Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Heyday5 Pty Ltd

[2019] FWC 3253

[2019] FWC 3253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Heyday5 Pty Ltd
(B2019/291)

DEPUTY PRESIDENT DEAN SYDNEY, 10 MAY 2019

Application for an urgent interim bargaining order.

[1] On 8 April 2019 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application for bargaining orders pursuant to s.229 of the Fair Work Act 2009. The application arises from negotiations for a new enterprise agreement (the proposed Agreement) with Heyday5 Pty Ltd (Heyday5) to replace the Heyday5 Pty Ltd Union Enterprise Agreement – Sydney Construction 2015-2019 which has a nominal expiry date of 17 May 2019. The matter is listed for hearing on 28 May 2019 and directions have been issued for the filing of submissions and evidence the parties intend to rely upon.

[2] This decision determines an urgent application made by the CEPU on 7 May 2019, and heard on the evening of 9 May 2019, for an interim order restraining Heyday5 from seeking its employees vote on the proposed agreement until the substantive application is heard on 28 May 2019.

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

BACKGROUND

[4] There is a reasonably extensive history dating back to November 2018 in relation to bargaining between the parties. The history includes that Heyday5, 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 21 December 2018.

[5] On or around 29 January 2019, the CEPU wrote to Heyday5 requesting its availability to meet to bargain for a single enterprise agreement.

[6] The following day Mr Marshall of FCB Lawyers advised the CEPU that he had been appointed bargaining agent for Heyday5.

[7] The parties held bargaining meetings on 12 and 27 February, 13 and 28 March and 16 April 2019.

[8] There has been extensive correspondence between the parties since bargaining commenced which is referred to in, or annexed to, the statements of Mr Allen Hicks, National Secretary of the CEPU, and Mr Marshall.

[9] On 1 April 2019 the CEPU wrote to Heyday5 detailing its concerns that it did not consider Heyday5 was genuinely committed to bargaining in good faith and was not genuinely committed to reaching a single enterprise agreement (the Concerns Letter), and providing its reasons for same.

[10] On 5 April 2019 a response was provided on behalf of Heyday5 to the CEPU, in which Heyday5 categorically denied any allegations that it was not engaged in good faith bargaining with respect to a proposed single enterprise agreement (the Response Letter).

[11] The Concerns Letter and the Response Letter are annexed to Mr Hicks’ statement at AH43 and AH 45 respectively.

[12] On 6 May 2019, Heyday5 notified the CEPU that it intended to request its employees vote on the proposed agreement on 15 May 2019.

[13] In its correspondence of 6 May 2019, Heyday5 relied on the following:

a. on 29 March 2019, after the fourth bargaining meeting, Heyday5 had provided a copy of a proposed agreement to the CEPU;

b. on 16 April 2019 the fifth bargaining meeting was held, and as a result of discussions that took place during that meeting, Heyday5 agreed to make changes to the proposed meal allowance;

c. between 17 and 18 April 2019, there was email correspondence between Mr Hicks and Mr Marshall clarifying some confusion about matters which had been discussed in the meeting on 16 April 2019. Further, Mr Marshall addressed claims which had been the subject of confusion during the meeting on 16 April 2019. The correspondence did not raise any new or additional claims;

d. on 18 April 2019 a revised copy of the proposed agreement was sent to the CEPU which reflected the agreed changes to the meal allowance. This was the only change to the proposed agreement from the version which had been provided on 29 March 2019. Heyday5 had not received a response to the email which attached proposed agreement or any other correspondence from the CEPU in relation to the proposed agreement as at the date of the correspondence;

e. Heyday5 had responded to all claims made by the CEPU and provided reasons for its responses either in writing or verbally in bargaining meetings;

f. the CEPU had not engaged in any further correspondence with Heyday5 since Mr Marshall’s email on 18 April 2019 and no further meetings had been scheduled or any other meetings requested;

g. the proposed agreement reflected the position of Heyday5 in relation to proposed terms of a single enterprise agreement and in reaching this position, Heyday5 had taken account of its financial position and industry and market factors;

h. Heyday5 was not in a position to make any further concessions or consider additional claims, nor did it seek any further terms other than those contained in the proposed agreement;

i. Heyday5 had formed the view that bargaining had reached an impasse.

[14] Heyday5’s correspondence of 6 May 2019 also outlined what it said was conduct by the CEPU designed to delay any possible vote by employees of Heyday5, and therefore deny employees the opportunity to make a decision on the proposed agreement. It argued that it should not be prevented or impeded from requesting its employees to approve the proposed agreement due to the application for bargaining orders or delays caused by the conduct of the CEPU, nor should the employees of Heyday5 be restrained from exercising their rights under the Act to vote on the proposed agreement.

[15] On 7 May 2019 the CEPU wrote to the Commission seeking an urgent interim order restraining Heyday5 from seeking its employees vote on the proposed agreement until the substantive application was scheduled for hearing.

