Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Pro-Built Control Pty Ltd

[2013] FWC 2640

[2013] FWC 2640

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
Pro-Built Control Pty Ltd
(B2013/705)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MAY 2013

Application for a bargaining order.

[1] On 7 March 2013 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied for bargaining orders pursuant to section 229 of the Fair Work Act 2009 (the FW Act).

[2] The CEPU had been negotiating with Pro-Built Control Pty Ltd (the Respondent) for an enterprise agreement. During those negotiations the employer called into question whether the CEPU was a bargaining representative for any of its employees who would be covered by the agreement.

[3] Much of the evidence in this matter was not contested.

[4] Mr John Mannu, the Respondent’s representative, first met with the CEPU on 15 January 2013 at which time the CEPU provided the employer with a proposed agreement. 1 The next day the CEPU proposed a schedule of meetings commencing 21 January 2013. When the employer advised on 18 January 2013 that they would be able to meet again on 15 February 2013 the CEPU advised the employer on 21 January 2013 that they wished to meet earlier.

[5] On 23 January 2013 Mr Mannu, on behalf of the Respondent, asked the CEPU to “forward by return a copy of the letter or whatever it is that appointed you the Bargaining Representative for each of the employees you claim to represent.” 2 The CEPU declined to identify its members to Mr Mannu.

[6] Unbeknown to the CEPU, on 24 January 2013. Mr Stephen Lees, a director of the Respondent met with employees. As a consequence there was a proposal “to move in the direction of an EA with some employees and employer” and “this was accepted by the employee group present.” 3

[7] The employees then met separately and appointed Mr Greg Maclennan as their bargaining representative.

[8] The CEPU notified the Fair Work Commission of a bargaining dispute on 21 January 2013 and that application was listed for a conference 30 January 2013.

[9] On 29 January 2013 Mr Mannu wrote to my chambers advising that the Respondent “had serious doubts as to whether anyone has appointed the union as a Bargaining Representative.” Mr Mannu asked that the conference be cancelled as there was no proof “that this Application has been properly made by a Bargaining Representative and accordingly we do not believe that a hearing can be held.”

[10] The conference took place on 30 January 2013. On 1 February 2013 the CEPU wrote to the Respondent asking if Mr Scott Riches, the site organiser, could hold a meeting of employees.

[11] It is not in dispute that on 3 February 2013 the employer distributed a notice of representational rights to some of its employees. It is also not in dispute that it did not distribute the notice to all of its employees. In particular it did not distribute the notices to certain casual employees because their employment would be coming to an end and it formed the view that those employees would not be covered by the Agreement.

[12] On 4 February 2013 the CEPU wrote to the Respondent seeking a response to its claim by noon on 7 February 2013 as a meeting of the parties was scheduled for 8 February 2013.

[13] On 5 February 2013 Mr Ian Dixon of Gadens Lawyers wrote to the CEPU on behalf of the Respondent and advised that the notice of representational rights had been circulated to “each employee who was employed at the notification time for the Agreement and who will be covered by the Agreement.” That letter asked the CEPU to advise if it had been appointed a Bargaining Representative of any of the employees. It further advised that the meeting scheduled for 8 February 2013 was cancelled and proposed a meeting for 11 or 12 February 2013.

[14] Mr Riches became aware, in this period, that several union members who were employed by the Respondent did not receive a notice of representational rights. On 4 February 2013 four of those union members were given notice of termination of their employment.

[15] On 11 February 2013 the parties met to discuss the proposed agreement.

[16] On 18 February 2013 Mr Riches wrote to Mr Dixon and asked when further negotiations could be arranged. Mr Dixon replied on 18 February 2013 that he should be able to respond in the next two days.

[17] On 25 February 2013 Mr Dixon wrote to the CEPU enclosing a proposed agreement, on a without prejudice basis. That letter advised that there will need to be considerable discussion undertaken if there is to be any real and rapid movement towards mutual agreement. Mr Dixon advised in that letter that the company had distributed the bargaining notice and “to date none of those that have been returned, and we understand it almost all, have nominated the ETU as a Bargaining Representative but have chosen someone else.” Mr Dixon asked the CEPU to “confirm that [it] had been so appointed and forward a copy of the Instrument of Appointment at your earliest convenience.”

[18] On 26 February 2013 the CEPU asked for another meeting. When no response was received by 28 February 2013 the CEPU contacted my chambers to request a further conference as a matter of urgency.

