“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Galintel Rolling Mills Pty Ltd T/A the Graham Group - [2011] FWA 6326

[2011] FWA 6326
[Note: a correction has been issued to this document - see 2011FWA6326_PR514759 signed 19 September 2011]

FAIR WORK AUSTRALIA

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)
v
Galintel Rolling Mills Pty Ltd T/A The Graham Group; Weldlok Industries Pty Ltd T/A The Graham Group; Mastermesh Pty Ltd T/A The Graham Group; Galvanising Services Pty Ltd T/A The Graham Group
(B2011/3127)

COMMISSIONER RYAN

MELBOURNE, 16 SEPTEMBER 2011

Application for bargaining orders - single-interest employer - whether employer as bargaining representative has met good faith bargaining obligations - conduct of employer not consistent with good faith bargaining requirements - orders made.

[1] The AMWU has made application for a number of bargaining orders pursuant to s.229 of the Fair Work Act 2009 (the Act) to be made against four employers and against one employee bargaining representative. The four employers are Galintel Rolling Mills Pty Ltd, Weldlok Industries Pty Ltd, Mastermesh Pty Ltd and Galvanising Services Pty Ltd all of whom operate from a single site at Yagoona, a western suburb of Sydney. The four employers will be referred to as The Graham Group. The employee bargaining Representative against whom a bargaining order is sought is an employee of Weldlok Pty Ltd.

[2] The AMWU was represented by Mr Adam Walkaden and The Graham Group was represented by Mr David Bray of the Australian Industry Group (AIG).

Background

[3] The Graham Group employs approximately 120 shop floor employees at Yagoona with the breakdown being: Galintel Rolling Mills Pty Ltd - 6 employees, Weldlok Industries Pty Ltd - 55 employees, Mastermesh Pty Ltd - 4 employees and Galvanising Services Pty Ltd - 54 employees.

[4] The relationship between the AMWU and the Graham Group is less than harmonious.

[5] The AMWU has for a number of years sought to recruit membership from amongst the employees of the Graham Group and the AMWU has used the Right of Entry (ROE) provisions of the Act and the Workplace Relations Act1996 to enter the premises of the Graham Group to hold discussions with employees. In September 2010 the AMWU increased its efforts to have a presence at the Graham Group with 4 ROE visits between September and December 2010 and seven ROE visits between February and early June 2011.

[6] On 5 April 2011 the AMWU filed a s.240 application seeking assistance of Fair Work Australia (FWA) in relation to a bargaining dispute with the Graham Group. On 15 and 18 April 2011 four identically worded petitions signed by a total of 54 employees were sent to the AMWU calling on the AMWU to withdraw its application to FWA. The AMWU application was dealt with on 21 April 2011 by Cargill C by way of a conciliation conference. The Graham Group raised a jurisdictional objection in that the Graham Group asserted that they had not agreed to bargain with anyone in relation to an enterprise agreement and that they had no desire to bargain with the AMWU.

[7] On 25 May 2011 the AMWU filed an application with FWA seeking a Majority Support Determination (MSD). In support of its application the AMWU provided to FWA a copy of the petition the AMWU used to garner majority support. The petition contained the following wording:

‘AMWU approach to Fair Work Australia regarding the Graham Group

We the undersigned employees of Maintenance at the Graham Group hereby request that the AMWU withdraw its application to Fair Work Australia regarding employees of Graham Group.

We are aware that it has been listed for 21 April 2011, however we do not wish to proceed.

We have raised our issues with the company and the company have responded with answers to our issues.

Those answers have been accepted by the employees and we wish to work with the company over the next 12 months as a result.

Please reply by return fax.’

[8] That application was heard by SDP Drake on 31 May 2011 and a MSD, which applied to the Graham Group, was issued by SDP Drake on 1 June 2011.

[9] On 2 June 2011 the AMWU wrote to the Graham Group proposing that bargaining commence on 7 June 2011 and that the Graham Group respond to the AMWU letter by 3 June 2011. The Graham Group responded to the AMWU on 8 June 2011 and proposed a first meeting date of 29 June 2011. The reason given for the delay was “the time required to complete the process of translating notices to the required languages, issuing the notices and providing sufficient time for any notices to be returned”. The reference to ‘notices’ was a reference to the Notice of Employee Representational Rights (the Notice) that the employer was required to give each employee. The references to the return of ‘notices’ was a reference to a return slip which had been added to the bottom of the Notice. There were four versions of the Notice issued to employees, one version for each of the 4 employers making up the Graham Group. Each version reflected the intention of the employer to initiate bargaining for an employer specific enterprise agreement and the return slip attached to each version of the Notice sought only appointment of bargaining representatives in relation to bargaining for an enterprise agreement for the specific employer. The return slip contained on the Notice issued to Galintel Rolling Mill Pty Ltd employees was as follows:

Please complete the following slip and return the slip to Mark Vincer, Manufacturing Manager

Nomination of Bargaining Representative

I __________________nominate____________________ to be my

(Name of Employee) (Name of Bargaining representative)

Bargaining representative to represent me in bargaining for the Graham Group Galintel

Rolling Mill Yagoona Enterprise Agreement.

________________________ __________________

Employee signature Date

[10] The Notices were distributed to employees across the Graham Group on about the 9 June 2011 with the return slips being returned throughout the remainder of June and into early July 2011.

[11] On 14 June 2011 the AMWU made application to FWA to deal with a ROE Dispute between the AMWU and the Graham Group.

[12] On 13 and 14 June 2011 the six employees of Galintel Rolling Mill Pty Ltd appointed either of two named bargaining representatives.

[13] By the 21 June 2011 the Graham Group had commenced bargaining with the two bargaining representatives of the employees of Galintel Rolling Mill Pty Ltd.

[14] On the morning of 29 June 2011 the ROE Dispute was subject to a conference convened by Justice Boulton.

[15] On the afternoon of 29 June 2011 the Graham Group met with the AMWU as was proposed by the Graham Group. No other employee bargaining representative was present.