RELEVANT LEGISLATIVE PROVISIONS

[16] The relevant statutory provisions are found at sections 228 - 231 of the Act as follows:

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements 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.

(2) The good faith bargaining requirements not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

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.

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) 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.

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

(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.

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;

(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) 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).

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.

[17] There is no dispute and I am satisfied that the requirements of s 229 of the Act have been met.

[18] The application the Commission is asked to now determine is whether or not to make an interim order. While it is not in dispute that the Commission has the power to make an interim order, the question is whether such an order ought be made. The general approach to such a question is to consider whether the applicant, in this case the CEPU, has established that there is a serious question to be tried, and that the balance of convenience favours the grant of the order.

THE CASE FOR THE CEPU

[19] In its substantive application, the CEPU seeks that Heyday5 be ordered to:

a. continue bargaining in respect of the terms of the proposed single enterprise agreement;

b. give genuine and timely consideration to the CEPU’s claims, with a particularised basis for any rejection of a claim;

c. ensure that at least one person with decision-making authority attend all bargaining meetings;

d. refrain from issuing a NERR in respect of a multi-enterprise agreement while the parties are negotiating for a single enterprise agreement;

e. refrain from seeking its employees approval of a multi-enterprise agreement what the parties are negotiating for a single enterprise agreement.

[20] However in its application for an interim order, the CEPU seeks only that Heyday5 be restrained from seeking its employees vote on the proposed agreement until such time as a substantive application is heard. It seeks no orders for example, that bargaining continue.

[21] The CEPU submitted that the conduct of Heyday5 was in breach of the good faith bargaining requirements of the Act because Heyday5:

a. refused to meet and negotiate;

b. refused to provide particulars in respect of its rejection of the overwhelming majority of the CEPU’s claims;

c. refused to have a person with decision-making authority attend meetings;

d. refused to depart in any substantive way from the terms of the multi-enterprise agreement that had been voted down; and

e. refused to undertake not to put a multi-enterprise agreement to the vote while the parties were bargaining for a single enterprise agreement.

[22] It was this conduct, contended the CEPU, that provided an arguable case to support the making of the interim order it sought. In other words, the conduct amounted to a serious question to be tried.

[23] The CEPU’s application was supported by a detailed statement of Mr Hicks which included some 51 annexures. The annexures were primarily made up of the correspondence between the parties in the course of their bargaining.

[24] In terms of the balance of convenience, the CEPU contended that the effect of allowing the vote to proceed may amount to “final relief” in that the substantive proceedings would be otiose if employees voted in favour of the proposed agreement. To this end, the CEPU argued there was no prejudice to Heyday5 if the vote were postponed however there would be prejudice to the CEPU if there was a vote in favour of the proposed agreement.

THE CASE FOR HEYDAY5

[25] Heyday5 opposed the CEPU’s application for an interim order and vigorously denied that it had breached its good faith bargaining obligations. In support of its position, Heyday5 relied on statements of Mr Marshall and Mr John Williams, Managing Director of Heyday5, in addition to a number of annexures of the statement of Mr Hicks.

[26] Heyday5 contended that the CEPU had not established that there was a serious question to be tried, nor that the balance of convenience favoured the granting of the order.

CONSIDERATION

[27] The legislative purpose of the good faith bargaining requirements is not simply to require parties to bargain in good faith, but to bargain to achieve an enterprise agreement if possible.

[28] In Public Sector Professional Scientifica Research, Technical, Communications, Aviation and Broadcasting Union v Australian Commission 1 it was held that:

“… the determination of whether or not a negotiating party is ‘negotiating in good faith’ may depend on the conduct of the party when considered as a whole. For example if a party is only participating in negotiations in a formal sense, but not bargaining as such then they may not be ‘negotiating in good faith’. Negotiating in good faith would generally involve approaching negotiations with an open mind and a desire to reach an agreement as opposed to simply adopting a rigid predetermined position and not demonstrating any preparedness to shift.”

[29] It is not a breach of the good faith bargaining provisions for a party to adopt a position, on reasonable grounds, that it can make no further concessions because of its financial position. This was made clear by the Full Bench of the Commission in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division) 2 as follows:

“[48] The good faith bargaining requirements in s.228 require bargaining representatives to “bargain” but do not require them to make concessions or to reach agreement. An order would be beyond power if it required a party to put a different negotiating position to that which it wished to put. However it is not beyond power to require a party to put its negotiating position. Such an order requires no concessions to be made.”

[30] In The Broken Hill Town Employees’ Union v Barrier Social Democratic Club Ltd 3 (‘Broken Hill Town Employees’ Union’), Vice President Watson said:

“[23] I turn to the circumstances following the first vote. The Club contends that it only held one negotiation meeting between the first vote and the second vote. It also consulted with employees separately. It proposed a revised enterprise agreement and distributed it to all bargaining representatives well in advance of the negotiation meeting. It invited claims from other bargaining representatives in advance of the meeting. The BHTEU provided its claims and they were discussed at the meeting on 22 November 2011. Claims inconsistent with the Club’s draft were rejected.

