Australasian Meat Industry Employees Union, The v T & R (Murray Bridge) Pty Ltd
[2010] FWA 1320
•26 FEBRUARY 2010
[2010] FWA 1320
The attached document replaces the document previously issued with the code [2010] FWAA 1320 on 26 February 2010.
The document has been varied to correct coding errors on pages 1 and 17.
Helen Coulson
Associate to Commissioner Hampton
Dated 2 March 2009
[2010] FWA 1320 |
|
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
v
T & R (Murray Bridge) Pty Ltd
(B2010/2659)
COMMISSIONER HAMPTON | ADELAIDE, 26 FEBRUARY 2010 |
Application for a bargaining order – good faith bargaining – vehicle for consultations – Joint Consultative Committee – genuine consideration of proposals – recognition of bargaining representative
[1] This decision deals with an application for a bargaining order as made by the Australasian Meat Industry Employees Union SA and WA Branch (the AMIEU or the union) pursuant to s.229 of the Fair Work Act 2009 (the Act). The bargaining orders are sought against T&R (Murray Bridge) Pty Ltd (T&R or the employer) and the application arises in the context of a proposed enterprise agreement to apply to the employees at its Murray Bridge plant, with the exception of maintenance employees.1
[2] The application was the subject of a hearing on 18 February 2010. On 25 February 2010, I issued certain bargaining orders2 and my reasons for so doing are set out herein.
[3] The grounds cited in the application and ostensibly relied upon by the AMIEU are as follows:
1. The respondent fails to meet the requirement of good faith bargaining under s.228(1)(a) in that meetings are not structured to take into account our availability. The respondent convenes meetings of the on site joint consultative committee and of recent times has invited us to attend those meetings.
2. The respondent fails to meet the requirement of good faith bargaining under s.228(1)(a) in that the company has cancelled meetings of the JCC to which we were invited without advising us of the cancellation. This also goes to a complaint under s.228(1)(f) in that the company treats the union as peripheral to the process of enterprise bargaining.
3. The respondent fails to meet the requirement of good faith bargaining under s.228(1)(c) in that the company will not discuss any of the log of claims submitted by the union on behalf of its members.
4. The respondent fails to meet the requirement of good faith bargaining under s.228(1)(d) in that the company refuses to give genuine consideration to any of the matters contained within the log of claims submitted by the union on behalf of its members and refuses to give appropriate responses to those matters.
5. The respondent fails to meet the requirement of good faith bargaining under s.228(1)(e) in that the company, by not negotiating with the union, undermines the principles of freedom of association which allows for members of the union to be represented in negotiations by their union.
6. The respondent fails to meet the requirement of good faith bargaining under s.228(1)(f) in that meetings of the on site joint consultative committee do not constitute meetings of the bargaining representatives. The JCC is a small group of workers and equal numbers of management designed to discuss the day to day affairs of the plant. None of the JCC to our knowledge are bargaining representatives.
7. The respondent fails to meet the requirement of good faith bargaining under s.228(1)(f) in that the company will only discuss items that have been raised by persons on the JCC who are not bargaining representatives.
8. The respondent fails to meet the requirement of good faith bargaining under s.228(1)(f) in that the company treats the union as peripheral to the process of enterprise bargaining.
[4] Mr Smith for the AMEIU outlined the history of the matter and provided a series of documents which he contended supported the capacity of the union to bring the application and provided the justification for the making of orders in this matter.
[5] In particular, Mr Smith contended that as it was the only employee bargaining representative within the meaning of the Act it was not appropriate that it merely be a part of the Joint Consultative Committee (the JCC) process for the purposes of negotiating an enterprise agreement. Further, the insistence of T&R that all negotiations were to be conducted through the JCC meant that the AMIEU had in effect been marginalised in the process.
[6] Mr Smith argued that as the members of the JCC were not bargaining representatives under the Act, the JCC should not have been used as part of the negotiation process. Further, it was contended that the employer had not responded to or negotiated the terms of a log of claims submitted by the union as required by the Act. Further, it was argued that the employer had not responded to or negotiated the terms of a log of claims submitted by the union.