[19] On 28 February 2013 Mr Dixon wrote to the CEPU in response to that request and advised that the status of the CEPU as a bargaining representative was a preliminary issue. It was their understanding that all employees who would be covered by the agreement had appointed someone else as their bargaining representative. He asked the CEPU to advise who had appointed the CEPU as their bargaining representative and said “a copy of the instrument of appointment would be appreciated and should be given.”

[20] On 4 March 2013 in response to the notice of listing of the bargaining dispute Mr Dixon wrote to my chambers and advised that the CEPU did not have standing to bring its bargaining dispute application to the Commission as it was not a bargaining representative for any of the employees who would be covered by the agreement. Mr Dixon advised that if the CEPU was able to establish it was a bargaining representative, the Respondent would be prepared to meet with the CEPU. He asked that the conference be cancelled.

[21] The conference proceeded on 5 March 2013. Mr Christian Nyemcsok, a member of the CEPU and a casual employee of the Respondent, advised Mr Riches that he could inform the Respondent that he was a member of the CEPU and Mr Riches did so.

[22] The parties on 5 March 2013 continued to discuss the terms of the agreement. Mr Riches thought that progress had been made and asked the company to put forward their proposal on wages and other matters at the next meeting. The CEPU was also asked if the next bargaining meeting could be attended by all bargaining representatives. A meeting was planned for 18 March 2013.

[23] On 6 March 2013 the CEPU wrote to Mr Dixon confirming the outcome of the conference. That letter advised that the CEPU was Mr Nyemcsok’s bargaining representative. The CEPU asked for a response by 14 March 2013.

[24] On 7 March 2013 Mr Dixon advised the CEPU that as Mr Nyemcsok’s employment was coming to an end in the very near future “he was not a person with whom our client will make an Enterprise Agreement within section 172(2). Neither is he a person who was employed at the notification time of the Agreement and will be covered by the Agreement under s173(1).” It was put that Mr Nyemcsok was not entitled to appoint a bargaining representative and the CEPU could not be his bargaining representative. Mr Dixon advised that any further discussions were subject to the CEPU establishing that it was a bargaining representative. Mr Dixon advised that the Respondent considered that “parallel or joint negotiations would be undertaken with the bargaining representatives appointed by the workforce. If your role as a bargaining representative is established you will of course be kept aware of the terms and conditions of any proposed enterprise agreement, the points in issue with yourself and the employees you represent and the possibility of a vote being taken.”

[25] On 7 March 2013 Mr Nyemcsok was told that his employment would end on 8 March 2013. It was his evidence that he started work on about 21 January 2013 as a casual employee. He was told by Mr Steve Lees, the owner of the Respondent, that there would be four to six weeks work which was reflected in the formal offer of employment provided to him by the Respondent. On 2 February 2013 Mr Steve Glenn, the project manager, told Mr Nyemcsok that his employment would end on 4 February 2013 because full time employees would be returning to Victoria. On 8 February 2013 Mr Lees contacted Mr Nyemcsok and asked him if he was interested in again working for the Respondent. Mr Nyemcsok sent Mr Lees an email and told him that he was annoyed that his earlier contract had been terminated. Mr Lees subsequently offered to reemploy him as a casual. Mr Nyemcsok commenced work again on 11 February 2013. On 7 March 2013 Mr Glenn told him that his employment was terminated because there was no work for him. His last day was 8 March 2013. Mr Nyemcsok gave evidence that on 5 March 2013 a new A grade electrician commenced work and he understood him to be a casual employee. Mr Nyemcsok said he was never given a notice of representational rights and he was not aware of the meeting on 24 January 2013 at which employees nominated another employee to be their bargaining representative.

[26] On 7 March 2013 the CEPU made this application for bargaining orders.

[27] That application sought orders that members not be terminated, that terminated members be reinstated and the Respondent recognise the CEPU as a bargaining representative and that the Respondent meet with it and other bargaining representatives in all future negotiations.

[28] On 7 March 2013 Mr Dixon wrote to my chambers advising that it was the Respondent’s view that the application was “fundamentally flawed and the ETU does not have any standing to make the application under section 229 of the Fair Work Act 2009 as it is not a bargaining representative for the parties’ proposed enterprise agreement.” Mr Dixon reiterated that the casual employees who were members of the CEPU were “not persons with whom the employer would seek to make an enterprise agreement”.

[29] The Application was initially listed for hearing at 4pm on 12 March 2013.

