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…

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 v Heyday5 Pty Ltd [2019] FWC 3253
Case: [2019] FWC 3253
Decision Date: 10 MAY 2019

CaseChat Overview and Summary

The applicant union sought an urgent interim bargaining order against the respondent employer. The union alleged that the employer had refused to negotiate in good faith over proposed changes to the employees' workplace agreements. The matter was heard in the Fair Work Commission. The central legal issues before the Commission were whether the employer had indeed refused to engage in good faith bargaining and, if so, whether an interim bargaining order should be granted. The union contended that the employer had failed to provide necessary information and had not responded to the union's requests to negotiate. The employer argued that it had acted in good faith and had provided all necessary information to the union. The Commission found that the employer had indeed refused to negotiate in good faith, as it had not provided the union with sufficient information and had not responded to the union's requests to negotiate. The Commission also found that the union had made a sufficient case for an interim bargaining order. As a result, the Commission granted the union's application for an urgent interim bargaining order. The employer was required to provide the union with all necessary information and to engage in good faith bargaining with the union. The Commission's decision was based on the evidence presented by both parties and the Commission's assessment of the parties' conduct. The Commission found that the employer's refusal to negotiate in good faith was unreasonable and unjustifiable, and that the union had made a sufficient case for an interim bargaining order. The Commission's decision was binding on both parties and had immediate effect.

Orders