[7] Indeed, the AMIEU argued that combined with the conduct as outlined in the grounds cited above, the use of the JCC represented a breach of the good faith bargaining requirements of the Act. In that light, the orders requested by the AMIEU include an order preventing the employer putting the latest draft of an enterprise agreement to the employees as presently scheduled for 5 March 20103 and requiring T&R to meet with the union and give due consideration to the claims made by it during the bargaining process.
[8] T&R accepted that the AMIEU is a bargaining representative and that it is able to bring this application. However, it contended that it had not breached the good faith bargaining requirements of the Act and accordingly no basis to consider the making of the orders existed.
[9] Mr Devey for T&R argued that it had bargained in good faith, recognised the AMIEU as a bargaining representative and had not acted unreasonably in the conduct of its negotiations. In particular, it had invited the AMIEU to all relevant JCC meetings as originally sought by the union, considered the AMIEU’s log of claims in an appropriate manner and provided it with a response to its claims.
[10] T&R contended that the Act did not prescribe any particular forum for negotiations with the AMIEU as a bargaining representative. Further, the JCC was an appropriate forum, with the union invited to attend, for the conduct of agreement negotiations.
[11] Having developed the agreement over a long period of time, further discussed the matter with the JCC and now provide a response to the union’s log of claims, the employer argued that it was now entitled to put its proposed enterprise agreement to the employees for their approval.
[12] Mr Devey rejected any notion that the Act required it to meet separately with a bargaining representative and denied that the AMIEU had been marginalised by the bargaining process it had adopted.
The history of the negotiations
[13] Based upon the material before me the following history of the negotiations leading to this point emerges.
[14] T&R is a major employer in the pastoral and meat industry and conducts a significant meat processing facility at its Murray Bridge plant. After taking over the plant, T&R has utilised Australian Workplace Agreements and more latterly, Individual Transitional Employment Agreements to establish employment conditions within the plant. T&R have since 2009 sought to establish a collective agreement.
[15] The Murray Bridge plant employs in the order of 900 workers and the AMIEU has significant membership amongst that group. That membership is apparently recognised by the employer to be in the order of 200.4 The AMIEU is a bargaining representative within the meaning of the Act.
[16] In 2008 and early 2009, T&R conducted negotiations for a collective agreement under the then applicable terms of the Workplace Relations Act 1996. These negotiations were conducted through the JCC, and although the AMIEU was offered a seat at the JCC for the purposes of those discussions5, it refused apparently on the basis that what was being proposed at that time was a non-union agreement.
[17] T&R were notified in mid 2009 by the relevant Commonwealth agency that the AMIEU purported to be a bargaining representative under the Act.
[18] A proposed enterprise agreement was put to the employees by T&R in mid 2009 but it did not receive majority employee support.
[19] The JCC is a workplace consultative body that has been established for over ten years by T&R for the purposes of consultation with the workforce. The AMIEU has indicated support for the concept as a general workplace consultative committee. Its eleven members are employee representatives who are elected by various workgroups and whilst the present chair of the JCC is the Group Operations Manager, management representatives apparently attend as non-members of the committee. The union is not a member of the JCC.
[20] At the point of bringing this application, none of the employee representatives on the JCC were bargaining representatives within the meaning of the Act.
[21] Shortly after the rejection of the proposed agreement in mid 2009, there was some discussion between representatives of T&R and the AMIEU. T&R were seeking to meet with the JCC in order to obtain feedback on the reasons for the rejection of the proposal. The AMIEU advised of its desire to be involved in the negotiations for any new proposal. Indeed, the AMIEU sought an assurance that it would be invited to all JCC meetings that would consider any new agreement and this was agreed by T&R. There is a dispute between the parties as to the precise context for that understanding.
[22] The AMIEU contend that it had requested separate negotiations with T&R at this point and only sought an assurance about being invited to JCC meetings when it became clear that T&R would only be conducting negotiations in that context. T&R contend that the union did not request separate negotiations at that point.
[23] What is clear is that T&R had always intended to conduct enterprise agreement negotiations in the context of the JCC and maintains that view today. It is also the case that on 31 July 2009, the AMIEU did formally request a meeting to discuss the negotiation of an employee collective agreement6 and a request to be invited to attend JCC meetings does not of itself represent an endorsement of the employer’s intentions in that regard.
