Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2019] FWC 2848

[2019] FWC 2848

FAIR WORK COMMISSION

DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2019/337)

DEPUTY PRESIDENT CROSS SYDNEY, 29 APRIL 2019

Bargaining order in relation to negotiations with Stowe Australia Pty Ltd T/A Stowe for an enterprise agreement to replace the Stowe Australia Pty Ltd – Northern Division Enterprise Agreement 2016.

[1] On 24 April, 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ‘CEPU’) applied for a bargaining order pursuant to s. 229 of the Fair Work Act 2009 (the ‘Act’). The order was sought against Stowe Australia Pty Ltd (‘Stowe’).

[2] The orders sought by the CEPU were:

1. That the Respondent be restrained from balloting its employees in respect of the proposed enterprise agreement;

2. That the Respondent write to its employees withdrawing its communication of 18 April 2019; and

3. That the Respondent work with the Applicant to develop a timetable for bargaining for a proposed enterprise agreement.

[3] The ballot to which proposed order 1 was directed was a ballot for approval of the Stowe Australia Pty Ltd – Northern Division Single Enterprise Agreement 2019 – 2023 (the ‘Proposed Agreement’) that was to open on 26 April, 2019, and close on 27 April, 2019. In light of the imminent vote, the application was heard as a matter of urgency on the afternoon of 24 April, 2019.

Legislative Framework

[4] The relevant sections of the Act for consideration in this application are sections 228, 229 and 230.

[5] Section 228 of the Act provides:

‘Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a)  attending, and participating in, meetings at reasonable times;

(b)  disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c)  responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d)  giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e)  refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f)  recognising and bargaining with the other bargaining representatives for the agreement.’

[6] Section 229 of the Act provides:

‘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.

Note: See also section 255A (limitations relating to greenfields agreements).

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.’

[7] Section 230 of the Act provides:

‘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.

Note: See also section 255A (limitations relating to greenfields agreements).

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).’

The Relevant Facts

[8] The CEPU relied upon a statement of Steven Magann dated 24 April, 2019, together with seven (7) attachments to that statement. Stowe relied upon the statement of Mr Scott Gandy dated 24 April, 2019, together with one (1) annexure to that statement.

[9] The evidence disclosed the following:

(a) Stowe has a current agreement in place that covers the relevant employees and work. That agreement is the Stowe Australia Pty Ltd – Northern Division Enterprise Agreement 2016 (the ‘Current Agreement’). The Current Agreement does not expire until 20 June, 2020. 1

(b) On or about 4 April, 2019, Stowe issued a Notice of Employee Representational Rights (‘NERR’) and a document titled a ‘Representation Election Form’. The Representation Election Form was in the following form 2:

(c) On 4 April, 2019, the CEPU wrote to Stowe regarding the Representation Election Form, requesting that Stowe write to its employees confirming that CEPU members do not need to formally nominate the CEPU to be their bargaining representative. The CEPU also indicated that ‘the CEPU looks forward to meeting with you and developing a timetable for bargaining’. 3

(d) On 8 April, 2019, Stowe wrote to the CEPU rejecting the allegations made in the correspondence of 4 April, 2019. That letter concluded with the following statement:

‘We appreciate your confirmation that you do have members in this group of employees and that you would therefore be the default bargaining representative in these circumstances, however we have since received written confirmation from all employees in this group that your status in this regard has been revoked in accordance with s178A(2) of the Fair Work act 2009.’ 4

(e) On 9 April, 2019, the CEPU wrote to Stowe. In that correspondence, the CEPU:

(i) Asked Stowe to write to employees informing them that members of the union are not required to complete the Representation Election Form in order to be represented by their union in negotiations;

(ii) Asserted that several CEPU members completed the Representation Election Form identifying their status as union members and nominating the CEPU as their bargaining representative;

(iii) Claimed that CEPU members had been approached by management representatives who had sought that those members withdraw their nomination of the CEPU as their bargaining representative;

(iv) Expressed concerns about contravention of s.228 of the Act, particularly conduct that it claimed was capricious or unfair conduct, or that undermined freedom of association or collective bargaining, and/or represents a failure to recognise and bargain with bargaining representatives; and

(v) Foreshadowed a possible application for bargaining orders ‘in the event Stowe seeks its employees’ approval of the proposed agreement’. 5

(f) Between 11 and 16 April, 2019, Stowe held meetings with all affected employees where a notice of clarification was handed out 6.