[24] I do not consider that the Club breached any good faith bargaining requirement in following this process. Where a bargaining representative has an opportunity to participate in the process and present its position for consideration, the requirements to recognise, meet with and consider proposals of bargaining representatives are likely to be satisfied. The process for approval essentially then became a battle for the hearts and minds of the employees who decide whether to approve the agreement. I do not consider that the agreement reached with employees is tainted by any failure to follow the good faith bargaining requirements in the Act. Even if a valid application was before me I would not make a good faith bargaining order.”

[31] Deputy President Sams in United Voice 4, said:

“[22] … Obviously, there is no requirement for bargaining representatives to reach an agreement before a vote of employees is proposed to be taken. Indeed, there have been numerous examples of vigorous, hard-fought campaigns by Unions to encourage employees to vote against an employer’s proposed agreement. In my view, unless there is a sound basis for believing the vote itself will be tainted by a failure of the Club to properly explain the terms of the agreement or a failure to comply with any of the mandatory pre-approval steps, then I consider it would not be appropriate to cancel the vote of employees. I have no such evidence before me in this case and consequently do not intend to make the order sought.

[23] While I acknowledge that there has only been two meetings between the Club and the Union, it seems an unassailable proposition that the negotiations have reached a stalemate. Given these circumstances, the negotiations for a new agreement have, in my view, reached the point where it is appropriate and desirable for the views of the employees to be sought …”

[32] Based on the evidence and applying the decisions referred to above, I am satisfied on a preliminary basis that Heyday5 is meeting its good faith bargaining obligations, for the reasons set out below.

[33] While the CEPU asserts that Heyday5 has no intention of reaching an agreement on a single enterprise agreement, this is at odds with the current factual position of Heyday5 seeking to have employees vote on a proposed single enterprise agreement.

[34] The evidence to date demonstrates that the parties have met on at least five occasions to participate in bargaining meetings. There is no evidence to support a finding that Heyday5 has refused to meet with the CEPU.

[35] The evidence also demonstrates that responses have been provided by Heyday5 to the CEPU both orally and in writing. It may well be that the CEPU is dissatisfied with those responses, but this does not mean that responses have not been provided, nor does it follow that it did not give genuine consideration to the CEPU’s claims.

[36] There is no evidence to support the claim that Heyday5 has not given genuine consideration to the CEPU’s claims. On the contrary, a number of the annexures to Mr Hicks’ statement, being email exchanges between the parties, demonstrate both that consideration has been given and that Heyday5 has agreed to a number of claims made by the CEPU. For example Mr Hicks’ notes of the meeting held on 28 March 2019 5 reveal that in respect of some of the 13 outstanding items, Mr Marshall on behalf of Heyday5:

a. agreed to make changes with respect to item 1;

b. agreed to increase a daily allowance relating to accommodation in relation to item 2 and further agreed that Heyday5 would reimburse actual costs if the accommodation cost exceeds the allowance;

c. agreed to ensure that certain training is carried out with respect to item 3;

d. explained why Heyday5 would not agree to item 4, i.e. because it wanted to make its agreement “code compliant”;

e. agreed to increase an allowance for use of a license in respect of item 5; and

f. rejected a claim for all overtime to be at double time (item 9) because of the significant cost increase without any other benefit or trade-off to compensate for the increase.

[37] In respect to the CEPU’s claim that Heyday5 is not bargaining in good faith because it did not have a person with decision-making authority attending meetings, I note there is nothing unusual about the practice of representatives of parties on either side of the bargaining table being required to consult with others or obtain instructions before reaching a final agreement. In fact it would be unusual that a union would agree to proposals put by an employer in a bargaining meeting without seeking the views of their members. Further, Heyday5 is entitled to have Mr Marshall represent it as its bargaining representative. Heyday’s choice of bargaining representative does not mean it is not bargaining in good faith.

[38] There is no evidence to support a finding that Heyday5 is currently pursuing a multi-enterprise agreement. Simply because it had done so in the past does not mean that it is currently not bargaining in good faith.

[39] The CPU has failed to demonstrate that that there is a serious question to be tried or that the balance of convenience favours the making of the order. I emphasise that my conclusions, based on currently untested evidence, are necessarily preliminary given the nature of these proceedings.

[40] For these reasons, I am satisfied that it is not appropriate to make the order sought by the CEPU. An order to this effect will be published with this decision.

DEPUTY PRESIDENT

Appearances:

M Wright for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

L Berton for Heyday5 Pty Ltd.

Hearing details:

2019.

Sydney:

May 9.

Printed by authority of the Commonwealth Government Printer

<PR708202>

 1   AILR Vol 36 No.21 374.

 2   [2012] FWAFB 1891.

 3 [2012] FWA 196.

 4   [2012] FWA 9047.

 5   Annexure AH41 to Exhibit 1.