[30] On 8 March 2013 the CEPU sent an email to the Respondent in which it advised that it had heard rumours that an agreement had been circulated to employees and that employees would be asked to vote on 12 March 2013. The CEPU sought the Respondent’s response to these rumours. 4

[31] Mr Dixon advised on the same day that an agreement had been circulated and the employees would be voting on the agreement. 5

[32] As a result of that information the CEPU asked for the hearing to be rescheduled for 8am on 12 March 2013, which was able to be accommodated.

[33] On 8 March 2013 the Respondent’s lawyers said they would not be available at 8am. However Mr Dixon was able to attend albeit for a short period. Consequently, I determined to make interim orders which provided that no further steps were to be taken by the Respondent to have the enterprise agreement approved by its employees. 6

[34] However, prior to making this order, an agreement was put to a vote on 12 March 2013 and it was Mr Mannu’s evidence that ten of the eleven employees who received a notice of representational rights voted in favour of the Agreement.

[35] At the hearing of the substantive application Mr Mannu gave evidence for the Respondent. It was his evidence that Mr Lees was responsible for negotiating the proposed agreement with the employees. It was his evidence that he was negotiating with the CEPU in good faith and that as a consequence of the approach by the CEPU, Mr Lees had advised employees who had then put forward some matters that they wanted to see in any agreement. 7 Mr Mannu was not aware that an agreement had been finalised. He thought that employees were provided with a draft agreement. However it is clear from his evidence that Mr Mannu was not privy to the negotiations between Mr Lees and the employees.8 Mr Mannu also gave evidence that he did not know when he met with the CEPU on 5 March 2013 that the proposed agreement had gone out to employees.9

[36] Mr Mannu denied that the sacking of five employees, at the same time as the notice of representational rights was circulated, was linked to bargaining. It was his evidence that three employees at the Melbourne Sports and Aquatic Centre were dismissed for operational reasons. 10 Mr Mannu did not give evidence about the termination of the other employees. He was not involved in the decision to terminate Mr Nyemcsok.11

Was the CEPU a bargaining representative?

[37] Section 176 of the FW Act provides as follows:

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

.......................................

Employee may appoint himself or herself

(4) To avoid doubt and despite subsection (3),, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.

Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).”

[38] It is clear therefore, that contrary to the position put by the Respondent in correspondence to the CEPU, there is no obligation for an employee to appoint his or her union as his or her bargaining representative. The union, by virtue of section 176 of the FW Act, is the default bargaining representative unless the union member either appoints someone else or has revoked the status of the organisation as his or her bargaining representative.

[39] The FW Act also provides at section 173 that a notice of representational rights must be given to employees:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.”

[40] At the time the notice was given to employees of the Respondent on 3 February 2013 12, employees for whom the CEPU was the default bargaining representative were employed by the Respondent. While Mr Nyemcsok may not have been employed on this day he was employed on 11 February 2013 and while there was no obligation to give him a notice of representation rights, the CEPU was his bargaining representative.

[41] The Respondent submitted that it was not required to provide certain employees with a notice of representational rights because these employees would not be covered by the Agreement when it was made.

[42] I do not accept the Respondent’s submissions on this construction of the FW Act.

[43] A Full Bench 13 gave consideration to the expression “employees who will be covered by an agreement” in a case involving an appeal against a majority support determination.

[44] In that case the Appellant, contended that the word “will” in the expression “a majority of employees.... who will be covered by the agreement in s.237(2)(a) ... requires an assessment of which employees, if any, will be covered by the proposed agreement and then ascertaining that a majority of those employees want to bargain.” 14

[45] The Full Bench said as follows:

“[21] In this context we make two observations. First, it is trite that the composition of an employer’s workforce will typically vary over time as employees come and go through ordinary turnover caused by resignation, retirement and the like. Some industries are characterised by a higher incidence of employers whose workforces vary greatly in size as seasons and subcontracts come and go. Secondly, at the commencement of bargaining and throughout the course of bargaining it will often, if not typically, be impossible to determine precisely when an agreement will be made. In some instances it will not be possible to predict with any accuracy whether an agreement will be made at all. It must be remembered that the duty to bargain in good faith does not require a bargaining representative to reach agreement (see s.228(2)(b)).

[22] The expression “employees who will be covered by [an] agreement” appears in numerous sections of the FW Act.

[23] When consideration is given to the many contexts in which the expression “employees who will be covered by [an] agreement” is used, we are compelled to the conclusion that the legislature used that expression merely as a way of conveniently referring to the group or groups of employees who are proposed to be covered by an agreement (and who, therefore, will be covered when the agreement is made) rather than as a requirement that calls for a prediction as to which particular employees in the group will, when the agreement is made, be covered by the agreement.”