(g) On 16 April, 2019, Stowe responded to the CEPU denying breach of the good faith bargaining provisions of the Act or other intimidatory conduct, asserting that the Representation Election Form had ‘been requested by staff in the past to assist them in this process’, and stating that they had again advised employees they do not have to complete a Representative Election Form if they are a member of the union and want the union to be their bargaining representative. 7

(h) On 17 April, 2019, Mr Chris Putnam, an employee nominated bargaining representative, sent an email to Stowe that extracted a passage on good faith bargaining requirements which, it was alleged, emanated from the Fair Work Commission’s website and strongly requested various things, including that ‘all employee nominated representatives have the opportunity to meet as a collective to privately discuss the proposed agreement and ‘log of claims’ during normal working hours’. 8

(i) On 18 April, 2019 (which was Easter Thursday), and the CEPU alleges at about 3.30pm, employees who were not on leave were provided with the Proposed Agreement and information as to voting. Employees on leave were to receive this correspondence by email. 9 The vote was proposed to commence on 26 April, 2019, and to conclude on 27 April, 2019. Seventy-eight (78) employees will be covered by the Proposed Agreement.

[10] In the statements relied upon by both the CEPU and Stowe, there were assertions of thing that were, or were not, said at various meetings or in conversations 10. Often those assertions did not identify whom it was that made the statements. Nonetheless, it was not necessary to rely on any of that evidence to decide the matter.

Submissions

CEPU

[11] The CEPU noted the short time frame from the issuance of the NERR to the proposed vote, and that the Current Agreement does not expire until 20 June, 2020. It also noted that the correspondence containing the Proposed Agreement and voting materials were issued just prior to the Easter holidays.

[12] It submittedthat Stowe was not meeting good faith bargaining requirements, was engaging in capricious or unfair conduct that was undermining freedom of association and collective bargaining, and was failing to recognise and bargain with the CEPU as a bargaining representative.

[13] It also questioned how the Proposed Agreement could be put to a vote when there had been no meetings and when a bargaining representative, Mr Putnam, had written the day prior requesting that all employee nominated representatives have the opportunity to meet as a collective to privately discuss the proposed Agreement.

[14] As to the balance of convenience, the CEPU noted that the Proposed Agreement, if made and approved, could have no effect until the Current Agreement passes its expiry date on 20 June, 2020.

Stowe

[15] Stowe submitted that the CEPU had no standing to make the application for bargaining orders as it was not a bargaining representative. It submitted that no Representation Election Forms had been received that revoked the CEPU as a bargaining representative, but that all employees had nominated themselves or someone else which had the effect of revoking the CEPU as a bargaining representative.

[16] Regarding balance of convenience, Stowe agreed that the Proposed Agreement, if made and approved, could have no effect until the Current Agreement passes its expiry date on 20 June, 2020, but noted that the voting pack sent to employees anticipated an application to terminate the Current Agreement.

Consideration

[17] I was satisfied that it was reasonable in the circumstances to make an interim order in this matter, and such interim order was issued on 26 April, 2019. This decision provides the reasons for the making of that order.

[18] Stowe have clearly initiated bargaining for the Proposed Agreement (s.230(2)(a) of the Act). Stowe has, however, resisted negotiating with the CEPU who, pursuant to s.176(1)(a) of the Act is, subject to revocation, a bargaining representative for the Proposed Agreement.

[19] Stowe submitted in the hearing on 24 April, 2019 that it had received no nominations to revoke the CEPU’s status, and that each and every one of the seventy-eight (78) employees to be covered by the Proposed Agreement have nominated themselves or someone else, other than the CEPU, as their bargaining representative. As a consequence, Stowe submitted that the status of ‘bargaining representative’ of the CEPU has been revoked (s. 178A(2) of the Act). That submission differs from the Notice of Clarification handed out to employees between 11 and 16 April, 2019, which stated, ‘We have advised the CEPU ….. we have received written confirmation from all employees in this group that they have elected another person to represent them or your status in this regard has been revoked in accordance with s.178A(2) of the Fair Work Act 2009’.

