DECISION

Fair Work Act 2009
s.229—Bargaining order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division
v
Stowe Australia Pty Ltd
(B2019/371)

DEPUTY PRESIDENT DEAN

SYDNEY, 13 MAY 2019

Application for an urgent bargaining order.

[1] This decision determines an urgent application for an interim bargaining order made pursuant to s.229 of the Fair Work Act 2009 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The application was made on the evening of 8 May 2019, and heard on 9 May 2019. The CEPU were given until 10am today to file further submissions, but subsequently advised (well after 10am) that it did not intend on filing anything further.

[2] The application arises from negotiations for a new enterprise agreement (the proposed Agreement) with Stowe Australia Pty Ltd (Stowe) to replace its existing enterprise agreementwhich has a nominal expiry date of 9 October 2019. The application seeks, amongst other things, to restrain Stowe from having its employees vote on the proposed Agreement. The vote is scheduled to take place on 15 May 2019.

[3] For the reasons set out below, I decline to make the interim order sought by the CEPU.

BACKGROUND

[4] The bargaining history dates back to November 2018. The history includes that Stowe, along with four other employers, initially sought a multi-enterprise agreement. The CEPU subsequently made an application for a majority support determination, and a majority support determination was made by the Commission on 29 January 2019.

[5] On 29 January 2019 the CEPU wrote to Stowe requesting its availability to meet to bargain for a single enterprise agreement.

[6] On the following day Mr Marshall of FCB Lawyers advised the CEPU that he had been appointed bargaining agent for Stowe, and provided a number of dates he was available to meet the following week to commence bargaining. His correspondence also requested that the CEPU provide its log of claims.

[7] The CEPU provided its log of claims on 5 February 2019 and the parties met on 6 February 2019. At the meeting, Mr Marshall indicated that he was not in a position to provide a substantive response to the CEPU’s claims, given the list of claims were only received the day prior. There was a discussion at the meeting about the approximate cost of some of the CEPU’s claims, being $500,000 in the first year and $650,000 per annum thereafter (the Preliminary Costings). The CEPU subsequently asked Stowe to provide the basis for the Preliminary Costings. Stowe did not do so, because it said these were initial, “back of the envelope” estimations which were made redundant by virtue of subsequent claims and discussions between the parties.

[8] On 6 February 2019, Stowe sent a letter outlining its ‘concerns’ about the CEPU’s conduct in bargaining, and a reply was provided by the CEPU on 7 February 2019.

[9] On 26 February 2019, Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division v Stowe Australia Pty Ltd [2019] FWC 3258
Case: [2019] FWC 3258
Decision Date: 13 MAY 2019

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division sought an urgent bargaining order against Stowe Australia Pty Ltd. The union claimed that Stowe had not fulfilled its obligations under a certified agreement and that the failure was causing significant detriment to its members, who were employed by Stowe. The case was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the union had demonstrated that there were genuine and urgent matters requiring resolution through bargaining that could not be resolved through other means. The union argued that the employer's failure to comply with the certified agreement had led to a range of issues, including disputes over the calculation of overtime, shift patterns, and rostering. The employer, on the other hand, contended that the union's claims were not urgent and could be addressed through existing dispute resolution processes.

The Commission found that the union had demonstrated that there were genuine and urgent matters requiring resolution. The employer's failure to comply with the certified agreement had caused significant detriment to the union's members, who were experiencing difficulties with their employment conditions. The Commission determined that these issues could not be effectively resolved through existing dispute resolution processes and that urgent bargaining was necessary to address the problems. The Commission granted the union's application for an urgent bargaining order.

The Commission ordered that the parties engage in urgent bargaining with the aim of resolving the issues raised by the union. The bargaining was to be conducted in good faith and in accordance with the Fair Work Act. The Commission also ordered that the employer take steps to remedy the issues that had caused detriment to the union's members.

Orders