[46] This reasoning applies equally to the provisions under consideration here. An employer is not able to exclude from the bargaining process some employees because it forms the view that those employees will not be employed when the vote is taken. If the Respondent was correct, an employer could exclude casual employees from bargaining because it expected that they would be finishing up before the agreement was concluded, but because they were in fact still employed on voting day, they would be entitled to vote for the agreement.

[47] Employees, whilst employed, who are within the scope of the proposed agreement may appoint a bargaining representative or have their union be their default bargaining representative. If their employment is terminated before the vote is conducted, they are not entitled to vote on the Agreement. However, while they are employed they are entitled to participate in bargaining.

[48] It is not necessary for this decision to determine if the Respondent complied with section 173 of the FW Act. Irrespective of whether an employer gives an employee a notice of representational rights, the CEPU was the default bargaining representative for its members who were employed by the Respondent.

[49] I find therefore that at the relevant time the CEPU was a bargaining representative for an employee who would be covered by the Agreement and it was entitled to make this application.

The procedural requirements

[50] Section 229 of the FW Act provides as follows:

“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 the FWC 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

(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) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.”

[51] The CEPU accepted that it did not comply with section 229(4)(b) or (c) of the FW Act. It submitted that because the CEPU was advised that Mr Nyemcsok was to be terminated, it was not appropriate that they comply with these provisions. 15 Further, in relation to the vote by employees, the CEPU did not become aware of this until after it had made the application. The Respondent did not put any submissions on this point.

[52] I have decided to consider the application despite the fact that the CEPU did not comply with section 229(4)(b) or (c) of the FW Act. I find in light of the termination of Mr Nyemcsok’s employment that it is appropriate in all the circumstances to consider the application. Further in light of the decision of the Respondent to put the agreement to a vote I consider it appropriate in all the circumstances to consider the CEPU’s application that the Respondent failed to comply with its good faith bargaining obligation to provide the CEPU with relevant information. To have required the CEPU to provide the Respondent with details of its concerns and to give it time to respond would have made the application otiose.

Did the Respondent meet its good faith bargaining requirements?

[53] Section 228 of the FW Act sets out the good faith bargaining requirements as follows:

“228 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.”

[54] The CEPU submitted that the Respondent did not disclose relevant information. The information that the CEPU submitted the Respondent was bound to disclose was that it was bargaining with its employees, that it had reached an agreement and that the agreement was being put to a vote. 16

[55] This information was not confidential information or commercially sensitive information.

[56] The evidence established that the Respondent did not disclose relevant information to the CEPU. 17 The Respondent did not believe it had to because the CEPU was not a bargaining representative.

[57] It is noteworthy that at the same time that the Respondent was considering its response to the CEPU’s claim and proposing further meetings if the CEPU could establish that it was a bargaining representative, it was finalising an agreement with another bargaining representative. The Respondent did not at any time put this proposed agreement to the CEPU and seek its response. This conduct calls into real question whether the Respondent was giving genuine consideration to the CEPU’s proposals.

[58] The CEPU submitted that five employees were terminated because they were union members and to end the CEPU’s role as a bargaining representative. 18 The CEPU submitted that this was capricious or unfair conduct that undermines freedom of association or collective bargaining. It was conceded by the CEPU that they were not able to prove that the Respondent knew that the first four employees whose employment was terminated on 5 and 7 February 2013 were union members.19

[59] However it was submitted that the Respondent did know on 6 March 2013 that Mr Nyemcsok was a union member and a day later his employment was terminated. 20 The Respondent did not call evidence from the person who made the decision to terminate Mr Nyemcsok. The Respondent submitted that Mr Nyemcsok’s employment had come to an end.21 It was submitted that Mr Nyemcsok’s evidence that two days before his employment was terminated, that another casual A grade electrician was employed22, was uncertain because in cross examination he said he was not “aware of the circumstances” of the new employees at the site.23 In cross examination Mr Mannu gave evidence that he was not involved in the decision to terminate Mr Nyemcsok’s employment and that he could not give any evidence about why he was selected or why he had to go on that day.24 In re-examination Mr Mannu gave evidence that he “understood that his tenure with the site was no longer required as works were scaling down and we also had a number of chaps coming back from a project in New South Wales that would be replacing him on site.”25 It is unclear if Mr Mannu was referring in re-examination to the circumstances of the earlier termination of Mr Nyemcsok’s employment or the second occasion on which Mr Nyemcsok’s employment was terminated. I prefer his evidence in cross examination that he did not know why Mr Nyemcsok’s employment was terminated at that time.