[16] On 30 June 2011 the Graham Group convened a meeting of the six employees of Galintel Rolling Mill Pty Ltd and commenced the access period under s.180(4) of the Act.

[17] On 1 July 2011 at the morning tea break Mr Ahmed Issa a supervisor convened a paid meeting of employees at the Weldlok plant.

[18] On 4 July 2011 the AMWU wrote to FWA seeking that the ROE dispute before Justice Boulton be listed for Inspection and Arbitration with two days being allocated to deal with the matter.

[19] On 6 July the AMWU pressed FWA to reallocate the ROE dispute from Justice Boulton to another member so as to enable it to be dealt with urgently. The file was reallocated to myself on 7 July 2011 with the matter being listed for inspection and hearing on 13 and 15 July 2010.

[20] On 8 July 2011 employees of Galintel Rolling Mill Pty Ltd voted to approve the proposed enterprise agreement for Galintel Rolling Mill Pty Ltd.

[21] On 12 July 2011 the AMWU advised FWA that the ROE dispute had been resolved between the parties and the inspection and hearing dates were cancelled.

[22] On 12 July 2011 the Graham Group filed with FWA an application for approval of the Galintel Rolling Mill EnterpriseAgreement.

[23] On 13 July 2011 the AMWU filed the application in the current matter and requested an urgent hearing of the matter on 15 July 2011, given that that date had been allocated to dealing with the ROE dispute.

[24] Both the Graham Group application for approval of the Galintel Rolling Mill Enterprise Agreement and the AMWU application for bargaining orders were listed for hearing before me in Sydney on 15 July 2011. At that hearing I dismissed the application for approval of the Galintel Rolling Mill Enterprise Agreement. The reasons for dismissing the application were given on transcript and a significant aspect of the reasoning concerned the Notice of Employee Representational Rights including a return slip and the effect this had in relation to compliance with provisions of the Act. In relation to the application for bargaining orders the parties in attendance (the AMWU, the Graham Group and an employee Bargaining Representative) agreed to FWA issuing a consent Interim Order which effectively stopped the bargaining process and any related activities until the application for bargaining orders could be properly determined.

[25] On 18 July 2011 the AMWU filed an amended application for a Bargaining Order. The amended application relied upon both the original written notices of concern and additional written notices of concern issued by the AMWU to the Graham Group and to three individual bargaining representatives on 14 July 2011.

[26] On 4 August 2011 the Graham Group lodged an appeal against the dismissal of the application for approval of the Galintel Rolling Mill Enterprise Agreement.

[27] On 8 August a telephone conference was convened by FWA in relation to the current matter and the matter was listed for arbitration on 25 and 26 August 2011.

[28] What the above summary makes clear is that much has happened in a short period of time. What has been left out of the summary are many of the communications between the AMWU and the Graham Group.

[29] What the summary also shows is that on two occasions the AMWU have pressed FWA to convene urgent hearings of matters to be arbitrated including pressing FWA to reallocate a file to ensure an urgent hearing when on each occasion the urgency which was claimed to justify the urgent hearing appears to have been cast into doubt by the subsequent actions of the AMWU.

The Concerns of the AMWU

[30] In its amended application filed on 18 July 2011 the AMWU identified 4 subject matters of concern, each of which was particularised. The four concerns were:

1. The conduct of Mr Issa, one of the employee bargaining representatives, at a meeting of Weldlok employees on Friday 1 July 2011.

2. The conduct of the Graham Group in not attending and participating in meetings at reasonable times.

3. The conduct of the Graham Group in not responding to proposals made by the AMWU in a timely manner.

4. The conduct of the Graham group in bargaining for and in making application for approval of the Galintel Rolling Mill Agreement.

The Legislation

[31] The relevant provisions of the Act are found in Division 8 of Part 2-4.

[32] There are a number of constraints placed on the making of an application for bargaining orders.

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

(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.

[33] A bargaining order may only be applied for by a bargaining representative for a proposed agreement. In the present matter the AMWU has proposed that an enterprise agreement be made which applies to the four companies of the Graham Group in relation to their operations at Yagoona. The AMWU is a default bargaining representative in relation to the proposed enterprise agreement for its members who are employed at the Graham Group. The Graham Group concede that the AMWU is a default bargaining representative for some employees to be covered by the AMWU proposed enterprise agreement.

[34] Section 229(2) provides that an application for a bargaining order cannot be made in relation to a multi-enterprise agreement unless a low paid authorisation is in operations. No such authorisation is in operation. A question arises as to whether the AMWU proposed enterprise agreement which will apply to the four companies of the Graham Group is a multi-enterprise agreement.

[35] The AMWU submitted that the four companies of the Graham Group are ‘single interest employers’ for the purposes of s.172(5) in that the four companies are employers engaged in a common enterprise (s.172(5)(a)), and/or are related bodies corporate.

[36] Notwithstanding the submissions of the AMWU I am not satisfied that the four companies of the Graham Group are engaged in a common enterprise.

[37] The AMWU took me to the various provisions of the Corporations Act to make their submission that the four companies were related bodies corporate. I accept the correctness of these submissions and I am satisfied that the AMWU is not barred from making the application in the present matter by virtue of the operation of s.229(2).

[38] The Graham Group did not challenge the submission of the AMWU that its application was made within the time limits provided for in s.229(3). I am satisfied that the requirements of s.229(3) have been met.

[39] Section 229(4) provides four specific conditions which must be met before a bargaining representative can apply for a bargaining order.

S.229(4)(a)

The first condition as provided for in s.229(4)(a) has been met. The Graham Group has conceded that this is the case.

S.229(4)(b)

The second condition is that the applicant for bargaining orders has given written to notice to the relevant bargaining representatives of those concerns. The Graham Group have conceded that the AMWU has complied with this requirement. I am satisfied that this requirement has been met.

S.229(4)(c)

The third condition is that the applicant for bargaining orders has given the other relevant bargaining representatives a reasonable time to which to respond to the concerns raised. The Graham Group submitted that this condition has not been met in relation to the second, third and fourth concerns identified by the AMWU. I am satisfied that this requirement has been met.

