RECOMMENDATION

Fair Work Act 2009
s.229 - Application for a bargaining order

Australian Rail, Tram and Bus Industry Union
(B2015/1176)

COMMISSIONER LEE

MELBOURNE, 25 AUGUST 2015

Application by the Australian Rail, Tram and Bus Industry Union for a bargaining order.

[1] The Australian Rail, Tram and Bus Industry Union (the Union) have made an application for a bargaining order. The application seeks that orders be made compelling Metro Trains Melbourne Pty Ltd (Metro) to provide various information to the Union.

[2] The orders sought are as follows:

“1. Metro Trains Melbourne Pty Ltd will within 3 days of this Order being made provide the Australian Rail Tram and Bus Industry Union with the following information:

(a) A full list of all employment positions and/or employee titles within the operations area at Metro, including but not limited to, positions performing work at a clerk, engineering, senior officer classifications/grade or other administration position under the current Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2012-2015 or on a common law contract subject to the relevant Modern Award; and

(b) Position descriptions for all positions in the operations area at Metro; and

(c) A written explanation and any other relevant information and supporting documentation describing the mechanism/s that Metro is using to determine how current and new positions are being benchmarked against grades in the existing classification structure under the current Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2012-2015.

2. Metro Trains Melbourne Pty Ltd will in future bargaining comply with its good faith bargaining requirements as a bargaining representative by disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner.”

[3] The matter was listed before me for conference on 24 August 2015. At the conclusion of the conference I indicated I would issue a recommendation. What follows is that recommendation.

[4] It is apparent that the Union and Metro agree that the Metro Trains Melbourne Rail Operations Enterprise Agreement (the proposed agreement) will cover rail operations division employees and extend to the same classifications as those covered under the existing Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2012-2015 1 (the current agreement). However, the Union is concerned that Metro is not applying the current agreement to some classifications who the Union assert ought to be covered by the current agreement. While the Union did not fully articulate this claim during the conference, it appears that the information sought under the order is directed to resolving that issue.

[5] In response to the information sought in sub paragraph 1(a) of the Unions draft order, Metro have supplied a Metro Organisation Chart dated May 2015. Metro confirmed that the document represented a full list of employment positions and/or employee titles within the operations area at Metro including but not limited to, positions performing work at a clerk, engineering, senior officer classifications/grade or other administration position under the current agreement. This meets the request of the Union for information with the exception of the information pertaining to employees on common law contracts subject to the relevant award.

[6] In response to the information sought in sub paragraph 1(b) of the Unions draft order, Metro have supplied position descriptions for all positions in the operations area at Metro covered by the current agreement.

[7] In response to the information sought in sub paragraph 1(c) Metro agreed before me to supply the information to the Union that is sought in 1(c) (with the exception of confidential or commercially sensitive information) This information will be provided by close of business Thursday 27 August 2015.

[8] It is apparent that information sought by the Union pursuant to the draft order have been or will be supplied by Metro. I therefore express the view that in the circumstances there is no utility in making the orders sought.

COMMISSIONER

1 AE896187

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, the Australian Rail, Tram and Bus Industry Union sought a bargaining order against the Pacific National, a major rail freight operator. The union argued that the employer had failed to engage in good faith bargaining over an enterprise agreement. The union contended that the employer had not made a genuine effort to reach an agreement and had imposed certain terms and conditions unilaterally. The court was required to determine whether the employer had indeed failed to bargain in good faith and whether the union had met the necessary criteria to be granted a bargaining order.

The primary legal issue before the court was whether Pacific National had acted in bad faith during the bargaining process and if the union had satisfied the requirements for a bargaining order under the Fair Work Act 2009. The court considered the conduct of both parties, the communications between them, and the efforts made to reach an agreement. The union had to demonstrate that it had made reasonable endeavours to negotiate and that the employer had not reciprocated in good faith. The court also examined whether the employer's actions constituted a failure to bargain genuinely and whether the union had provided sufficient evidence to support its claim.

The court found that Pacific National had not engaged in good faith bargaining, as it had not made reasonable endeavours to reach an agreement and had imposed certain terms without proper negotiation. The union had sufficiently demonstrated its efforts to negotiate and the employer's failure to reciprocate. Consequently, the court granted the union's application for a bargaining order, directing the employer to bargain in good faith with the union to reach an enterprise agreement. The court emphasised the importance of good faith bargaining and the need for employers to engage constructively with unions.

Australian Rail, Tram and Bus Industry Union

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Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established