“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2014] FWC 3724

[2014] FWC 3724

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(B2014/818)

COMMISSIONER BISSETT MELBOURNE, 5 JUNE 2014

Application for bargaining orders - re-instatement of union delegate - dismissed during bargaining - UGL Resources Pty Ltd.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for bargaining orders pursuant to s.229 of the Fair Work Act 2009 (the Act). The bargaining orders are directed to UGL Operations and Maintenance Pty Ltd (UGL).

[2] The Australian Workers’ Union (AWU) sought, and was granted permission to be heard in relation to the application.

[3] The AMWU and AWU are bargaining representatives and are engaged in bargaining with UGL. Bargaining commenced in November 2013 when UGL issued a Notice of Representational Rights. An agreement has not yet been reached and the bargaining continues.

[4] On 26 May 2014 UGL formally advised the unions that on 27 May 2014 it would be announcing a reduction in its workforce of 30 employees.

[5] On Friday 29 May 2014 UGL advised a number of employees that they would be made redundant. Those employees were paid in lieu of notice and left the site that day.

[6] The AMWU allege that UGL has failed to meet the good faith bargaining requirements of the Act, in particular s.228(1)(e). It says that UGL, in making employees redundant while bargaining is continuing, amounts to capricious and unfair conduct that undermines freedom of association or collective bargaining.

[7] The AMWU says that UGL is using redundancies as a means of putting pressure on the bargaining representatives to accept UGL’s proposed terms of agreement. It says that the abrupt nature of the redundancies is designed to make employees fearful and to enervate the bargaining representatives.

[8] Further, it says that UGL is in breach of the existing enterprise agreement and s.531 of the Act.

[9] In its application the AMWU indicates that it would seek orders that UGL (a) not dismiss any persons engaged to perform maintenance work at the Shell oil refinery at Geelong in the State of Victoria and (b) reinstate to their former position, without loss of pay, any person who was, as of 28 May 2014, engaged to perform maintenance work at the Shell Oil refinery at Geelong in the State of Victoria.

[10] During proceedings the AMWU indicated that it no longer pressed proposed order (b) but instead sort that UGL reinstate Mr Gary Spice without loss of pay, to the position he occupied as of 28 May 2014. Mr Spice is the AMWU shop steward at UGL. He has been intimately involved in bargaining with UGL.

[11] The application for bargaining orders was made by the AMWU on 29 May 2014. At the same time AWU made an application for the resolution of an industrial dispute under the dispute settling procedures of the UGL Resources Pty Ltd Geelong Refinery Enterprise Agreement 2011. The AWU application was listed in conjunction with the AMWU application for bargaining orders. The application for bargaining orders was dealt with and was fully supported by the AWU.

[12] The applications were called on for hearing as quickly as possible as they both go to matters associated with the conduct of bargaining for a new enterprise agreement that is currently occurring at UGL.

[13] At the conclusion of the hearing I indicated that I would issue a decision as quickly as was possible.

Legislative provisions

[14] Sections 229-231 of the Act are relevant to application before me:

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

230 When the FWC may make a bargaining order

Bargaining orders

(1) The FWC 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) the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

(2) The FWC 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) The FWC 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 the FWC 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 the FWC 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 the FWC 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 the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.

Evidence

[15] The AMWU called evidence from:

• Mr Garry Spice (AMWU shop steward)



• Mr Leigh Winfield (AWU shop steward)



• Mr Matthew McPhee (AMWU organiser)



• Mr Gavin Penn (AWU organiser)

[16] UGL called evidence from:

• Mr Ray Box (Operations Manager for UGL)



• Mr Terry Elliot (National IR Manager, Operations & Maintenance for UGL)



• Ms Kerrin Thompson (Contract Manager for UGL at Shell Geelong)



• Mr John Armstrong (superintendant for UGL)

[17] During the bargaining for the enterprise agreement the unions were represented by Mr Spice and Mr Winfield along with Mr McPhee and Mr Penn. Mr Spice took the lead in the negotiations, representing the views of the workers on site and identifying issues for resolution. Mr Winfield considered Mr Spice to be the more experienced of the two and looked to Mr Spice to provide assistance to him in the bargaining process.