The First Set of Concerns

[40] The Graham Group concedes that the AMWU did give the Graham Group a reasonable time to which to respond to the concerns of the AMWU concerning the conduct of Mr Issa at the meeting convened at the end of the morning tea break on 1 July 2011. However the AMWU also gave notice of the same concerns to Mr Issa.

[41] The AMWU wrote to the Graham Group (and cc’d to Mr Bray at Australian Industry Group and to FWA) on Friday 1 July 2011 to express concerns to the Graham Group in accordance with the requirement in s.229(4)(b) of the Act. The letter contained the following relevant description of the concerns of the AMWU:

‘We write to convey our concerns that the Graham Group as a bargaining representative for an enterprise agreement to cover the Graham Group and its shop-floor employees have not been meeting, and are not meeting, the good faith bargaining requirements in the Act. Our concerns originate from a meeting of shop-floor employees that was convened by the Graham Group on the morning of Friday 1 July 2011. At this meeting, we understand that a senior manager employed by the Graham Group, Ahmed, made comment to the following effect:

1. That the Graham Group would pay a 3% wage increase to all employees that would agree to revoke the status of the AMWU as their bargaining representative.

2. That the Graham Group would pay a 3% wage increase to all employees that would resign as a member of the AMWU.

3. That any employee who was interested in either of the above two offers should attend a meeting with him and complete the necessary form.

4. That if employees agreed to revoke the status of the AMWU of their bargaining representative and/or resign from the AMWU, the Graham Group would increase the amount of overtime currently offered.

5. That the Graham Group would consider such matters in any future decision concerning any employees to be selected for redundancy.

If our understanding is correct, there is little doubt that the Graham Group has contravened the good faith bargaining requirements in the Act and other provisions of the Act, including the general protections provisions and those dealing with coercion, misrepresentation and undue influence. In particular, such conduct amounts to a contravention of sections 228(l)(e), (t) of the Act. 1

[42] The AIG on behalf of the Graham Group responded to the AMWU by letter dated 4 July 2011 in which the Graham Group disavowed the actions of Mr Ahmed Issa, whom they identified as a supervisor employed by Weldlok Industries Pty Ltd and who was an appointed Bargaining Representative. At no stage during these proceedings has any indication been given as to for whom Mr Issa is acting as a Bargaining Representative. On 6 July 2011 the AMWU wrote to Mr Issa advising him of their concerns in relation to his conduct on Friday 1 July 2011. The notice of concerns from the AMWU was just over 3 pages long and was accompanied by an Attachment which contained a statement that the AMWU wanted Mr Issa to read out to a meeting of all employees of Weldlok Industries P/L which Mr Issa was to convene on Friday 8 July 2011. The notice of concerns to Mr Issa requested that he reply by close of business on 7 July 2011.

[43] I am not satisfied that the AMWU gave Mr Issa a reasonable time, as required by s.229(4)(c), to respond to the concerns raised by the AMWU in writing on 6 July 2011. As an employee of Weldlok Industries P/L Mr Issa would have had a general obligation to attend work and perform his normal duties on both Wednesday 6 July 2011 and Thursday 7 July 2011. Mr Issa would, in normal circumstances, have had little time outside of working hours to consider the concerns raised by the AMWU and their proposal for remedial action and to have prepared a response for the AMWU by close of business on 7 July 2011.

[44] However in the circumstances of this matter and where the same concerns as raised with Mr Issa had been raised with the Graham Group on 1 July 2011 (although not including the proposed remedial action which was put to the Graham Group by separate letter dated 6 July 2011) I am, for the purposes of s.229(5), satisfied that it is appropriate to consider the application insofar as it relates to Mr Issa’s conduct on 1 July 2011.

The Second Set of Concerns

[45] The second set of concerns of the AMWU were in relation to the assertion that the Graham Group were not attending and participating in meetings at reasonable times. The timing of meetings was first raised by the AMWU on 2 June 2011 in which it sought a meeting on 7 June 2011 and a response to its letter by 3 June 2011. The Graham Group responded on 8 June 2011 and proposed a meeting on 29 June 2011. The AMWU wrote to the Graham Group on 9 June 2011. This letter to the Graham Group meets the requirements of s.229(4)(b) and (c). The letter clearly identified the concern of the AMWU that the Graham Group were delaying meeting with the AMWU in circumstances where the AMWU clearly contended that its proposed meeting dates were reasonable. The AMWU gave the Graham Group a reasonable time to respond as the letter proposed a meeting date of 16 June 2011and requested that the Graham Group confirm their attendance at the proposed meeting by close of business on 10 June 2011. Given that the concern related only to meeting dates the timeframe for a response was reasonable.

The Third and Fourth Sets of Concerns

[46] The third set of concerns of the AMWU relate to the conduct of the Graham Group in not responding to the AMWU’s proposals for bargaining guidelines and protocols as proposed by the AMWU at the bargaining meeting on 29 June 2011. At that meeting the AMWU sought a response by 8 July 2011.

[47] The fourth set of concerns related to the conduct of the Graham Group and two employee bargaining representatives in negotiating and making the Galintel Rolling Mill Agreement.

[48] On 14 July 2011I the AMWU wrote to each of the Graham Group, Mr Issa, Mr Fogarty and Mr Bailey. In each letter the AMWU advised the bargaining representative of the nature of the concerns and specifically stated that the letter was a formal notification of the AMWU’s concerns “that bargaining is not proceeding efficiently or fairly” and that this correspondence constitutes notice for the purposes of s.238(3)(a) of the FW Act”. The letter also “requested a response to the concerns raised “by cob Thursday 14 July 2011”.

[49] The AMWU submitted that it gave the written notices of concern to the respective bargaining representatives about mid-morning on 14 July 2011. However given that three of the bargaining representatives were direct employees of the Graham Group it may reasonably be assumed that they were engaged in their normal employment on that day. In such circumstances for the AMWU to “request” a response to the written notice of concerns by close of business on the same day does not appear, with any stretch of the imagination, to meet the requirement in s.229(4)(c) that the AMWU “has given the relevant bargaining representatives a reasonable time within which to respond to those concerns”.

