Australian Workers' Union, The v Mett Pty Ltd

[2016] FWC 7231

[2016] FWC 7231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Australian Workers’ Union, The
v
Mett Pty Ltd
(B2016/1026)

COMMISSIONER RYAN MELBOURNE, 7 OCTOBER 2016

Application for a bargaining order - reinstatement - order not issued.

[1] The following decision, now edited, was given extempore on 6 October 2016.

[2] For the purposes of the application I am satisfied that an application for an order has been made. I’m satisfied that the employer has agreed to bargain. I’m satisfied that the applicant complied with the requirements of subsection 229(4) of the Act. Being satisfied to that level is sufficient for me to then proceed to determine whether or not I can then deal with the other matters that I have to deal with under the provisions of s.230 of the Act.

[3] I intend to proceed on the following basis. I’ll come back to this if I need to. I’ll proceed on the basis that I am satisfied that the Applicant has made out its case that the Respondent has engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining, and that the Applicant has made out its case that the Respondent has failed to disclose relevant information other than confidential or commercially-sensitive information in a timely manner.

[4] The circumstances in this case, and it relates to one of the very specific orders being sought by the Applicant, concerns the termination of employment of Mr Nguyen in circumstances where that termination occurs during a bargaining process. I accept that Mr Nguyen plays a valuable role for the AWU in the workplace, and on that basis it’s reasonably clear that the collective bargaining processes and freedom of association processes that would normally apply will be significantly assisted by Mr Nguyen’s presence in the workplace. It would also clearly assist the AWU as the default bargaining representative for its members to effectively represent them with Mr Nguyen in the workplace. That’s why I can say I can proceed on the basis that the Applicant’s made out its case.

[5] It seems to me that the critical issue in this matter is the operation of s.230(1)(c). The Commission has to be satisfied that it’s reasonable in all of the circumstances to make the order. If I approach that section on the basis that I’m satisfied that the applicant has made out its case that the employer has engaged in conduct which breaches the good faith bargaining requirements, which is what I have to be satisfied of in relation to s.233(a), it appears to me that I have to consider very carefully the utility of the orders being sought and I have to consider it in the context of the circumstances in which the parties find themselves in today.

[6] It is absolutely clear from the evidence before me, and in particular the witness statement of Mr Anderl and also from the submissions from Mr Follett, what has happened recently in this company is that it has been clobbered by the American customers who take the products. As Mr Follett made very clear, some 41 positions disappeared overnight because of the conduct of the Americans cancelling the contracts that they’ve had with the Respondent, and that is not just on the basis of the oil pan contract but also the second contract referred to in Mr Anderl’s front cover contract.

[7] The circumstances which the parties face at this point of time is a company which prior to the incident giving rise to the dismissal of Mr Nguyen seems to have been a well-positioned company with a good export market, and it’s gone from that to being a company where two extremely significant export orders have been cancelled overnight and where the company has little time to react to that, nor can it necessarily simply move its product into another market or move itself into another market. These are practical circumstances which face the Commission, and they are practical circumstances which face the parties. They are directly relevant to a consideration as to whether or not it would be reasonable in all the circumstances to make the order sought by the applicant.

[8] I take the view that even when and if convinced that the employer has acted in breach of the good faith bargaining orders and has done so in a way which has led to the dismissal of Mr Nguyen, whether any order being made by the Commission in this matter, whether it’s an order for the production of relevant information relating to the redundancies, or whether it’s an order for reinstatement, I have real doubts - they’re fundamental doubts - as to whether it could have any positive impact on the bargaining process. I say that because this application for a bargaining order relates to a bargaining process which has been ongoing. It relates to a bargaining process which has started at a time well before the market dynamics for this company’s products have changed so dramatically and in such a deleterious way for both the employer and employees. So the bargaining process which was underway will bear no relationship to any bargaining process which may continue into the future. That’s not a commentary on the parties changing their positions, it’s not a commentary on anyone changing their attitudes; it simply is a recognition that a company that looked as if it’s got a viable future with good export orders, once someone pulls a rug out underneath your feet, circumstances change fundamentally and drastically.

[9] In those circumstances, what, if anything, would be the utility of making an order to put Mr Nguyen back at work in circumstances where even if there was no challenge to such an order his longevity in employment is highly problematic given the circumstances currently facing this company. As Mr Follett made clear, 41 positions went but not 41 employees. If the company has to eventually re-position its workforce to meet its actual needs, it appears apparent that further redundancies will take place. No order of the Commission, certainly no order under the bargaining order provisions, could guarantee Mr Nguyen continuing and ongoing employment. It could do no more than put him back for a short period of time.

[10] Having considered all of the material that’s put before me, I have every sympathy for Mr Nguyen and I have every sympathy for the union. I do not consider that the application was made frivolously or without reasonable cause. I do not consider that it was a course of conduct by a union simply doing a dummy spit over the dismissal of a particular employee. Certainly at the time and in the circumstances that the application has been filed, I am quite happy to accept the bona fides of the union in pursuing a bargaining order for a bargaining order purpose. But that was at the time people were putting their minds to drafting up this order. The circumstances have so changed since then, mainly because of the information which is now clearly available to the union, so they can understand the circumstances of the loss of contract of the oil pan contract and the front cover contract, but in those circumstances the world has moved, and moved so dramatically; it’s almost as if we’re in a parallel universe. If you’re a science fiction fan there are wonderful stories about, you know, what happened if Napoleon had have won the war rather than lost the war in a French-speaking England. That’s almost the parallel universe we’re in. The position today is not the position that existed a short period of time ago, and I suspect very strongly that the parties need to re-position themselves to move forward with a new bargaining round.

[11] My formal decision in this matter is that even if satisfied of each of the other requirements relating to the making of a bargaining order, I cannot be satisfied and am not satisfied that it’s reasonable in the circumstances to make any of the orders sought by the union.

COMMISSIONER

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