[18] UGL was represented in bargaining by Mr Elliot. Ms Thompson also attended as did Mr Box. Other representatives from the company may have attended but no evidence was lead on this point.

[19] During bargaining the AMWU and AWU applied for protected action ballot orders. These orders were granted by the Commission on 30 April 2014. On 20 May 2014 the ballots were declared with 96% of AMWU members and 82% of AWU members voting in favour of the protected action.

[20] On 9 May 2013 UGL released a proposed agreement to the workforce to enable a vote on it to take place in accordance with the Act. This was not done with the endorsement of the AMWU and AWU had not signed off on the agreement at this stage. The vote on the proposed agreement was conducted on 21 May 2014. It was rejected by employees of UGL.

[21] On Friday 23 May 2014 Mr Elliot rang Mr Penn of the AWU. The content of this call is in contention. Mr Elliot says he rang Mr Penn to give him prior warning that the following week UGL would be announcing 30 redundancies. He says he had some brief discussions with Mr Penn on mitigation of the loss and did comment to Mr Penn that having any of the workers take leave to see if the work situation improved would make it difficult to conduct a vote on an agreement. Mr Elliot says he also tried to contact Mr McPhee but with no success.

[22] Mr Penn says that Mr Elliot rang him that Friday and said that they needed to get the agreement over the line. He says that Mr Elliot said there were two options: Option A was to sack some employees and then put the agreement back out to vote and see if it got up; Option B was to see if some people would take leave, the vote could then be conducted without them to see if could be voted up. Mr Penn says he rejected any notion members taking leave when they was no guarantee that they would have a job at the end of that period. Mr Penn says that Mr Elliot said he would deny that this conversation ever took place if anyone asked. Mr Penn says he also tried to contact Mr McPhee but with no success.

[23] Both Mr Penn and Mr Elliot say that their version of the conversation is correct and the other version is incorrect.

[24] On 26 May 2014 the unions’ shop stewards and Organisers met with Mr Elliot, Mr Box and others from UGL. Sometime in the meeting was spent on bargaining issues. Towards the end of the meeting management had a brief break and then returned and advised the unions that there was to be a reduction of 30 in the UGL workforce at Shell.

[25] On 27 May 2014 Ms Thompson advised employees at prestart meetings of the proposed reductions. On 28 May 2014 Mr Elliot sent an email to the unions confirming the reductions and reasons for the reductions. This advice also included the breakdown of job loss by classifications.

[26] On 28 May 2014 Mr Penn rang Mr Elliot at about 11.30am to complain of the lack of detailed advice on the redundancies. He says he asked Mr Elliot how many redundancies there would there have been if the parties had reached agreement on the bargaining on 26 May 2014. He says Mr Elliot replied that there would have been 15. Mr Penn says he then put to Mr Elliot that there were 15 additional redundancies due to the impasse in bargaining, to which Mr Elliot replied that he could not say that.

[27] Mr Elliot says that Mr Penn rang him and asked if there would have been redundancies if agreement had been reached voted up on 21 May 2014. Mr Elliot says he told Mr Penn that they always knew they were going to lose 12-15 jobs if they could not secure more work. Mr Penn replied that this was not 30 to which Mr Elliot said he did not know. Mr Elliot says that he was saying that he did not know the impact of the agreement on Shell’s plans for the site.

[28] Both Mr Penn and Mr Elliot stand by their evidence as to conversation and deny the version of the other.

[29] UGL have a non-exclusive contract with Shell. The effect of this is that UGL are not guaranteed work by Shell who retain the right to go to other contractors. Shell control the number of UGL employees on site and the work allocated to them.

