Construction, Forestry, Maritime, Mining and Energy Union v Big Hill Cranes Pty Ltd

[2021] FWC 6400

[2021] FWC 6400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Construction, Forestry, Maritime, Mining and Energy Union
v
Big Hill Cranes Pty Ltd
(B2021/1050)

DEPUTY PRESIDENT COLMAN MELBOURNE, 19 NOVEMBER 2021

Application for bargaining order to prevent vote on an enterprise agreement – self-appointed employee bargaining representatives – signed employee statements requesting vote on agreement – whether employer pressured employees to bargain directly and to request a vote – evidence – requirements of s 230(3) not met – application dismissed

[1] This decision concerns an application made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for a bargaining order under s 229 of the Fair Work Act 2009 (Cth) (FW Act), the effect of which would be to restrain Big Hill Cranes Pty Ltd (BHC) from proceeding with an employee vote on its proposed enterprise agreement, which is scheduled to take place on Sunday 21 November 2021. The proposed agreement would cover BHC’s employees employed as truck drivers, riggers, boilermakers, and crane operators.

[2] The application was initially the subject of conciliation proceedings before Gostencnik DP, during which BHC, which had until that time been bargaining directly with employees and not the CFMMEU, conceded that the union was a bargaining representative for the proposed agreement because its members were among the employees who would be covered by the proposed agreement. Eighteen of the twenty-two employees who will be covered by the agreement had appointed themselves as a bargaining representative. Following the proceedings before the Deputy President, BHC and representatives of the CFMMEU held two bargaining meetings, during which the CFMMEU asked that the company convene meetings of all bargaining representatives. The company declined to do so and decided to put its proposed agreement to a vote of employees. Eighteen employees had since signed documents requesting that the agreement be put to a vote. Further conciliation before Gostencnik DP took place on 18 November 2021, but without a resolution. The CFMMEU then sought an urgent hearing of its application. The application was reallocated to my chambers on 18 November 2021.

[3] I heard the application at noon today. At the conclusion of proceedings, I indicated to the parties that, in light of the urgency of the matter, I would hand down my decision later today. Given the circumstances, my reasons for decision are somewhat shorter than they might otherwise have been. The background, which I summarise below, is derived from the witness statement of the CFMMEU’s organiser, Mr Patrick Farrelly, dated 17 November 2021.

Background

[4] In the course of 2021, the CFMMEU sought to commence bargaining with BHC for an enterprise agreement. In mid-September, Mr Farrelly obtained signatures on a petition of BHC employees requesting that the company bargain for an enterprise agreement and confirming that the union was their bargaining representative. On 15 October 2021, BHC issued a notice of employee representational rights, which had the effect of commencing bargaining for a new enterprise agreement to replace the Big Hill Cranes Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015 (2011 Agreement).

[5] From 21 to 28 October 2021, BHC did not recognise the CFMMEU as a bargaining representative, on the basis that most of the employees who would be covered by the proposed agreement had provided the company with notices of appointment nominating themselves as bargaining representatives, and the union had not established the basis on which it claimed to be a bargaining representative. On 29 October 2021, the CFMMEU lodged an application in the Commission for bargaining orders. At the initial hearing of the CFMMEU’s application on 1 November, BHC offered to delay the employee vote on the enterprise agreement, which was scheduled for 5 November 2021, until 19 November 2021.

[6] From 1 to 10 November 2021, the CFMMEU and BHC exchanged correspondence to the following effect. The parties agreed to meet on 10 November 2021 at the company’s premises. The CFMMEU sought assurances that the meeting would be attended by all bargaining representatives for the agreement and asked to be provided with the names and contact details of those bargaining representatives. BHC rejected these requests, on the basis that to agree to them would breach the company’s privacy obligations and result in bargaining not proceeding in a manner that was efficient or fair. The CFMMEU objected to there being an employee vote on the proposed agreement and advised the company that it considered the refusal of its request for joint meetings to be a breach of s 228(1)(e) and (f) of the FW Act, and that the refusal to provide contact details for other bargaining representatives was a contravention of s 228(1)(b) of the FW Act. It also stated it believed that bargaining was not proceeding efficiently or fairly because there were multiple bargaining representatives.

[7] BHC declined to invite all bargaining representatives to the meeting on 10 November 2021. Despite this, Mr Farrelly and another CFMMEU official attended the meeting. At the meeting the parties discussed their respective positions. A key concern of BHC was that the agreement proposed by the CFMMEU reflected Melbourne construction industry rates, which it feared would render the company uncompetitive in regional areas. The union representatives suggested possible solutions to this concern, but these required further consideration. They also maintained that other bargaining representatives should have been invited to the meeting so that they could be given a fair chance to hear the union’s proposals. At the end of the meeting, a second, ‘virtual’ meeting was scheduled by the parties for 12 November 2021.

[8] On 12 November 2021, BHC advised the CFMMEU that almost all of its employees had indicated that they wished to proceed to a vote on or by 19 November 2021, that they did not want to meet to discuss the agreement with another bargaining representative, and that they objected to the disclosure of their confidential details. The company has submitted to the Commission signed statements from eighteen employees to this effect. A redacted copy has been provided to the CFMMEU.

[9] Later that morning, the CFMMEU and BHC attended another meeting, via Zoom. The union reiterated its wish to meet with the other bargaining representatives. BHC refused to facilitate this. That meeting lasted for approximately half an hour and at the end the CFMMEU representatives said that they wanted to report back to their members and requested a further meeting for the following Tuesday. According to the union, BHC representatives said that they would consider this request.