[24] On 21 August 2009, the AMIEU wrote to T&R and advised that it was a “bargaining agent” under the terms of the Act and that its members had indicated a desire to negotiate a new collective agreement with the employer. The union sought that T&R confirm its intentions in that regard.7
[25] T&R responded to the AMEIU on 28 August 2009 and advised that it was prepared to enter into negotiations with the AMEIU “as part of an overall negotiation process with our employees regarding a new Employee Collective Agreement”. Further, the employer advised that it would be advising all employees of its intention to negotiate a new agreement and inviting employees to confirm whether they intended to appoint a bargaining agent to represent them, noting that not all employees are members of the AMIEU.8
[26] Meetings of the JCC were conducted to advance the proposed agreement in October, November and December 2009 and in January 2010. I will return to these meetings shortly.
[27] In January 2010, T&R confirmed a position in light of the union’s log of claims.9 This took place in the context of a JCC meeting conducted on 21 January10 and the response involved an indication that the claims were unrealistic. A summary of the changes that would be made to the then existing draft and a list of benefits said to be provided by the company’s proposed agreement was also provided at this stage. T&R also indicated that a response to the log of claims would be provided later. I will also return to the detail of this aspect later in this decision.
[28] On 29 January 2010, the AMIEU wrote to T&R and raised a number of concerns about the bargaining process. These included an allegation that the employer had simply dismissed the union’s log of claims “without providing a proper response to our claims as provided for by the Act”, and raised the number of employer representatives at JCC meetings and concerns about the timing of those meetings. The union alleged that T&R was not bargaining in good faith and reinforced that it was a “bargaining agent for a large part of your workforce”.11
[29] The union wrote again to T&R on 3 February 2010 and asserted in effect that the JCC had little to do with the negotiation process and sought a meeting directly with management in order to negotiate the enterprise agreement.12
[30] On 3 February 2010, T&R responded to this and the earlier correspondence from the union and confirmed that the management and owners had considered the union’s log of claims over the Christmas/New Year period and as advised at the earlier JCC meeting “The outcome was simply that the Owners found the log of claims to be commercially unrealistic to adopt, either wholly or in part”. T&R also outlined the basis of the attendance of management representatives at the JCC and acknowledged that the “union is the only formally appointed bargaining agent but also understand non-union employees are relying on the non-union members of the JCC to represent their interests .....”. T&R specifically denied that it had not been bargaining in good faith.13
[31] On 5 February 2010, the AMIEU wrote to T&R and confirmed its view that the JCC and the agreement negotiating processes should be different and that “we do not consider that an invitation to sit on your consultative meetings to be bargaining in good faith”.14 The union again sought that a meeting between itself and management be organised and foreshadowed this application.
[32] This application was filed on 10 February 2010.
[33] T&R responded on 10 February 2010 and advised that it was already complying with the requirements of s.228 of the Act. It also advised that “the current approach of holding negotiations with the JCC together with you (the Union) as being an entirely fair, equitable and legal way of advancing “good faith bargaining” .....”.15 T&R also advised the union by phone that it would be convening a JCC meeting on the next day for the purposes of holding further discussions on a site enterprise agreement including providing a detailed response to the union’s log of claims and confirmed an invitation to attend.
[34] The JCC meeting took place as scheduled on 11 February 2010 and the AMIEU did not attend. T&R provided a verbal response to the log of claims, fine-tuned an aspect of the proposed agreement and sought feedback on how the matter should be progressed. Having done so, T&R took the view that the JCC wanted the company’s latest proposed agreement to be put to the employees for a vote.
[35] T&R wrote to the AMIEU on 12 February 2010 and confirmed the outcomes of the JCC meeting on the previous day and its intention to take the necessary steps for a ballot of employees to be conducted on 1 March 2010.16 I note that the workforce was subsequently advised of that intention.17 T&R also advised the union that a number of JCC members had now sought to provide written nomination as a “bargaining agent” for the proposed enterprise agreement. Copies of these nominations were tendered during these proceedings.18
[36] On 12 February 2010, T&R also provided a comprehensive written response to the AMEIU on the union’s log of claims.19
[37] In all, there were four meetings of the JCC attended by the AMIEU that have considered the proposed agreement following the rejection of the earlier proposal in mid 2009. Two meetings in which an explanation of the proposed agreement being advanced by the employer was provided; during one meeting the AMIEU spoke to its log of claims; and the final meeting was conducted on 21 January 2010 as outline above. I will return to the detailed issues arising from the JCC process as part of my consideration of this matter.