[50] The position in relation to the written notice of concern given to the Graham Group is even clearer. The notice was sent to the Proper Officer of each of the four companies of the Graham Group. The written notice was faxed to the Graham Group and emailed to a Darren Robinson at the Nepean Group (the parent entity for the Graham Group) and cc’d by email to Mr Bray at the AIG. Mr Bray responded the same day. In his response Mr Bray identified that the email to him was sent at 2.25pm on 14 July 2011. Mr Bray’s response included the following:

‘I have not been able this afternoon to obtain instructions (sic) the named companies, let alone prepare a proper response. In my view the time frame within which you require an answer is not sufficient, nor reasonable within the meaning of sections 229(4)(c) and 238(3)(b) of the Act.’

[51] I take the reference to close of business in the written notice of concern to be the close of business at the AMWU office. Nothing was put to me as to what was the actual close of business at the AMWU, but, even if I err on the side of generosity and presume that the AMWU office would not close for business before 7.00pm, I consider that in the circumstances of this matter a period of less than 5 hours in which the Graham Group had to respond does not constitute a reasonable period for the purposes of s.229(4)(c) of the Act.

[52] Section 229(5) permits FWA to consider an application under s.229 even if it does not comply with paragraph 229(4)(b) or (c), but, only if FWA is satisfied that it is appropriate in all the circumstances to do so. In the present matter the AMWU filed its application for bargaining orders on 13 July 2011 and as a result of the AMWU asking for an urgent hearing of the matter on 15 July 2011 the application was listed for hearing on that date. In only giving the Graham Group, Mr Issa, Mr Bailey and Mr Fogarty a few hours to respond the AMWU’s concerns the AMWU was positioning itself for the hearing on the 15 July 2011, so much is clear from the written submission of the AMWU and from the text of the notices of concern. Each of the written notices of concern issued by the AMWU on 14 July 2011 contained the following statement immediately after having advised the recipient that a response was requested by cob Thursday 14 July 2011:

‘Should we consider the response, if any, from relevant bargaining representatives does not address our concerns, we put you on notice that we will seek additional orders from Commissioner Ryan tomorrow and a scope order in accordance with s.238 of the FW Act.’

[53] It is apparent from the contents of the above paragraph that the time constraints placed upon the bargaining representatives to reply to the concerns of the AMWU was driven not by the need to give the bargaining representatives a reasonable time to respond to the AMWU’s concerns but was driven by the intention of the AMWU to seek additional orders at the hearing on the 15 July 2011.

[54] The AMWU submitted that it only became aware of the application for approval of the Galintel Rolling Mill Agreement on the morning of 14 May 2011 and that it was only at that point that the fourth set of concerns became concerns of the AMWU. In justification for setting a tight deadline for the bargaining representatives to respond to the AMWU’s concerns the AMWU submitted that the most expedient way to get the concerns dealt with promptly, in circumstances where the application for approval of the Galintel Rolling Mill Agreement was listed for hearing on 15 July 2011 was to seek a response by close of business on 14 July 2011.

[55] Having considered all of the circumstances I consider it appropriate, pursuant to s.229(5), to deal with the application in relation to the fourth set of concerns where the application has not complied with s.229(4)(c).

S.229(4)(d)

The condition imposed by s.229(4)(d) has been complied with as the AMWU considers that the relevant bargaining representatives have not responded appropriately to the concerns raised by the AMWU in its written notices of 9 June 2011, 1 July 2011, 6 July 2011and 14 July 2011 to the relevant bargaining representatives.

[56] The plain language of s.229(4)(d) makes clear that the test is a subjective one. If the applicant for a bargaining order does not consider that the other relevant bargaining representatives have responded appropriately to the concerns raised then that is all that is required to meet the test in s.229(4)(d).

[57] There is nothing in the language of s.229(4)(d) which would require or even permit the Tribunal to have regard to the reasonableness of the position adopted by the applicant for a bargaining order.

[58] Mr Walkaden for the AMWU argued strongly that s.229(4)(d) was a subjective test. Mr Bray for the Graham Group by way of reply made the following submissions:

‘PN1489 ... In relation to 229(4)(d), the way that’s written, it’s pretty clear that it’s the bargaining representative’s consideration about the response which seems to be the determining factor, and you asked Mr Walkaden some questions about - do they have to be reasonable held considerations.

PN1491 : I don’t think that I can argue against what Mr Walkaden put to you but what I would say is that if a bargaining representative held a consideration which was, you know, untenable or ridiculous or perhaps even unreasonable, that would then bring 230(1)(c) into play, which is that you have to be satisfied that it’s reasonable to make the orders. So if you found that the bargaining representative that’s applying does consider that the opposing bargaining representatives haven’t responded appropriately but that that view that they took was unreasonable, then there would be grounds or circumstances which exist that would work against you making an order under section 231 subsection (1) paragraph (c).’

[59] As s.229(4)(d) is one of the triggers for making a valid application it would appear that Parliament intended that the trigger was to be no more than the subjective view of the applicant. However, it is s.230 and not s.229 which controls the Tribunal in making a bargaining order. I accept the correctness of Mr Bray’s submission that the general discretion within s.230(1)(c) provides a simple and clear mechanism for the Tribunal to consider for itself the appropriateness of a response given to the applicant in relation to the applicants concerns. Such a consideration by the Tribunal will merely be part of the consideration of “all the circumstances” which need be considered under s.230(1)(c).

230 When FWA may make a bargaining order

Bargaining orders

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

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

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

Agreement to bargain or certain instruments in operation

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

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

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

(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).

[60] Each of subsections 230(1), (2) and (3) refer to conditions precedent to the making of a bargaining order.

[61] I turn firstly to subsection 230(2). On 1 June 2011 Senior Deputy President Drake issued a MSD which identified the proposed agreement as being a single enterprise agreement covering the Graham Group. I am satisfied that a MSD in relation to the enterprise agreement proposed by the AMWU is in operation.

