenges. This would have the result that because of APESMA’s claims persons at Broadmeadow eligible to be covered by the proposed enterprise agreement would be deprived of the opportunity to have the benefit of the Housing Policy and Flexible Working Hours Policy enhancements. On the same basis, because of a claim for higher wages the annual wage review and increases which occurs would have to be put on hold. The FW Act does not require such an outcome.”

[78] The matters were provided by BHP as Staff entitlements outside the Agreement. This has traditionally been the approach with these entitlements. There is no indication that BHP altered its position or practices in relation to providing these entitlements to undermine or subvert the bargaining process or provide benefits outside the bargaining process to discourage employees from seeking to participate in it.

[79] The conduct of these matters being provided outside the negotiations for the Agreement does not characterise conduct that would offend the GFB authorities in this regard. There was no duplicity of reasoning put to APESMA; that is conduct where one reason given for refusing them in negotiations and another for providing the matters separate to bargaining.

[80] I concur with BHP’s submission that they did not act in contrast to the relevant case authorities, regarding the granting of entitlements outside of the Agreement. That is, BHP argued that these concessions did not offend GFB conduct. They referred to offending conduct related to circumstances where parties provided disingenuous reasons in relation to granting claims with the negotiations and then granted them outside on another basis or parties clearly stipulated a prohibition on negotiating certain matters outside the EA and then did so.

[81] Whilst bargaining on these 4 matters forms part of APESMA’s complaint that these also undermined bargaining; the case authorities stipulate this is not so. BHP summarised the accepted application of the case authorities:

“181. This is not a case of the nature that was before the AIRC in Finance Sector Union of Australia v Commonwealth Bank [2010] FWA 2690. In that proceeding having relied upon the Global Financial Crisis as a basis for saying it would not agree to wage increases in negotiations for a certified agreement, the employer then independently increased the wages of its employees directly (see paragraphs [66] to [68]). The vice identified by the Tribunal was that “it can not be that an employer is negotiating in good faith if it is able to alter terms and conditions or employment of persons, on whose behalf bargaining is taking place, for reasons other than those advanced to the bargainers”(our underlining). That clearly is not the case here.

182. Similarly, the issue noted by Commissioner Roberts in APESMA v Endeavour Coal [2012] FWA 13 at paragraph [10] 2010 does not apply in this case. 34

183. At no stage did APESMA say to BHP Coal, “You are not free, whilst these negotiations are going on, to change the policy”. 35

184. At no point did APESMA say, “If you change the policy whilst we are negotiating, that would be an absence of good faith bargaining”. 36

185. There is no evidence that there was ever a complaint during bargaining that the changes now the subject of APESMA’s complaint undermined bargaining.

Section 228(1)(f): BHP Coal recognized and bargained with the other

bargaining representatives for the agreement

186. There is no suggestion that BHP Coal did not “recognise” APESMA. The

evidence confirms that BHP Coal readily engaged with APESMA both in

meetings and by correspondence.”

[82] In improving these conditions, there is no doubt that whilst a number of these matters were under review, APESMA brought pressure to bear to improve these conditions for staff. APESMA argued that BHP did not act in good faith in terms of separately dealing with the matters. In relation to Travel Allowance BHP summarised their response as follows:

“Travel allowance

144. Ms Bolger raised the issue of travel allowance and what APESMA was seeking

($15,000.00 per annum indexed to CPI) on 23 September 2010.

145. On or about 22 September 2010175 the travel allowance was increased by BHP Coal to $11,500.00.

146. The company was first advised of the quantum of the travel allowance claim in the telephone meeting on 23 September 2010.

147. The APESMA claim was provided in a draft agreement on 7 October 2010.

148. The travel allowance was increased by BHP Coal again in or around August/September 2011 to $14,000.00.

149. That increase did not occur as a result of consultation or agreement with APESMA.

150. The adjustments to travel allowance made by the company are still insufficient from APESMA’s point of view.

151. APESMA is still pressing for more of an increase than the company has indicated to its staff it is prepared to pay, including CPI.

152. The adjustments were made following meetings between Mr Dumble and Mr

Evans in July 2012 and later with Mr Evans in focus groups in August 2012 as part of an annual assessment process and were not designed to, nor did they, negate APESMA’s bargaining position.

153. APESMA can freely continue to bargain with the company to try and persuade it to increase the allowance.” 37

[83] Accordingly BHP indicated their openness to further bargaining. It is assumed that BHP would process any such further bargaining proposals through their 2 filters for any new provisions.

[84] Similarly BHP stated as follows on Clause 16—Reasonable hours and time in Lieu.