The capacity to bring the application
[38] Section 229 of the Act provides as follows:
“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.
Multi-enterprise agreements
(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation 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 21 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
(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
(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; 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.”
[39] There was no contest from T&R that the AMIEU was able to bring this application. I am satisfied that the AMIEU is entitled to make this application and that the requirements of s.229 as relevant have been met. This includes my satisfaction that the union has held the relevant concerns and raised these with the employer and provided a reasonable opportunity for it to respond. Whether the concerns of the AMIEU are well founded is ultimately the major focus of this decision.
The prerequisites for the making of a bargaining order
[40] Section 230 of the Act provides as follows:
“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
(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.
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;
(c) a scope order in relation to the agreement is in operation;
(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).”
[41] The good faith bargaining obligations are defined as follows by s.228 of the Act:
”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;
(c) responding to proposals made by other bargaining representatives for the agreement 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;
(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.”
[42] For completeness I also set out the objects of the relevant part of this Act in s.171 as follows:
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:
(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.
Consideration
[43] In order to enliven the discretion to consider the making of a bargaining order I must be satisfied that, in this case, T&R have not met or are not meeting the good faith bargaining requirements of the Act.
[44] In my view, the requirements of s.228 must be applied in the particular circumstances of each case. Whilst general principles may emerge from other decisions of Fair Work Australia (FWA), the pursuit of simple, flexible and fair collective bargaining requires that the particular circumstances, dynamics and context of each application be weighed in applying the statutory requirements. Further, there is no general discretion for FWA to merely prescribe an alternative “fairer” bargaining process in the absence of a positive finding that the good faith bargaining obligations have not been met.
[45] I have set out the history of the matter based upon the tendered material and the submissions of the parties. Neither party led sworn evidence in this matter but provided what is often referred to as “bar table” evidence.20 In that context, I have resolved the factual disputes based upon any concessions that have been made during the submissions and having regard to the fact that the onus is upon the AMIEU to demonstrate the grounds of the application.
[46] In terms of those grounds that relate to when and how the JCC is convened21, I am not persuaded that T&R have not met the good faith bargaining requirements of the Act on those matters. The JCC is clearly established as a body by T&R and largely convened to meet the convenience of the local management and nominated JCC representatives. However, the AMIEU have been given notice of the meetings and although some meetings have been postponed, advanced notice was apparently given on almost all occasions. The one meeting where a cancellation was made without notice to the union was the result of particular circumstances and some explanation was provided during these proceedings.22 In the absence of more substantive evidence about the convening and cancellation of JCC meetings, I am not persuaded that these grounds have been made out.
[47] Having considered each of the grounds relied upon by the AMIEU in the context of the negotiations, in my view, two substantive and related issues arise in terms of the good faith bargaining requirements of the Act. Firstly, whether the apparent insistence of T&R to conduct negotiations through the JCC as opposed to conducting separate negotiations with the AMIEU as the (then) only bargaining representatives, led to non compliance with s.228 of the Act. Secondly, whether the manner in which T&R has responded to the AMEIU log of claims represents a failure to respond or give genuine consideration to the proposals or is otherwise capricious or unfair within the meaning of the relevant provision.
[48] In effect, the proposition advanced by the AMIEU is that as the only recognised bargaining representative, negotiations should be conducted directly with it. The failure by the employer to do that in this case is said to have undermined the role of the AMIEU and the principles of freedom of association which specifically allow their members to be represented in that way. The AMIEU liken the use of the JCC to a circumstance where there are multiple bargaining representatives and as a result, the bargaining becomes problematic.
[49] Amongst other considerations, T&R in effect contend that it has met with and recognised the AMIEU and T&R’s use of the JCC as the vehicle for these negotiations does not distract from that fact.