[30] Ms Thompson’s evidence as to the maintenance budget overrun by Shell was not disputed.

[31] Ms Thompson says that two fitters were retrenched in March 2014. Around this time she also reviewed the matrix used to determine who should be made redundant to ensure it aligned with the goals of UGL, that it fitted the environment of the work at Shell and to minimise subjectivity in the process. She says she undertook this review in consultation with supervisors on site. She says she also consulted the union shop stewards and invited their feedback.

[32] Ms Thompson says that there were early indications of a reduction in work for UGL at Shell when she started in February 2014. There have also been specific instructions from Shell with respect to some of the work performed by UGL. These are set out in her witness statement and are not repeated here. 1

[33] Ms Thompson raised the likelihood of further reductions in the workforce at a bargaining meeting she attended on 7 May 2014.

[34] Ms Thompson says that on 23 May 2014 she made a decision of the need to reduce staff numbers at Shell. She says that her decision to reduce numbers was not driven by the bargaining process but was driven solely by the requirements for staff numbers communicated to her by Shell.

[35] The decision on who was to be made redundant was taken following the completion of assessments of each employee using the assessment matrix. The data was ‘normalised’ to remove any supervisor bias. Employees with the lowest ‘score’ within each job role were then the ones marked for redundancy. These selections were ‘sanity checked’ and, if necessary reassessed to ensure that UGL kept staff with the required specialised skills. If assessments appeared intuitively wrong re-assessments were completed by different supervisors.

[36] Because Mr Spice worked on secondment to Shell his assessment was undertaken by Shell supervisors with guidance as to procedure (as opposed to score) from Mr Armstrong.

[37] The decision on who was to be made redundant was ultimately Ms Thompson’s, although the decision was made in consultation with the superintendants on site. Ms Thompson says neither Mr Elliot nor Mr Box had any input as to who would be made redundant.

[38] Mr Elliot and Mr Box each says he had nothing to do with the decision as to who was to be made redundant.

[39] During the prestart meetings on 27 May 2014 Ms Thompson says she briefed employees on the cuts. She says that employees wanted to know about the timing of the announcement of who would be made redundant as they did not want the matter hanging over their heads. Volunteers were sought for redundancies with only one coming forward.

[40] Mr Armstrong gave evidence of the process used to assess Mr Spice. He says that Mr Elliot had no involvement in the selection process.

[41] Ultimately 29 employees were made redundant - 4 fitters, 2 boilermakers, 9 riggers and 14 scaffolders. Mr Spice was one of the fitters made redundant. Prior to these redundancies there were about 90 employees on site.

Submissions

AMWU

[42] The AMWU submits that the termination of Mr Spice’s employment is interlinked to the bargaining taking place at UGL. It says that Mr Spice was professionally involved in the bargaining, he represented his members at UGL, he provided leadership in the bargaining process and he strongly maintained the union claims during bargaining.

[43] The AMWU says that Mr Penn’s evidence was unequivocal of the conversations he had with Mr Elliot on 23 and 28 May 2014 and I should prefer his evidence as the more truthful account. This is, in the AMWU’s submission, ‘damming evidence’ of the conduct of UGL.

[44] The AMWU say I should not rely on Ms Thompson’s documentary evidence of the need to reduce numbers but should infer that pressure was put on her by Shell and by Mr Elliot to achieve the reductions. The AMWU also submit that I should be cautious in accepting Ms Thompson’s evidence as she could not remember a conversation she had on 23 May 2014 even though it was in her written witness statement, she failed to address the assessment process in her written statement and there is a disjuncture between her evidence and that of Mr Armstrong.

[45] The AMWU say that I should infer that the ranking given to Mr Spice did not actually place him in the bottom four out of the 17 fitters on site as I do not have any information on any other assessments. The AMWU say that Mr Spice’s assessment score is quite good and does not seem to provide an intuitive base for a finding that he ranked in the bottom four of the fitters such that he should be made redundant. Whilst agreeing that it had not been put that Mr Spice’s capacity or conduct was an issue, the AMWU say that UGL’s case is based on them finding 14 fitters who were better than Mr Spice.