“Clause 16 - Reasonable hours and time in lieu

154. Ms Bolger paraphrased this claim as being that “for staff who have to come back to work on days that they’re not meant to be working, they’re not rostered, that they be paid for that day”.

155. In late 2011, Ms Bolger understood, that production staff who were required to come in on a day that they were not rostered, would then be paid overtime.

156. According to Ms Bolger, that was not something that occurred as a result of consultation or agreement with APESMA.

157. Ms Bolger understood that when employee staff worked on a day on which they were not rostered to work, they did not receive payment for that day but some people did get some time in lieu. She was referring to “production oriented staff” but did not clearly articulate and did not know the precise category of persons to whom she was referring.

158. Ms Bolger was unaware that the precise nature of the change which occurred.189 Mr Filtness gave evidence that the payment applies to a limited range of persons only, namely, the deputy position in circumstances when there was a requirement to fill in for contractors by schedulers, co-ordinators and superintendants. It was an industry issue.

159. APESMA has not abandoned its claim in Clause 16 for overtime to be paid to people who work on days on which they are not rostered to work.

160. That claim applies to every employee who is a staff member covered by the proposed coverage clause of the agreement, which is far broader than the limited circumstances in which the payment is presently made.

161. There is no probative evidence that this change was made in response to APESMA claims.

162. There is no basis for concluding that the adjustment to the daily allowance was in any way destructive of APESMA’s bargaining position or contrary to the requirements of s.228(1) of the FW Act.” 38

[85] In relation to the housing policy of Housing policy. BHP explained that this was not just an issue for Broadmeadow Mine but an industry wide policy that had been up for review well before the APESMA claim and Ms Bolger was appropriately advised of the review in July 2011. Mr Evans, Head of Production – Mining (Qld), provided evidence on the application of a number of APESMA’s claims at Broadmeadow to all BHP Coal sites. He stated accommodation and turnover were industry wide issues. With respect to the Housing Policy:

“165. The revised BMA policy applicable to a range of BMA mines and other areas was provided to APESMA on 19 December 2011. The policy, inter alia, removed the preference given in the 2004 policy to “attract and retain” employees.198 The revised Policy became effective on 1 December 2011 and is to continue to apply, as amended from time to time, until it is terminated or replaced with a new Policy by BMA. All allocation of properties is at the sole discretion of BMA” 39

[86] Again BHP accepted (not apart from the revocation of the MSD Application) APESMA’s ability to further pursue such claims.

[87] BHP also summarised their response to the flexible working hours in the 9 day fortnight sought by APESMA as follows:

“171. On 18 November 2011 BMA announced through its Asset President, Mr Dumble, that on 1 December 2011 BMA would release a new Monday to Friday roster option across sites and towns. The ability to work a nine day fortnight was said to be subject to approval.

172. The Flexible Work Hours Policy introduced in December 2011 and applied to all BMA mines, was not introduced at Broadmeadow only.

173. The Flexible Work Hours Policy was not as a response to APESMA’s claims.

174. In respect of Broadmeadow, there was, in effect, no material change to the existing position. APESMA’s position was that in respect of flexible work hours there were already people at Broadmeadow who got flexible hours (nine-day fortnights).

175. APESMA does not oppose the Flexible Hours Policy introduced by the company.

176. APESMA still presses its claim in Clause 18 of the draft enterprise agreement. Thus APESMA’s claim is not negated. The BMA policy does not undermine good faith bargaining and is not contrary to the requirements of s.228(1) of the FW Act.”

Application for Production of Documents

[88] APESMA sought via a separate application an Order for the Production of Documents:

19 Order for production of documents

19.1 A party may seek an order under paragraph 590(2)(c) of the Act for the production of documents or records or any other information by submitting a draft order in accordance with Form F52 to FWA.

19.2 If the order is made, service of the order must be effected by serving a copy of the signed order in accordance with rule 9.

[89] Having been allocated this matter just prior to the hearing dates, I originally deferred consideration of these Orders on the basis that it was premature to decide these matters until I had considered the evidence and submissions, in order that matters of relevance could be fully appreciated.

[90] The Order for Production of Documents was refused. The Order was refused predominantly on the basis that I could not be satisfied that a range of the documentation was relevant, or was not privileged information or fell into the category of fishing expedition. That is, BHP argued that APESMA was taking a ‘circular approach’ developing their negotiations or arguments in this matter from such documents. A significant amount of the documentation sought was aimed at exposing the corporate decision making, beyond the dimensions required of the demands of APESMA’s application for GFB Orders. A much wider fabric of documents was not required for the assessment of the bargaining between the parties in this matter.