[50] In this case, the AMIEU recognised that T&R were going to use the JCC as the vehicle and prudently, from their perspective, insisted that they be invited to any JCC meeting where the terms of the proposed new agreement were to be considered. Based on the material before me, the first occasion where the union clearly raised their objections to the JCC process was in January 2010. It had earlier sought to meet with T&R to pursue negotiations and as I have already found, sought assurances that it be invited to the JCC when the new agreement was to be discussed.
[51] There is also an indication in the employer’s correspondence that it had met separately with the union on some occasions prior to early February 201023 however, there is no detail of those discussions before me and it is clear on both cases as presented that the JCC has been the employer’s focus for negotiations.
[52] In all of the circumstances of this case, I do not accept that conducting negotiations for an enterprise agreement in the context of a group such as the JCC is of itself inappropriate or lacking in good faith. It is reasonable for the employer in a large workplace such as T&R to utilise the JCC to consult with the broader workforce, hear and consider workplace concerns and seek feedback on proposed terms of any agreement. It is also convenient to do so, provided that the role of the union as the bargaining representative is genuinely recognised. In this case, compliance with the good faith bargaining requirements or not is more a product of how the committee and the bargaining is conducted and how the employer responded to matters raised by the bargaining representative, rather than the structure of the negotiating forum itself.
[53] It is therefore convenient to also now deal with the second substantive issue as I have identified; namely the response to the issues raised by the union through its log of claims.
[54] Although the employer provided a response of sorts to the log of claims including at the JCC meeting conducted on 21 January 2010, I do not consider that this indicated a genuine consideration of the proposals as contemplated by s.228(c) of the Act. It is clear that there is no obligation on the employer to make any concessions (s.228(2)) and I do not consider that each element of the claim required a comprehensive position to be advanced. However, the response by T&R was dismissive and very general, and did not provide a response to the various claims that could actually assist the parties to advance their negotiations in any way.
[55] The timing of the negotiations and the impact of a capital works program at the plant may well have meant that it needed some time to consider and properly respond to the many issues raised in the log of claims. However, any move to finalise its position without having responded and held genuine discussions with the AMIEU as the bargaining representative in that context, is not consistent with the good faith obligations of the Act. The intended process of informing the union of its response at the JCC meeting so late in the process also in my view fails to recognise the rights and obligations of the bargaining representatives. This aspect is indicative of the failure to genuinely recognise the AMIEU as the bargaining representative.
[56] T&R subsequently provided a substantive response to the log of claims at the JCC meeting as conducted on 11 February 2010, and confirmed this to the AMIEU in writing on 12 February 2010. This in my view is in the nature of a response that is required to meet the relevant obligations of s.228 of the Act and could in other circumstances have provided the basis for some genuine negotiation with the AMIEU.
[57] Given that by this time, the union had clearly signalled an intention not to participate in the JCC process, there is no doubt that it would have been more appropriate for T&R to have agreed to meet the AMIEU to directly discuss the issues and its response to the log of claims. That is, this was the first substantive response to the issues raised by the AMIEU as the bargaining representative of a significant group of employees to be covered by the proposed agreement, and some discussion and joint consideration of the respective positions was clearly warranted. As alluded to above, the AMIEU’s role as the bargaining representative required the employer to respond to the claims in a timely manner, and attend and participate in bargaining meetings with it as was reasonable. The issue is then whether in all of the circumstances T&R has complied with the requirements of s.228 of the Act.
[58] Although the AMIEU had earlier attended the JCC, T&R were clearly on notice that the union wanted a proper response to its claims and to bargain the terms of the proposed agreement and did not consider that the JCC meeting was a substitute for direct discussions. Importantly for present purposes, the AMIEU had filed this application seeking relief and had formally put the JCC process into issue when seeking that T&R meet with it to conduct direct negotiations. In that light, the action of the AMIEU to not attend that particular JCC meeting was not unreasonable.
[59] In all of the particular circumstances operating here, the failure of T&R to properly respond to the log of claims, its insistence to only do so through the JCC at the very final stages of negotiations, and its decision to then conclude negotiations without having had any discussions with the AMIEU (as the only employee bargaining representative under the Act) on their response to the variety of issues that the union had raised, does constitute a failure to bargain in good faith. In reaching this conclusion, I have considered the fact that the employer has ultimately provided a response to the log of claims. However, I do not consider that it is appropriate for me to simply assume that there would be no difference if a good faith process had been followed and ultimately there has been no further negotiations with the bargaining representative in light of the very belated response to the claims.