[60] However the CEPU accepted that Mr Nyemcsok’s contracted four to six weeks’ work had come to an end. It submitted that the Respondent could have kept Mr Nyemcsok on the books as a casual employee. This, the CEPU submitted, meant that “if there was no work for him then they had no work for him at least he was still on the books. That would have entitled him to vote on this agreement as someone who would be covered by it.” 26 It is not necessary for me to determine if Mr Nyemcsok had remained “on the books” but was not employed that he would have been entitled to vote on the Agreement.

[61] I am unable on the evidence before me to find that Mr Nyemcsok’s employment was terminated to prevent the CEPU from having a role as a bargaining representative. It appears from the evidence of Mr Mannu and the submissions of the Respondent that it had formed the view that it did not have to bargain with intermittent casual employees and did not have to recognise their bargaining representative even if the casual was currently employed.

[62] Throughout the bargaining process the Respondent questioned the CEPU’s role as a bargaining representative because it formed the view that it was not obliged to recognise the bargaining representatives of certain casual employees because the Respondent anticipated that these employees would not be employed when the Agreement was to be made. For the reasons set out earlier the Respondent was obliged to recognise the bargaining representative of employees who were employed within the scope of the proposed agreement. While the Respondent did in fact at various times since January 2013 negotiate with the CEPU, its failure to recognise that the CEPU was in fact a bargaining representative meant that the Respondent did not comply at all times with its obligations to recognise the CEPU as a bargaining representative.

[63] Mr Dixon accepted that had the Respondent accepted the CEPU was a bargaining representative and “the agreement had been made with the employees.....it’s a different result. I freely concede that. In other words, they should not have done it, gone to vote, at all.” 27

[64] I have concluded that the Respondent did not meet its good faith bargaining obligations when it did not disclose relevant information and when it failed to recognise the CEPU as a bargaining representative.

[65] Section 230 of the FW Act provides a follows:

“230 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.

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).”

[66] The evidence establishes that the Respondent had agreed to bargain. I found that the Respondent did not meet its good faith bargaining requirements and I have permitted the application to be considered despite non compliance with section 22(4)(b) and (c) of the FW Act. I find therefore that the Commission is able to make good faith bargaining orders. That making of orders is discretionary.

[67] The CEPU seeks the following orders.

1. That Members not be terminated.

2. That if the Member has been terminated, he be reinstated to his position.

3. That the Respondent recognise that the Applicant is a bargaining representative for the agreement and meet with it and other bargaining representatives in all future negotiations.

[68] I am not prepared to order that the Respondent reinstate Mr Nyemcsok as I am unable to conclude that his employment was terminated in breach of the Respondent’s good faith bargaining obligations. Further it is not clear on the evidence that there is any position to reinstate Mr Nyemcsok to.

[69] I am not prepared to order that the Respondent conduct simultaneous bargaining sessions with all bargaining representatives. It was not put that the failure to hold simultaneous bargaining sessions breached the Respondent’s good faith bargaining obligations.

[70] I am prepared to order that the Respondent recognise the bargaining representative of each employee who is within the scope of the proposed agreement.

[71] I am further prepared to order that the Respondent provide, within two days of the making of this order, the CEPU with a copy of the agreement that was circulated to employees.

[72] I am also prepared to order that the Respondent meet with the CEPU within seven days of the making of this order for the purpose of giving genuine consideration to any proposal put by the CEPU.

[73] Orders 28 to this effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

K Reidy for the Applicant.

I Dixon for the Respondent.

Hearing details:

2013.

Melbourne.

22 and 25 March.

 1   Exhibit CEPU 1 at [7]

 2   Ibid at SR7

 3   Ibid at SR8

 4   Exhibit CEPU 3

 5   Ibid

 6   PR534754

 7   Transcript PN 358

 8   Transcript PN 363

 9   Ibid PN 425

 10   Ibid PN 382

 11   Ibid PN 435

 12   Exhibit R1 at [4]

 13   CBI Constructors Pty Ltd v CFMEU [2011] FWAFB 7642

 14   Ibid at [16]

 15   Transcript PN 478

 16   Transcript PN 504-505

 17   Transcript PN 611

 18   Ibid PN 523

 19   Ibid PN 524

 20   Ibid PN 525

 21   Ibid PN 617

 22   Exhibit CEPU 2 at [11]

 23   Ibid PN 567

 24   Ibid PN435-436

 25   Ibid PN 467

 26   Ibid PN 526

 27   Ibid PN 618

 28   PR536151

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