[20] While it is difficult to reconcile how it is said the CEPU’s status has been allegedly revoked, it is clear that there was no evidence before the Commission to substantiate such revocation. The Legislature has placed particular emphasis on the status of employee organisations as default bargaining representatives of their members in enterprise agreement negotiations, and that status cannot, and should not, be displaced by bare assertion by an employer.

[21] On the materials presently before the Commission, Stowe is simply refusing to negotiate with the CEPU, and that conduct constitutes a serious question to be tried regarding failure to comply with the good faith bargaining requirements of s. 228(1)(e) and (f) of the Act. The interim order in this matter will allow for the prompt and confidential disposition of the issue of the CEPU’s status.

[22] The issuing of the Representation Election Form may also constitute a failure to comply with the good faith bargaining requirements of the Act, and so also constitutes a serious question to be tried. It referred to the NERR and then advised, ‘To date the Company has not received any notices from any employees indicating a wish to be represented in the current negotiations’. The absence of such notices would have been unremarkable as both the NERR and the Representation Election Form were dated, and seemingly provided to employees, on 4 April, 2019.

[23] The balance of convenience strongly favoured the making of interim orders. There can be no urgency in the conduct of the proposed vote as the Current Agreement does not expire until 20 June, 2020, and will apply until its expiry date. While Stowe points to the intended application to terminate the Current Agreement should the Proposed Agreement be made and approved, the success or otherwise of such application cannot be assumed.

[24] A further matter on balance of convenience was that, were the vote to proceed and the Proposed Agreement be made, the CEPU could be precluded from applying to be covered by the Agreement pursuant to s.183(1) of the Act in circumstances where its status as a bargaining representative had not in fact properly been revoked.

Disposition

[25] As noted above, an interim order was issued in this matter on 26 April, 2019. The terms of that order were:

‘Pursuant to s.230 of the Fair Work Act 2009 (Cth) (‘the Act’), the Fair WorkCommission orders that:

a. Stowe Australia Pty Ltd is to defer the vote to approve the draft Stowe Australia Pty Ltd – Northern Division Single Enterprise Agreement 2019 – 2023 (‘the Agreement’)scheduled for 26 and 27 April 2019 by at least 14 days, unless Stowe Australia Pty Ltd, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘CEPU’)and employee appointed bargaining representatives agree to an earlier date.

b. Stowe Australia Pty Ltd shall by 4.00pm on 1 May, 2019, provide to the Chamber of Deputy President Cross, on a confidential basis, all Representation Election Forms, dated 4 April 2019, received from its employees who will be covered by the Agreement.

c. The CEPU shall, by 4.00pm on 1 May, 2019, provide to the Chamber of Deputy President Cross, on a confidential basis, a list of its members employed by Stowe Australia Pty Ltd who will be covered by the Agreement.

This order takes effect from 26 April 2019.’

[26] These proceedings will be listed for further Hearing before 10 May, 2019.

DEPUTY PRESIDENT

Appearances:

Ms A Heffernan, for the Applicant

Ms T Moltoni, for the Respondent

Hearing details:

2019

SYDNEY

24 April

Printed by authority of the Commonwealth Government Printer

<PR707394>

 1   Statement of Steven Magann at [4] and [5].

 2   Statement of Steven Magann at Annexure ‘SM 1’.

 3   Statement of Steven Magann at Annexure ‘SM 2’.

 4   Statement of Steven Magann at Annexure ‘SM 3’.

 5   Statement of Steven Magann, Annexure ‘SM 4’.

 6   Statement of Scott Gandy. Para [3(a)] and Appendix 1.

 7   Statement of Steven Magann, Annexure ‘SM 5’.

 8   Statement of Steven Magann, Para [19] and Annexure ‘SM 6’.

 9   Statement of Steven Magann, Para [21] and Annexure ‘SM 7’.

 10 Statement of Steven Magann Paras [9], [11], [12], [13] and [14]; Statement of Scott Gandy Paras [3(b)] and [5].