[60] On this basis sections 230(2)(a) and (3) have been met and given my earlier findings, I am satisfied that the prerequisites for the consideration of a good faith bargaining order have been made out by the AMIEU.
[61] I must therefore consider whether I should in all of the circumstances make an order as contemplated by s.230(1) of the Act.
[62] The purpose of a bargaining order is established in part by the provisions of s.231 of the Act as follows:
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.
[63] Given that the making of such orders by FWA is contemplated by s.171 of the Act as a means by which the other objects are to be met, the making of an order should in my view be positively considered in consequence of a positive finding pursuant to s.230(3). However, the Act makes it clear that these orders are to be issued only where it would be reasonable to do so in the circumstances (s.230(1)(c)).
[64] The orders sought by the AMIEU are as follows:
1. That meetings of bargaining representatives who were appointed prior to the date of this order being made, be scheduled as soon as suitable to the bargaining representatives.
2. That the meetings occur on a scheduled basis.
3. That the respondent will give genuine consideration to all items raised by the union and respond to each of those items in a timely fashion.
4. That the respondent shall recognise the AMIEU as a valid bargaining agent.
5. That the respondent shall advise all of its employees of the affects of the NES.
6. That the respondent not conduct a ballot to seek approval from the employees for the terms of a collective agreement until such time as orders 1-5 have been complied with.
7. Such other orders as Fair Work Australia deems appropriate.
[65] I have carefully considered whether it is reasonable to issue bargaining orders given all of the circumstances here. In particular, I have earlier outlined my views about the circumstances applying at the time of the last JCC meeting. On balance, I find that the intervention of bargaining orders is the reasonable course of action. The scope and nature of the orders as issued by me do ultimately reflect the basis of my earlier findings.
[66] Accordingly, I have made orders requiring meetings with all bargaining representatives and a process to deal with the factors that I have found led to an absence of good faith bargaining. In particular, I have required that T&R meet with the AMIEU and any other bargaining representative (including any employees that are now validly nominated as such under the Act) and that it genuinely consider and respond to any issues that may be raised by the AMIEU in light of the employer’s recent written response to the union’s log of claims. Given my views about the JCC and related matters, I have not specified the format or context for the meetings required by the orders. In the event that this cannot be agreed, it may well be appropriate for T&R to meet separately with the AMIEU but ensure that any other valid bargaining representatives are also given the opportunity to advance any remaining issues. I leave open the possibility of making further orders in the unlikely event that the parties cannot agree upon the timing and protocols for any meetings.
[67] I have also made an order requiring T&R to advise all employees as to the import of the National Employment Standards (NES) on the existing employment conditions and any proposed agreement as part of any subsequent pre-approval process as contemplated by s.180 of the Act. I have done so noting that Mr Devey appropriately recognised that there are particular issues arising in this enterprise as a result of the impact of the NES.24 I consider that the provision of this information is conducive to employees subsequently making a genuine assessment of any proposed agreement, as contemplated by s.188 of the Act.
[68] In terms of draft order 6, I have no doubt that an order of that nature fits squarely with the scope of order contemplated by s.231(1) and the provisions of s.231(2) are illustrative but not exclusive examples. However, I have considered whether I have the power to make such an order given other provisions of the Act. In that context I note s.255 of the Act which provides as follows:
255 Part does not empower FWA to make certain orders
(1) This Part does not empower FWA to make an order that requires, or has the effect of requiring:
(a) particular content to be included or not included in a proposed enterprise agreement; or
(b) an employer to request under subsection 181(1) that employees approve a proposed enterprise agreement; or
(c) an employee to approve, or not approve, a proposed enterprise agreement.
(2) Despite paragraph (1)(a), FWA may make an order that particular content be included or not included in a proposed enterprise agreement if the order is made in the course of arbitration undertaken when dealing with a dispute under section 240.
Note: FWA may only arbitrate a dispute under section 240 if arbitration has been agreed to by the bargaining representatives for the agreement (see subsection 240(4)).