[62] Next I consider subsection 230(3).

[63] Insofar as s230(3)(b) requires that I must be satisfied that the applicant has complied with the requirements of s229(4), unless s229(5) permits non-compliance, I have already discussed these issues in paragraphs 38 to 58 above and I am satisfied that in relation to the concerns expressed by the AMWU on 9 June 2011, 1 July 2011, 6 July 2011, 14 July 2011 that these requirements have been met.

[64] Section 230(3)(a)(ii) is not relevant to the present matter.

[65] Ss 230(3)(a)(i) requires that I be satisfied that at one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements. I will address the operation of s230(3)(a)(i) in relation to each of the four sets of concerns identified in the AMWU’s amended application.

The First Set of Concerns

[66] The case of the AMWU is, in relation to the concerns expressed by the AMWU in its notices of concern dated 1 July 2011 and 6 July 2011, that the Graham Group and Mr Issa were not meeting the good faith bargaining requirements because of the convening of and conduct of a meeting of Weldlok Industries P/L employees after the morning tea break on 1 July 2011 in which Mr Issa addressed the employees. The AMWU qualified its notice of concern issued on 1 July 2011 by the following:

‘If our understanding is correct, there is little doubt that the Graham Group has contravened the good faith bargaining requirements in the Act...’

[67] Similar language was used in the written notice of concern issued to Mr Issa on 6 July 2011.

The meeting on 1 July 2011

[68] The only evidence as to what occurred on 1 July 2011 in relation to the convening of and conduct of a meeting of Weldlok Industries P/L employees was given by Mr Voniani Naibitakele an employee who attended the meeting. Mr Naibitakele was cross examined by both Mr Bray for the Graham Group and by Mr Issa on his own behalf.

[69] I note that Mr Naibitakele gave his evidence in chief and was cross examined by Mr Bray for the Graham Group at the hearing on Thursday 25 August 2011 commencing at 4.28pm on that day. Mr Issa was absent from the formal proceedings on 25 August and was unable to attend the proceedings on Friday 26 August due to religious commitments. At the conclusion of the hearing on Friday 26 August I indicated that Mr Issa would be given an opportunity to advise the Tribunal by Thursday 1 September 2011 if he wanted the opportunity to cross examine Mr Naibitakele and/or to give evidence himself. Mr Issa was given a copy of the transcript of Mr Naibitakele’s evidence on 29 August 2011. On 1 September 2011 Mr Issa contacted my chambers by telephone and advised that he wanted an opportunity to cross examine Mr Naibitakele. A further hearing was then scheduled for 6 September to enable Mr Issa to cross examine Mr Naibitakele. Mr Issa did not seek to give evidence in this matter.

[70] I accept Mr Naibitakele’s account of the manner in which the meeting was convened and what was said at the meeting.

[71] What is clear from the evidence of Mr Naibitakele is that much of the understanding of the AMWU as to what occurred at the meeting on 1 July 2011 was wrong.

[72] The evidence before me in relation to the meeting on 1 July 2011 may be summarised as follows:

Mr Issa as a supervisor convened a meeting of Weldlok Industries P/L employees at the conclusion of the morning tea break on 1 July 2011.

Mr Issa had convened meetings of employees at the end of morning tea breaks in the past.

When Mr Issa convened such meetings employees accepted that Mr Issa was acting on behalf of management of the Graham Group.

When Mr Issa convened such meetings employees attended such meetings on the basis that they were complying with directions from a representative of management.

At the meeting on 1 July 2011 Mr Issa did not make any threats to employees in relation to their freedom of association rights or their bargaining rights.

At the meeting on 1 July 2011 Mr Issa did say words to the effect of:

“Things are getting tight at this point in time, business is getting slow. I am worried about you people and your jobs. Some of you will lose your jobs. I am only doing this because I am worried about you. I am ok myself, my job is safe. The company has agreed to give you a 3% pay increase. If you want it next week, you can get it. All you have to do is come into my office and sign a piece of paper. Don’t worry about the union. We will leave them out of it. The company will give you a better deal without them involved.” 2

[73] The Graham Group have through their submissions disavowed the actions of Mr Issa and asserted that Mr Issa was acting, both, without authority from the Graham Group in convening the meeting, and, in his own interests.

[74] In the context of the broader relationship between the Graham Group and the AMWU it beggars belief that Mr Issa was only acting in his own interests and that he was acting without the approval of the Graham Group.

[75] I note that when the AMWU filed an application under s.240 of the Act seeking FWA’s assistance in relation to a bargaining dispute that a response action by the Graham Group was to invite employees to sign petitions to the AMWU asking the AMWU to withdraw its application to FWA. (Attachment KB12 to Ex A2). The evidence of Mr Naibitakele that Mr Issa said he had a piece of paper for employees to sign if employees wanted a 3% pay rise within a week strongly suggests that a carefully orchestrated process had been developed to try and get Weldlok Industries P/L employees out of the bargaining process being sought by the AMWU. The contents of the piece of paper that Mr Issa had ready for employees to sign remains unknown.

[76] The conclusion I draw from the conduct of Mr Issa on 1 July 2011 is that Mr Issa and the Graham Group did engage in unfair conduct that would undermine freedom of association or collective bargaining.

[77] It was open to the Graham Group to propose an enterprise agreement for Weldlok Industries P/L employees and to put a proposed agreement to employees with a request that the employees approve the agreement (subject to complying with the requirements of the Act for the making of an enterprise agreement). To have done so would be fair conduct. However on the evidence before me in this matter it is clear that Mr Issa and the Graham Group were prepared to deal with employees individually, but not collectively and to separate individual employees from the collective group. The very fact that the piece of paper Mr Issa wanted employees to sign was not presented at the meeting on 1 July 2011 but was only available in his office supports a finding of unfair conduct.