[46] Ultimately the AMWU says that the selection of Mr Spice for redundancy was unfair. It says the conduct of UGL is nefarious at the worst, on the basis of the admissions of Mr Elliot, or anodyne at best.

[47] The AMWU submits that the decision of UGL to make Mr Spice redundant amounts to unfair conduct on the part of UGL as it removes a key union participant from the bargaining process.

UGL

[48] UGL submits that the union case rises no higher than its suspicion of the reasons why UGL made employees, including Mr Spice, redundant. UGL says that the decision to make Mr Spice redundant is not an indication that he was not good at his job. It says he is good at his job, it is just that there are others better than him.

[49] UGL says that the AMWU has failed to identify the unfair conduct that undermines collective bargaining. To this extent it says that the AMWU fall at the first hurdle in having the Commission exercise its discretion to issue good faith bargaining orders.

[50] UGL submits that even if Mr Elliot did say what was alleged by Mr Penn (and this is not conceded) this does not assist the AMWU as the evidence is that Mr Elliot played no part in determining who should be made redundant.

[51] UGL submits that the absence of evidence of the assessment scores of other employees cannot lead to an inference that those scores would have shown that Mr Spice was not in the bottom four fitters.

[52] UGL says that the decision to make people redundant was not driven by bargaining, that it was driven by direction from Shell to reduce numbers, that the process used to determine who would be made redundant was fair and that staff wanted the process to be over quickly.

[53] UGL submits that it is instructive that the unions have not questioned the validity of the redundancies.

[54] It says that there is no evidence to support a finding that UGL is not meeting the good faith bargaining requirements but, even if that were found, there is no position to reinstate Mr Spice to so it would not be reasonable, in the circumstances to make an order of the type sought by the AMWU. UGL say that if Mr Spice was reinstated if would need to make another fitter redundant as there is no work for one more fitter.

Consideration

[55] This application was called on for hearing as matter of urgency at the request of the AMWU. Because of this much of the evidence was given viva voce. Two of the UGL witnesses provided written witness statements. I do not criticise what is included or what was not included in those statements. They were prepared on the basis of the application lodged by the AMWU. As mentioned above the relief sought by the AMWU changed during the hearing. The UGL witnesses were not fully aware of the case being put against them such that their statements could be more focussed.

[56] I have sought to deal with this matter as expeditiously as possible. In reaching my decision I have had regard to all of the evidence put before me.

[57] The prerequisite for making an application for bargaining orders is that the bargaining representative must have concerns that a bargaining representative is not meeting or has not met the good faith bargaining requirements (s.229(4)(a)(i)) and has given written notice of that concern (s.229(4)(b)) and provided an adequate opportunity to respond to the concern (s.229(4)(c)).

[58] I am satisfied that the AMWU has such a concern about the conduct of UG, that it has given written notice of the concern and provided UGL with an opportunity to respond. The AMWU have therefore met the jurisdictional requirements necessary to make the application.

[59] The power of the Commission to make a bargaining order is only enlivened if the Commission is satisfied (in this case) that a bargaining representative has not met or is not meeting the good faith bargaining requirements (s.230(3)(a)(i)).

[60] I must therefore, in the first instance, decide if UGL have failed to meet the good faith bargaining requirements.

[61] The AMWU in this matter say in particular that UGL are not meeting the good faith bargaining requirements because they have engaged in ‘capricious or unfair conduct that undermines freedom of association or collective bargaining’ (s.228(e)) in that they have made Mr Spice redundant in circumstances where he is the AMWU shop steward and has played a critical role in bargaining for the AMWU and AWU.

[62] I am satisfied that Mr Spice played a key role for the unions in the bargaining process.