[91] BHP argued that the discovery exercise would require considerable time, expense and associated delay in this matter and that they would further seek the suppression of many documents based on issues of commercial sensitivity. Further, the Coal Industry is competitive commercial and labour environment; accordingly good reason is required for the production of documents that may genuinely prejudice the operations of an Employer.

[92] The Full Bench addressed some categories of the documentation and concerns as follows:

[63] However in the present matter we do not consider that it was appropriate to make the third order. The information about the salary structure and pay bands at the Mine which the Company was ordered to disclose to APESMA is, in part, information which the Commissioner ruled earlier in the proceedings to be commercially sensitive. It is possible therefore that the Company was misled as to the views of the Commissioner about the commercially sensitive nature of the material and this may have resulted in a denial of procedural fairness. Further the Commissioner did not make any findings in relation to the making of the bargaining order that the information to be provided was not “confidential or commercially sensitive” within the meaning of the exception in s.228(1)(b). Therefore there is a question as to whether all necessary matters were taken into account in making the third order. There might also be questions as to whether the order is necessary, as it would seem that such information, or at least parts of it, might be obtained by APESMA directly from its members. In these circumstances we have decided that the third order made by the Commissioner should be set aside.

[64] In making a bargaining order under s.230, the power of FWA to order the disclosure of information is limited to information which is not “confidential or commercially sensitive” (s.228(1)(b)). What is confidential or commercially sensitive will involve a decision on a question of fact in each case where that quality is asserted. 40 In this regard we recognise that considerable time and effort might have been expended by the Company upon the development of the salary structure and that an understanding of the overall operation of the structure might be limited to only a few senior employees within the Company. It is understandable that such information might be closely guarded by the Company and be considered confidential by it.41

[93] There were similarities in relation to a series of the documents sought in this matter in relation to the salary structure information, only be in the custody of senior employees and being commercially sensitive.

[94] I rely on the principle regarding consideration for the Production of documents as set out below:

“Commissioner Jones 42 cited principles which Munro J had earlier indentified should be applied by the Courts in the exercise of the discretionary power to issue a summons43:

“In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation it is usually appropriate, where the custodianship of documents of documents is not clear, to direct the subpoena to the ‘Proper officer’. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate: (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a ‘fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.”

[95] In addition to the difficulties associated with the documents regarding relevance the nature of the documents sought were wide and not identified with reasonable particularity and required a supportable case was not made out regarding a ‘legitimate forensic purpose for the production of documents’ 44 against the considerations for s228 and the revocation of the MSD, were not made out.45

Conclusion

[96] In relation to Good Faith Bargaining Orders, APESMA conceded that Orders were sought pursuant to primarily s.228(1)(e) that BHP had engaged in “capricious or unfair conduct” that undermined collective bargaining. Although APESMA also sought other wages information, s.228(1)(b), the other sections of s.228(1)(a), (b), (c), (d) and (f) were met; meetings were scheduled and the bargaining representatives were recognised after the MSD and the parties met. Meeting Agendas were exchanged, various versions of the proposed Agreement were prepared and joint communications from meetings issued.

[97] The requirements of s.230(1) and (2) have been satisfied. However in terms of s.230(3) FWA must be in all cases satisfied that:

“(3) ...

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

[98] BHP responded for clarity of their negotiating position via Ms Millar’s correspondence, as quoted.

[99] On the face of this matter if looking only at the nature of the number of Meetings, resulting lack of Agreement, the Endeavour Full Bench would be directly applicable. However a close analysis is required of the bargaining. Apart from basic facts, limited detail was provided on the nature of the actual bargaining in the Endeavour matter in the decision at first instance. Whilst there are links between the Endeavour matter and this current matter; the actual negotiations in the matters must be analysed to assess whether the bargaining was a ‘sham or a pretence’ and whether the conduct of BHP was ‘capricious’ or ‘unfair’ or that it undermined collective bargaining. Each of those terms is defined in the Macquarie Dictionary as follows:

“Capricious:a sudden change of mind without apparent or adequate motive

Unfair: not fair; biased or partial; not just or equitable; unjust”

[100] BHP’s conduct could not be described as such.

[101] In response to the Full Bench Decision in Endeavour and APESMA’s correspondence; BHP specifically articulated their bargaining position in writing as per Exhibit 28 (as set out) as required. An analysis of the negotiations against the GFB requirements satisfies s.228(1)(a), (b), (c), (d) and (f). Further given BHP’s conduct in their stated bargaining position; that the legislation does not require them to concede or to reach an agreement. Their conduct cannot be seen to be capricious, unfair or undermining collecting Bargaining.