The Second Set of Concerns

[78] The Graham Group was requested in writing on 2 June 2011 to meet with the AMWU on 7 June 2011. The written request sought a reply from the Graham Group by close of business on 3 June 2011.

[79] The Graham Group did not respond to the AMWU until 8 June 2011, when the Graham Group proposed a meeting date of 29 June 2011. The reason given by the Graham Group for choosing the 29 June 2011 was that the Graham Group were at that time in the process of issuing the Notice of Employee Representational Rights to employees and that the Graham Group wanted to provide sufficient time for employees to return the appointment slips attached to the Notice of Employee Representational Rights before the Graham Group met with the AMWU.

[80] The relevant good faith bargaining requirement of the Graham Group in relation to the AMWU was: “attending, and participating in, meetings at reasonable times”.(s.228(1)(a))

[81] This good faith bargaining requirement was separate to any good faith bargaining requirement that the Graham Group had under the same provision in relation to other employee bargaining representatives.

[82] In circumstances where there were no other employee bargaining representatives it was unreasonable for the Graham Group to refuse to meet with the AMWU on either the 7 June 2011 or 16 June 2011, especially in circumstances where no response was given to the AMWU as to why either of those 2 dates were not reasonable. It is clear from the material before me that the Graham Group were only prepared to meet with the AMWU on a date of their choosing.

[83] It is relevant to note that the response given to the AMWU on 8 June 2011 was linked directly to the conduct of the Graham Group in defining the parameters for bargaining to suit its own objectives.

[84] The request from the AMWU on 2 June 2011 was for a meeting on 7 June 2011 to bargain for the enterprise agreement proposed by the AMWU, namely a single enterprise agreement covering all four of the Graham Group companies as a single interest employer as identified in the MSD. By delaying the meeting with the AMWU the Graham Group was able to define its bargaining agenda through issuing Notices of Employee Representational Rights in relation to four separate enterprise agreements: one for each company within the Graham Group.

[85] The Graham Group was perfectly entitled to issue the Notices of Employee Representational Rights based upon there being four separate enterprise agreements. Just because the AMWU had obtained a MSD that in no way qualified or limited the right of each of the companies in the Graham Group to initiate a bargaining process which sought four separate enterprise agreements.

[86] However in effectively refusing to meet with the AMWU until the Graham Group had put in place the necessary steps to initiate bargaining for four separate enterprise agreements the Graham Group was acting in breach of its good faith bargaining requirements in relation to the AMWU.

[87] It is important to separate the respective good faith bargaining obligations on each bargaining representative vis-a-vis each other. The good faith bargaining requirement on the Graham Group to attend and participate in meetings with the AMWU at reasonable times can only be met by actually attending and participating in meetings with the AMWU at reasonable times. For example if the Graham Group was to schedule a single meeting with the AMWU and several other employee bargaining representatives this does not necessarily meet the good faith bargaining requirements.

[88] In the purest sense where, as in this matter there are four identified employee bargaining representatives: the AMWU, Mr Issa, Mr Fogarty and Mr Bailey, and five employer bargaining representatives there are a range of very discrete good faith bargaining requirements existing between the various bargaining representatives. The complexity of the relationships is best illustrated in the following table.

THIS BARGAINING REPRESENTATIVE	HAS GOOD FAITH BARGAINING REQUIREMENTS WHICH APPLY TO	AND THE GOOD FAITH BARGAINING REQUIREMENTS ARE ABOUT THE
The Graham Group (as a single interest employer)	AMWU	Graham Group Agreement proposed by AMWU
AMWU	The Graham Group (as a single interest employer)	The Graham Group Agreement proposed by AMWU
Galintel Rolling Mill P/L	Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement
Weldlok Industries P/L	Graham Group Weldlock Industries Yagoona Enterprise Agreement
Mastermesh P/L	Graham Group Mastermesh Yagoona Enterprise Agreement
Galvanising Services P/L	Graham Group Galvanising Services Yagoona Enterprise Agreement
Mr Issa	The Graham Group Agreement proposed by AMWU
Mr Fogarty	The Graham Group Agreement proposed by AMWU
Mr Bailey	The Graham Group Agreement proposed by AMWU
Galintel Rolling Mill P/L	AMWU	The Graham Group Agreement proposed by AMWU
AMWU	Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement
Mr Fogarty	Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement
Mr Bailey	Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement
Weldlok Industries P/L	AMWU	The Graham Group Agreement proposed by AMWU
AMWU	Graham Group Weldlock Industries Yagoona Enterprise Agreement
Mr Issa	Graham Group Weldlock Industries Yagoona Enterprise Agreement
Galvanising Services P/L	AMWU	The Graham Group Agreement proposed by AMWU
AMWU	Graham Group Galvanising Services Yagoona Enterprise Agreement
Mastermesh P/L	AMWU	The Graham Group Agreement proposed by AMWU
AMWU	Graham Group Mastermesh Yagoona Enterprise Agreement

Mr Fogarty	AMWU	The Graham Group Agreement proposed by AMWU
Galintel Rolling Mill P/L	Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement
Mr Bailey	Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement
Mr Bailey	AMWU	The Graham Group Agreement proposed by AMWU
Galintel Rolling Mill P/L	Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement
Mr Fogarty	Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement
Mr Issa	AMWU	The Graham Group Agreement proposed by AMWU
Weldlok Industries P/L	Graham Group Weldlock Industries Yagoona Enterprise Agreement

The above table presumes that the AMWU is either a default bargaining representative for employees or is an appointed bargaining representative for employees at each of the four companies of the Graham Group. This presumption may not be valid as was clearly put in relation to the Galintel Rolling Mill employees.

The above table also presumes that there are only 3 employees who have been appointed as bargaining representatives. This may not be so and there may be other bargaining representatives who have not been identified to the Tribunal.