[63] I find that the decision to reduce staffing numbers by 30 (about one third of the workforce) by UGL was driven by decisions of Shell as to the resources required by it of UGL on site. I am also satisfied that the process of assessment by which it was determined who would be made redundant is, on the evidence before me, objectively fair. Whilst Ms Thompson was involved in both bargaining and the ultimate decision as to who would be made redundant I am satisfied that the decision as to who would be made redundant was not driven by the bargaining process or issues in bargaining. I am satisfied that the decision on who was to be made redundant was made by the three UGL superintendants at Shell. I accept the evidence of Ms Thompson that her personal preference was to keep Mr Spice on site.

[64] I find that neither Mr Elliot nor Mr Box had any input to or influence over who would be made redundant. The evidence was unequivocal. Nothing was put to ground any suspicion otherwise.

[65] As to the conversations between Mr Penn and Mr Elliot I do not find that anything much turns on which evidence should be accepted. Mr Elliot had no influence or input as to who was to be made redundant. His views and beliefs on the numbers of redundancies or how many there would have been or should be is neither here nor there. It is not an area of the business he was involved in beyond ensuring the consultation process occurred properly.

[66] I do not find that the conversation between Mr Penn and Mr Elliot on 29 May 2014, on either version, indicates that there would not have been 30 redundancies if agreement had been reached. Mr Elliot did not control numbers at the site, was not aware of directions being issued by Shell and had no input as to the number of redundancies or who was to specifically be made redundant. The decision on redundancies, including numbers, belonged to Ms Thompson.

Was the action of UGL capricious?

[67] Capricious means subject to or indicative of caprice. Caprice is defined in the Macquarie Dictionary as:

• A sudden change of mind without apparent or adequate motive; whim;



• A tendency to change one’s mind without apparent or adequate motive; whimsicality; capriciousness.

[68] There is no evidence to suggest that the decision of UGL was capricious. UGL has a non-exclusive contract with Shell. Shell determines the numbers it requires of UGL on site. Ms Thompson meets formally with Shell twice a week. For some time Shell has been indicating a reduction in its requirements of UGL and of a major overspend on maintenance. There was lack of work coming to UGL such that it could not maintain its workforce. The UGL workforce at Shell had been declining at least since early 2014 with no indication of an increase in demand.

[69] UGL undertook the assessment in early May (Mr Spice’s assessment is dated 9 May 2014) and Ms Thompson says the process of assessing, checking, normalising the assessments took about two weeks. This does not suggest that the decision to make Mr Spice or any others redundant was capricious. Rather, the time frame indicates a considered approach. The decision to make a third of the workforce redundant does not appear to have been made on a whim.

[70] I do not find the decision of UGL to make 30 employees redundant capricious.

Was the action of UGL unfair?

[71] This application is not whether the decision to dismiss Mr Spice was unfair but rather whether the conduct of UGL in making that decision breached the good faith bargaining provisions of the Act.

[72] I am satisfied that, in undertaking the redundancy process, UGL has sought to keep employees and the unions informed of the effects on the business of changes in the demands of Shell and the potential effects this may have. I also accept that, having been advised of the redundancies there was pressure from the workforce and from the unions, particularly with respect to the scaffolders, to be told as soon as possible who would be made redundant as quickly as possible and not to be left with prolonged uncertainty. This does not mean the process of consultation could not be improved in some way although no submissions were made by the unions to this effect.

[73] The Macquarie dictionary definition of unfair is:

• Not fair; biased or partial; not just or equitable; unjust;



• Marked by deceptive dishonest practices.

[74] On the evidence available to me I am not satisfied that the decision by UGL to make Mr Spice redundant was biased or partial or inequitable or unjust. Nor is it marked by deceptive practices.

[75] It may well be that the assessment process used to determine who will be made redundant could be further refined. But it is not the assessment process per se that is under scrutiny in this matter but the decision to make Mr Spice redundant. He is the one the AMWU seeks orders for.