[102] The application for revocation of the MSD is refused; I consider that ‘exceptional circumstances’ on the basis of the material provided and the chronology of events and the nature of discussions with staff have not been made out.

[103] The Endeavour Full Bench in considering GFB Orders considered the practicality of such. A MSD remains in place in the current matter. BHP have in their closing submissions indicated where it is open to APESMA to further press their claims. The opportunity to exhaust negotiations should be taken, however if it is quickly established that the parties do not wish to make concessions or if an agreement cannot be reached, it is contrary to s.228(2) to deem this to be, in the current circumstances, a basis for GFB Orders.

[104] The Minutes of the meetings provide a detailed measure of the bargaining interactions and dynamics that occurred between the parties. APESMA were asked to respond to matters & in response they sought time to gather information and provide further versions of the proposed agreement.

[105] The Full Bench in Endeavour stated the test as follows:

“[26]...[I]n effect the parties must take reasonable steps and make reasonable efforts towards making an enterprise agreement. However the good faith bargaining requirements do not require parties to make concessions during bargaining or to reach agreement on terms to be included in an agreement (s.228(2)).

[27] The objects of the Act and Part 2-4 support an interpretation of s.228 as requiring parties to approach bargaining on the basis that they are to attempt to conclude an enterprise agreement. The object of the Act as set out in s.3 includes reference to: “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations...” Good faith bargaining is intended to bring about enterprise agreements and the parties are under an obligation to try and conclude an agreement. The objects of Part 2-4 (Which contacts s.228) support this view. Subsection 171(b) states that one of the objects of the Part is to: “enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through (i) making bargaining orders...”

...

[29] Where a majority support determination is made, there is an expectation that the employer will recognise the wishes of its employees to bargain collectively for an agreement, and enter into negotiations in an endeavour to reach an agreement. Where this does not happen, a bargaining order may be sought to ensure that the obligation to bargain is fulfilled.

[30] The main question in the present case concerns whether the Company was meeting its obligation to bargain in good faith. This involved a consideration as to whether there was a real or serious endeavour being made by the Company to negotiate an agreement, having regard to the finding by FWA that a majority of its staff employees want to bargain for an agreement. If the conduct of an employer in engaging in the bargaining process is a mere sham or pretence, such as going through the motions of bargaining without any real intention to enter into an agreement, then this would be contrary to the good faith bargaining requirements. In particular, such conduct might involve a failure to give genuine consideration to the proposals of other parties (s.228(1)(d)) or it might constitute capricious or unfair conduct that undermines freedom of association or collective bargaining (s.228(1)(e)). Such conduct might also amount to a failure to recognise and “bargain” with other parties (s.228(1)(f)).

[31] In the ABC case it was said that the determination of whether or not a negotiating party is “negotiating in good faith” may depend upon the conduct of the party when considered as a whole. The Full Bench gave the following example:

“... if a party is only participating in negotiations in a formal sense but not bargaining as such then they may not be “negotiating in good faith”. Negotiating in good faith would generally involve approaching negotiations with an open mind and a genuine desire to reach an agreement as opposed to simply adopting a rigid predetermined position and not demonstrating any preparedness to shift.” 46

[32] The evidence in the present case is that in many respects the Company complied with the formal requirements of the bargaining process by participating in meetings and responding to proposals put by APESMA. However, on our consideration of the evidence as a whole, it was open to the Commissioner to conclude that the Company’s conduct was not such as to demonstrate a genuine endeavour to negotiate an agreement with APESMA. The Company has not previously had a collective agreement covering staff employees at the Mine and it is clear from the evidence that it would prefer not to have such an agreement at this time. The Company participated in the bargaining process but did not make any substantive contribution to the possible content of an enterprise agreement or put proposals of its own.”

[106] BHP argued that their “substantive contribution” to the bargaining process must be considered subject to the legislative qualification as to whether they are required to concede and reach agreement. In addition where the Full Bench construes the absence of proposals for an agreement as a crucial part of the negotiations, BHP argued there is no obligation to move positive bargaining proposals against their bargaining position.

[107] With respect to making bargaining orders I am not satisfied in relation to the circumstances of these current negotiations, that the pre-requisites pursuant to s229(4) have been met.

[108] I am satisfied at per s.230(3) on an assessment of the negotiations that BHP have met the good faith bargaining requirements. Further BHP have responded with their bargaining position in satisfaction as per s.229(4)(b), (c) and (d). This satisfaction is based on the their response (exhibit 28) together with a consideration of the negotiation and of the legislative obligations in s.228(2)(a) and (b).