[89] What the above table shows very clearly is that the Graham Group (as a single interest employer) only has good faith bargaining requirements in relation to the AMWU and only in relation to the enterprise agreement proposed by the AMWU. Thus when the Graham Group both, failed to agree to meet with the AMWU at the times proposed by the AMWU, and, failed to give reasons as to why the times proposed by the AMWU were not reasonable, then the Graham Group (as a single interest employer) was failing to meet its god faith bargaining requirements towards the AMWU. Just because each of the four companies were initiating a process of bargaining for their own separate enterprise agreement can in no way be used by the Graham Group (as a single interest employer) to avoid its good faith bargaining requirements.

[90] Lest it be thought that the above analysis is ‘hair splitting’ each bargaining representative must understand that their good faith bargaining requirements are theirs alone and one bargaining representative cannot avoid its good faith bargaining obligations simply because another bargaining representative has complied with their good faith bargaining requirements.

[91] In the practical world of enterprise bargaining there will often be enough commonality of interest amongst the employer bargaining representatives on one side and the employee bargaining representatives on the other so that bargaining meetings will involve all interested parties and will traverse every party’s separate agenda.

[92] However this is not always the case. In the present matter it was very clear from the evidence and submissions that there is no commonality of interest amongst the employee bargaining representatives. Equally in the present matter there was a very clear and conscious decision made within the Graham Group that each of the four companies would pursue a separate enterprise agreement even while the Graham Group (as a single interest employer) was engaged in bargaining with the AMWU over the AMWU’s proposed agreement.

[93] There is one further reason why I am satisfied that the Graham Group has not met its good faith bargaining requirements under s.228(1)(a) in relation to the AMWU. On 2 June 2011 the AMWU proposed a meeting on 7 June 2011. On 9 June 2011 the AMWU proposed a meeting on 16 June 2011. On the first occasion the AMWU gave 5 days notice of the meeting and on the second occasion the AMWU gave 7 days notice. On or after 14 June 2011 the Graham Group realised that all employees of Galintel Rolling Mill P/L had appointed a bargaining representative and the Graham Group made the decision to bargaining with the Galintel Rolling Mill employee bargaining representatives over the agreement proposed by Galintel Rolling Mill P/L. On 21 June 2011 the two individual employee bargaining representatives had been provided with the proposed agreement and on 30 June a meeting of all employees was held for the purposes of the employer explaining the terms and the effect of the terms of the proposed agreement to the employees and in advising the employees of the time place and method of voting. The employees voted to approve the agreement on 8 July 2011.

[94] The speed with which the Graham Group were prepared to act to process its preferred enterprise agreement with the Galintel Rolling Mill P/L employees supports a conclusion that the Graham Groups failure to meet with the AMWU on either 7 June 2011 or 16 June 2011 was not reasonable.

The Third Set of Concerns

[95] The specific allegation made against the Graham Group by the AMWU was that the AMWU advised the Graham Group of the AMWU’s proposed bargaining guidelines and protocols on 29 June 2011 and that the Graham Group was requested to respond by 8 July 2011. The Graham Group had not responded by 14 July 2011 when the AMWU wrote of its concerns to the Graham Group.

[96] The bargaining guidelines and protocols were simply expressed. There would appear to be no reason why the Graham Group could not have responded by 14 July 2011.

[97] I am satisfied that the Graham Group did not respond to proposals made by the AMWU in a timely manner.

The Fourth Set of Concerns

[98] The specific allegation made against the Graham Group by the AMWU was ‘that your failure to inform and seek the views of all bargaining representatives, including the AMWU, as to putting the Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement 2011-2014 to a vote and then seeking FWA approval amounts to a contravention of section 228(1)(e) of the Act.’

[99] For the AMWU allegation to be made out it would be necessary to find that the Graham Group conduct complained of constituted capricious or unfair conduct that undermines freedom of association or collective bargaining.

[100] The AMWU have never suggested that employees of Galintel Rolling Mill P/L were members of the AMWU or that the employees were, at any time prior to the employees appointing bargaining representatives, represented by the AMWU as a default bargaining representative. There are real issues, which are currently before a Full Bench as to whether the Notice of Employee Representational Rights issued to employees of the Graham Group met the requirements of the Act and as to whether the process of making the Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement 2011-2014 met the requirements of the Act.

[101] Where the Graham Group meet the requirements of the Act in proposing an enterprise agreement to employees of any of the four companies which make up the Graham Group and in seeking the approval of the employees to an enterprise agreement such conduct would not constitute a breach of s.228(1)(e) of the Act.

[102] What the Graham Group did in relation to the Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement 2011-2014 was to pursue its own agenda and it was entitled to do so. If no employee of Galintel Rolling Mill P/L is represented by the AMWU either as default bargaining representative or as an appointed bargaining representative then the Graham Group does not have to seek the views of the AMWU in relation to that agreement.

[103] The scope of any enterprise agreement(s) at the Graham Group was clearly and unambiguously put into issue when the Graham Group issued the Notice of Employee Representational Rights to employees in which it identified that it was seeking separate enterprise agreements for each of the four companies of the Graham Group. Once the AMWU became aware of this (and each AMWU member also received the Notice of Employee Representational Rights) the AMWU could have applied for a scope order.

[104] In many respects the complaint of the AMWU is really that the Graham Group beat the AMWU to the punch.

[105] I am not satisfied that the Graham Group in proposing to employees of one company within the Graham Group that those employees approve an enterprise agreement only in relation to their employer is conduct which would be in breach of s.228(1)(e). Of course this is subject to the Graham Group meeting the requirements of the Act in relation to making an enterprise agreement, which in my view they did not do in relation to the Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement 2011-2014.