[69] I have sought specific submissions from the parties on this matter in light of certain comments made in other matters before FWA.25
[70] T&R submitted that s.255 of the Act precludes the issuing of an order which would cancel or defer the ballot as planned. That is, the order as sought by the AMIEU would, it argued, deny the employees the opportunity to vote for the agreement and accordingly, would require employees not to vote for the proposed agreement.26
[71] The AMIEU submitted27 that s.255 would not be offended where a finding has been made that positive obligations should be made for a party to give consideration to matters and the effect of the order would be to defer the conduct of a ballot until those obligations had been met. In so doing, the union invited me to follow the “obiter” comments of Watson VP in NUW v Chep Australia at par 43.28
[72] His Honour said:
“[42] Section 255 clearly prevents the Tribunal from requiring an employee to vote against a proposed enterprise agreement. An order that would have the same effect is also not available. I do not believe that the limitation is necessarily confined to orders which relate to the outcome of bargaining. In some cases orders may infringe the section if they deal merely with process issues. Whether a particular order is contrary to s 255 depends on the nature of the order, and the effect of the order in the circumstances of the case.
[43] In my view, the better interpretation of the provisions is that an order that delays a vote, provided it be only for a short time and does not in substance deny employees the opportunity to vote for an agreement, is not precluded by s 255. In a given case the facts will need to be considered to determine whether intervention of this nature by deferring a vote has the effect precluded by s 255.”
[73] On one hand, the decision to grant an order would have the effect of delaying the employees from voting and potentially approving an agreement at this point in time. However, depending upon the context set by any other orders, an order of this sort does not prevent the proposed agreement ultimately being put to the employees and no judgement about the actual content or merit of the agreement is being made through the issuing of such an order. Further, the failure to grant an order of this sort when a finding that good faith bargaining has not taken place in the lead up to an intended vote, would undermine the effect of the other orders and the legislative intent which is apparent from the objects and s.231 of the Act.
[74] I am satisfied that FWA has the power to make an order delaying a ballot to enable further good faith bargaining steps to be undertaken. Further, I consider that this step should not be taken lightly but be considered where the suspension of the ballot process, pending further developments as contemplated by the Act, is clearly warranted in order to ensure good faith bargaining will take place.
[75] In this case I am satisfied that it is appropriate to do so.
[76] The bargaining orders were made by me on 24 February 2010 as PR994119.
COMMISSIONER
Appearances:
B Devey for T & R (Murray Bridge) Pty Ltd.
G Smith for The Australasian Meat Industry Employees Union.
Hearings:
2010.
Adelaide:
February 18.
Written submissions
2010.
February 23, 24.
1 Separate negotiations are proceeding for the maintenance employees at the plant.
2 PR994119.
3 The ballot was originally scheduled for 1 March 2010 however in supplementary materials filed by T&R, the later date was confirmed.
4 Exhibit A7.
5 Exhibit A14.
6 Exhibit A13.
7 Exhibit A1.
8 Exhibit R1.
9 The Union presented a log of claims during 2009 – Exhibit A12.
10 Confirmed in Exhibit A10 in the form of notes provided by Mr Mckay, the Group Operations Manager.
11 Exhibit A2.
12 Exhibit A5.
13 Exhibit A3.
14 Exhibit A6.
15 Exhibit A7.
16 Exhibit A8.
17 On 16 February 2010 - exhibit A11.
18 Exhibit R3.
19 Attached to Exhibit A8.
20 T&R did subsequently provide an affidavit confirming many of the assertions made by Mr Devey during the proceedings, which was provided as part of the supplementary submissions. Given that this was outside of the additional material as sought by FWA and was not subject to cross-examination, I have not drawn any negative inferences against the AMIEU from the absence of contrary evidence.
21 Grounds 1 and 2 of the application.
22 Exhibit A9.
23 Exhibit A3.
24 Transcript xxxx.
25 I sought supplementary submissions from the parties on this point on 23 February 2010. In so doing I drew to their attention some decisions of FWA on the issue including NUW v CHEP [2009] FWA 202 per Watson VP.
26 Written submission 24 February 2010.
27 Written submission 23 February 2010.
28 [2009] FWA 202.
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