[109] However the role of FWA to facilitate agreement making is recognised. The Full Bench in Endeavour stated:

“[27]...In general the legislative scheme might be described as one which seeks to promoted agreement making but which does not compel parties to make concessions or to reach agreement. There is nothing inconsistent about encouraging parties to make agreements - an imposing an obligation upon them to try to do so - but at the same time not compelling parties to make concessions in bargaining. An agreement remains what the name implies.”

[110] Accordingly in practical terms, the steps of reaching agreement were noted as being ‘consensual’. In this regard the parties are encouraged to meet, to further explore any possibilities against this background of negotiations to date, as to whether the impasse can be broken. I do not consider the bargaining to be a pretence. It is not the role of FWA, based on the context of the details of the negotiations in this matter, to implement GFB Orders that do not recognise the statutory limitations in s.228(2)(a) and (b).

[111] For the aforementioned reasons the application for Good Faith Bargaining Orders is dismissed. The Order seeking revocation of the MSD is also dismissed. I Order accordingly.

COMMISSIONER

1 Transcript of 10 May 2012, PN4109 - PN4118.

2 Exhibit 6, pp. 13-15.

3 APESMA closing submissions, paragraph [1].

4 APESMA closing submissions, paragraph [68].

5 Transcript of 20 April 2012, PN1922 - PN1924.

6 APESMA’s Outline of Submissions, [20].

7 Exhibit 28.

8 Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division) - [2012] FWAFB1891 - Boulton J, Harrison SDP and Deegan C.

9 Association of Professional Engineers, Scientists and Managers, Australia, The Collieries’ Staff Division v Endeavour Coal Pty Limited - [2012] FWA13.

10 Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division) - [2012] FWAFB1891 - Boulton J, Harrison SDP and Deegan C.

11 APESMA closing submissions, paragraph [69].

12 Exhibit 28.

13 APESMA closing submissions, pp [70]-[72].

14 Witness Statement of Mr Greg William Hamilton, Annexure GWH-14.

15 Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division) - [2012] FWAFB1891 - Boulton J, Harrison SDP and Deegan C.

16 Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division) v Endeavour Coal Pty Ltd[2012] FWA 13.

17 [26].

18 [26].

19 [27].

20 APESMA final submissions, [218].

21 Re Rheem-Rydalmere Plant Industrial Action Order 2002, Munro J, unreported, 9 April 2003, PR929970.

22 APESMA final submissions.

23 APESMA closing submissions, paragraph [108] - [202].

24 PR929970 at [35] - [40] per Munro J.

25 Appeal by National Labour and Engineering Pty Ltd [PR926487], [36] - [37].

26 [2012] FWAFB 1891.

27 S.228(1)(e).

28 Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division) v Endeavour Coal Pty Ltd[2012] FWA 13, [7] - [11].

29 (1995) 59IR 385.

30 (31 August 1994), Print L4605.

31 See s.170QK(2).

32 Diamond Industrial Australia Pty Limited v Automotive, Food Metals and Engineering Union (1995) 59IR 385.

33 Ibid at 422.

34 Paragraph 10 of APESMA v Endeavour Coal [2012] FWA 13 provides:

[10] I agree with the observations of Commissioner Smith and also with his further statement that:

[68] Without travelling more broadly into the concept of unilaterally altering terms and conditions of employment during bargaining, it can not be that an employer is negotiating in good faith if it is able to alter terms and conditions or employment of persons, on whose behalf bargaining is taking place, for reasons other than those advanced to the bargainers.”

35 See PN1121 of transcript on 19 April 2012.

36 See PN1122 of transcript on 19 April 2012.

37 BHP’s final submissions.

38 BHP’s final submissions.

39 BHP’s final submissions.

40 See Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 334 (Kirby J). See also at 325 (Gleeson CJ).

41 Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division) [2012] FWAFB1891, [63] to [64].

42 Australian Nursing Federations v Victorian Hospitals’ Industrial Association [2011] FWA 8756 at [12].

43 In re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 Print H2892 at p2.

44 Dorajay Pty Limited v Aristocratic Leisure Limited [2005] FCA 588, [34].

45 Hennessy v Wright (1888) 21 QBD 509; Griebart v Morris [1920] 1 KB 659, 666; Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101.

46 For a consideration of the concept of ‘good faith’ negotiation by Australian Courts, see also Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236, especially at pars. 145-149 (Einstein J.); Brownley v Western Australia (1999) 95 FCR 152 (Lee J.); Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [2010] WASCA 222 especially at par 94 (Murphy JA.)

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