[106] There is a further issue in relation to the conduct of the Graham Group in making the Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement 2011-2014 which was raised by the AMWU and that is that the Graham Group had a good faith bargaining requirement to notify the AMWU of the Graham Group’s intention to proceed to make the Graham Group Galintel Rolling Mill Yagoona Enterprise Agreement 2011-2014 and then to make application for approval of that enterprise agreement. I do not consider that this issue raises concerns under s.228(1)(e). However I am of the view that the conduct of the Graham Group is in breach of their good faith bargaining requirement under s.228(1)(b). I adopt the view expressed by Commissioner Whelan in National Union of Workers v Defries Industries Pty Ltd:

Section 180 deals with different matters to those dealt with by section 228 which deals with good faith bargaining. The presentation of a document to employees as part of the requirements of section 180 is a clear indication that the employer considers bargaining to be at an end. The approval of the document would clearly bring bargaining to an end. The presentation of the document to the employees is a clear indication that the employer was not prepared to negotiate any further changes to the proposed agreement. I would consider it to be a fundamental element of bargaining in good faith that a bargaining representative notify other bargaining representatives that it no longer intended to bargain. 3

[107] Although the circumstances before Whelan C were significantly different to those before me it is clear that the Graham Group was aware that the AMWU were seeking to bargain for a single enterprise agreement that would cover the employees of all four companies within the Graham Group. The conduct of the Graham Group was deliberate non disclosure to the AMWU that the Graham Group had commenced a process of bargaining for an enterprise agreement for only one company in the Graham Group. This was relevant information for the bargaining process initiated by the AMWU through obtaining the MSD. This was relevant information which should have been disclosed to the AMWU in a timely manner. By not doing so the Graham Group were in breach of their good faith bargaining requirements under s.228(1)(b).

[108] Having considered the application of s.230(2) and (3) I now turn to s.230(1). In order that the Tribunal may make a bargaining order each of paragraphs 230(1)(a), (b) and (c) have to be satisfied.

[109] In the present matter I find that an application for an order has been made: s.230(1)(a).

[110] In the present matter I find that the requirements of s.230 have been met in relation to the agreement: s.230(1)(b)

[111] In the present matter I am satisfied that it is reasonable in all the circumstances to make the order: s.230(1)(c)

[112] The Graham Group sought to rely on the decision of Senior Deputy President Kaufman in [2009] FWA 750 in which he said:

[20] In my view FWA should be slow to interfere in the legitimate tactics undertaken by parties during the bargaining process unless an applicant for a bargaining order has demonstrated that there are sound reasons for so doing. There needs to be satisfaction that the good faith bargaining requirements are not being met. An order under s.230 is discretionary and may only be made if FWA is satisfied that it is reasonable in all the circumstances to make the order. 4

[113] I have no difficulty with accepting the correctness of that decision. In the present matter I have found that the Graham Group have not met their good faith bargaining requirements. It is appropriate in all of the circumstances of the present matter for the Tribunal to make a bargaining order.

[114] A bargaining order made under s230 must be in accordance with s.231: s.231(4):

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.

[115] The AMWU has sought 17 specific orders in addition to any other orders that the Tribunal deems appropriate. Some of the orders sought go to practical matters which need to be addressed by bargaining orders but some go to levels of detailed management of the conduct of the bargaining parties which are quite inappropriate in my view.

[116] I do not consider it necessary or desirable at this point of time and having regard to all the circumstances of the case for any orders of the type referred to in s.231(2)(a) and (b) to be made.

[117] The purpose of bargaining orders is clearly set out in the language of s.231(1). A bargaining order can only be made where the bargaining order deals with at least one of the issues identified in s.231(1). The language of s.231(1) does not permit the Tribunal to make orders if the orders do not specifically address the matters identified in s.231(1). Even where a proposed order may be made under s.231(1) on the basis that the order will do one or more of the things that a bargaining order must do under s.231(1) I adopt the view expressed by SDP Kaufman in that, ‘FWA should be slow to interfere in the legitimate tactics undertaken by parties during the bargaining process’.

[118] Senior Deputy President O’Callaghan observed in Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd:

‘The operation of a bargaining order is a significant step which has an obvious and intended capacity to alter the way in which the bargaining process operates.’ 5

[119] I also agree with the view expressed by Vice President Watson in National Union of Workers v CHEP Australia Limited:

‘The discretion conferred on Fair Work Australia to issue orders under Part 2-4 is not broad and unrestricted so as to cause bargaining to occur in a manner deemed appropriate by a member of the Tribunal. The discretion must be exercised subject to the specific limitations on its powers and consistent with the scheme of the Part which requires important preconditions to be met before an order can be made and limitations on the nature of orders available.’ 6

[120] I am of the view that some caution must be exercised in the making of bargaining orders. The bargaining order needs to be sufficiently strong so that a bargaining representative who has not bargained in good faith is required to do so and sufficiently controlling so as to prevent a bargaining representative from acting capriciously or unfairly in undermining freedom of association or collective bargaining and sufficiently managerial so as to promote the efficient and fair conduct of bargaining and all without unduly restricting the bargaining representatives from utilising legitimate tactics which are part of good faith bargaining.

[121] I am of the view that a decision that a bargaining representative has not complied with their good faith bargaining requirements is itself a valuable tool in encouraging compliance with the bargaining representatives good faith bargaining requirements. I also note that having made an application once for a bargaining order is no bar to the AMWU or any other bargaining representative making further applications for bargaining orders in relation to the same proposed enterprise agreements.

[122] I have also taken into account that the AMWU has made clear its intention to make an application for a Scope Order as soon as this decision is issued and the Interim Order is set aside. The Graham Group has suggested that it may also make application for Scope Orders.

[123] Finally I note that the consent Interim Order which I issued on 15 July 2011 has had the effect of stopping all bargaining representatives from effectively pursuing bargaining. The lull in the storm will end on release of this decision and removal of the Interim Order.

[124] The Interim Order issued in this matter on 15 July 2011 [PR511667] is set aside with effect from the date of this decision.

[125] A number of orders of the type referred to in s.231(1)(a), (b), (c) and (d) should be made. The bargaining order has been issued separately in PR514661.

COMMISSIONER

Appearances:

A Walkaden for the AMWU

D Bray of Australian Industry Group for the Graham Group

Hearing details:

2011:
Sydney
July 15
August 25, 26

1 Amended Application filed 18 July 2011, attachment ‘AMWU 1’

2 Exhibit A1, paragraph 7

3 [2009] FWA 88 at [70]

4 PR990096 at [20]

5 [2009] FWA 153 at [41]

6 [2009] FWA 202 at [47]

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