[76] Whilst the decision to make Mr Spice redundant has consequences for him this does not make the conduct of UGL in deciding to reduce its workforce numbers at the direction of Shell unfair. It seems to me that no one disputes that staff reductions were necessary.

[77] A decision to make workers redundant will always have some unfairness about it. Workers are losing their livelihood. The consequences can be enormous. It can be, and often is, very distressing. At the same time an employer must have the right to continue to operate its business in an efficient manner.

[78] The question is not just is the conduct unfair but is it unfair, and is the purpose of the conduct to undermine freedom of association or collective bargaining.

[79] A breach of the good faith bargaining requirements will occur if the motivation of the employer, in making the employees redundant, is for the purpose of undermining freedom of association or collective bargaining. That collective bargaining is occurring at the time of the redundancies, whilst unfortunate, does not automatically create a causal link.

[80] There was no evidence to suggest that UGL, in making employees redundant, was motivated to undermine the bargaining process that was occurring and in continuing.

[81] Whilst the loss of a key shop steward during bargaining may impede the ability to find agreement there is nothing before me that would allow me to conclude that the purpose in making Mr Spice redundant was to undermine freedom of association or collective bargaining. The workforce appears to be highly unionised. Nothing suggests those selected for redundancy were selected because of some union affiliation. Bargaining continues. Whilst the loss of a key member of the bargaining team may impact the efficiency of that process there is no evidence that the collective bargaining is threatened or undermined.

[82] Given that the assessment of Mr Spice was done on 9 May 2014, well before the protected action ballot was conducted and before the employees rejected the proposed agreement it is difficult to see how, even if the decision was unfair, it undermines collective bargaining or freedom of association.

[83] Had the decision on redundancies been made the day before the protected action ballot or if it was only Mr Spice made redundant this would be a very different case. But that is not the case. One third of the workforce was made redundant at the end of May and Mr Spice was one of those.

[84] I have been referred by both parties to a range of authorities of this Commission and a decision of the Federal Court. To the extent they are relevant I have considered those authorities. I should specifically mention however the Full Bench decision of the Commission in Endeavour Coal Pty Ltd v The Association of Professional Engineers, Scientists and Managers, Australia (Colleries’ Staff Division). This decision goes to the form and content of the bargaining orders made by the Commission. In the matter before me the jurisdictional prerequisites for the making of an order have not been met. That decision therefore is not relevant to this matter.

[85] For these reasons I also conclude that UGL did not or has not used the redundancies as a means of putting pressure on the bargaining representatives or the workers to accept the terms of the agreement proposed by UGL. It is true that there are fewer employees to vote on the agreement now than there were prior to the redundancies but there is just no evidence to link the redundancies to the bargaining process. I do not accept that the conversation between Mr Penn and Mr Elliot on 26 May 2014 supports such a conclusion.

Conclusion

[86] I am cognisant of the fact that, under s.726 of the Act Mr Spice will be barred from making any other application in relation to his dismissal. That cannot be a matter to sway my decision. This application was made by the AMWU. It is not made without knowledge of the consequences and limitation posed by s.726.

[87] On the basis of my findings set out above I am not satisfied that UGL, as a bargaining representative, has not met or is not meeting the good faith bargaining requirements. I therefore find that the requirements of s.230 of the Act have not been met. I therefore do not have the power to make the bargaining order as sought by the AMWU.

[88] The application of the AMWU is dismissed. An order to this effect shall be issued in conjunction with this decision

COMMISSIONER

Appearances:

B. Terzic of the Australian Manufacturing Workers’ Union for the Applicant.

C. Winter of the Australian Workers’ Union.

C. Gianatti with C. Brown for UGL Operations and Maintenance Pty Ltd.

Hearing details:

2014.

Melbourne:

June 3.

 1   Exhibit UGL 2 paragraphs 12-30 and attachments KT-6, KT-7 and KT-8

Printed by authority of the Commonwealth Government Printer

<Price code C, PR551461>