[10] On 12 November 2021, Mr Farrelly sent correspondence to Mr Fishley, in which he reiterated the union’s request for an opportunity to meet with the other bargaining representatives to discuss the agreement. That afternoon, Mr Fishley replied, stating that most of BHC’s employees had chosen to bargain for themselves and had advised BHC that they did not wish to meet to discuss the enterprise agreement; that most of the employees had urged the company to proceed to a vote without delay; that the union’s insistence that the other bargaining representatives attend a bargaining meeting was unreasonable; and that it appeared to him that the union was simply seeking to delay the vote. Mr Fishley also stated that the company intended to proceed with a vote on its proposed agreement on Sunday 21 November 2021.

[11] Mr Farrelly said in his witness statement that between 29 October to 11 November 2021, ‘a number of CFMMEU members’ had communicated to him that they wanted the union to be their bargaining representative and attached to his statement copies of correspondence from six members that are to this effect. These were submitted to the Commission on a confidential basis. Mr Farrelly also said in his statement that he had had conversations with other CFMMEU members who had told him that they were dissatisfied with the way bargaining had occurred but that they were not prepared to appoint the CFMMEU as a bargaining representative out of fear of reprisal from BHC and its management.

[12] According to Mr Farrelly, BHC employees also raised various concerns with him, including the following: employees had not had a genuine opportunity or avenue by which to negotiate the terms of the proposed agreement; there had been no group meeting of non-union bargaining representatives; there had been at most only some ‘workgroup meetings’ but generally meetings between management and employees had been conducted on a two-on-one basis, that is, two BHC management representatives (generally Mr Fishley and another manager) and individual employees; during these meetings, the BHC managers had used ‘tactics’ described to Mr Farrelly by the employees as ‘nasty’, ‘unfair’ and a ‘guilt trip’; employees were told that if they ‘went with the union’, the company would go broke and employees would lose their jobs; employees who wanted to discuss the agreement had been told that negotiations had concluded.

[13] Mr Farrelly also stated that employees had told him that, during bargaining meetings, BHC had presented them with detailed forms relating to a range of bargaining matters and pressured them to sign these forms. Mr Farrelly said that employees were concerned that these forms and the effect of the forms had not been properly explained to them at these meetings and that most employees do not really understand the effect of these documents. Mr Farrelly attached to his statement a pro forma document, which states that the signatory had appointed themselves as a bargaining representative for the agreement, and that if the person was a member of a union, that person was now their own representative instead of the union. The pro forma document stated that on 27 October 2021 the person had received a copy of the proposed agreement, that a vote on the agreement had been scheduled for 5 November 2021, that the agreement had been provided and explained to the person, and that the person did not wish to meet to discuss the agreement with any other bargaining representative and requested an opportunity to vote on it as soon as possible.

[14] Mr Farrelly also said in his statement that he had asked some of the CFMMEU members whether they would be prepared to give evidence to the Commission about the above matters, but none was prepared to do so. Mr Farrelly said that a number of employees had said to him that they were concerned that, if they were identified as ‘pro-union’, they would suffer reprisals.

[15] Mr Farrelly was not required for cross-examination. The company submitted however that I should afford minimal weight to the passages of his evidence which constitute hearsay.

Statutory framework

[16] Section 229(1) of the FW Act allows a bargaining representative for a proposed enterprise agreement to apply to the Commission for a bargaining order. Section 230(1) provides that the Commission may make a bargaining order if the requirements in s 230 have been met. Those requirements are as follows:

•  the employer has agreed to bargain; or a prescribed instrument is in operation (s 230(2)(a)); and

•  one or more of the bargaining representatives have not met, or are not meeting the good faith bargaining requirements (s 230(3)(a)(i)); or the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement (s 230(3)((a)(ii)); and

•  the applicant for the order has complied with the notification requirements in s 229(4), unless the exception in s 229(5) applies (s 230(3)(b)); and

•  the Commission is satisfied that it is reasonable in all the circumstances to make the order (s 230(1)(c)).

[17] A bargaining order must be in accordance with the requirements of s 231, which deals with what a bargaining order must specify (s 230(4)).

[18] Section 228(1) sets out the good faith bargaining requirements. It states:

“(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.”

[19] It is relevant to note that in Construction, Forestry, Mining and Energy Union (Mining and Energy Division) v Tahmoor Coal Pty Ltd (2010) 195 IR 58 a Full Bench considered whether the conduct of a ballot for the approval of a proposed enterprise agreement without the agreement of the other bargaining representatives constituted a breach of the good faith bargaining requirements. At [30] the Full Bench stated:

“Although there may be circumstances in which the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements, it will not always be so. There is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot. In this case the Commissioner and the parties all referred to the notion of “impasse” as the touchstone by which to judge whether an employer who puts a proposed agreement to a ballot without the agreement of the other bargaining agent thereby fails to observe the good faith bargaining requirements. There was some debate about whether “impasse” had been reached at the relevant time. The Commissioner found that “negotiations for an enterprise agreement have reached a stalemate, or using Tahmoor’s words: “an impasse”. Another way of approaching the matter, as the CFMEU intimated in its submissions, might be to ask whether there had been a reasonable opportunity to discuss Tahmoor’s latest proposal. Yet another formulation might be to ask whether negotiations had reached such a stage that the employer was entitled to put its proposal to a ballot in order to see if progress could be made.”

Summary of submissions

[20] The CFMMEU submitted that the Commission should be satisfied that each of the pre-conditions for the making of a bargaining order had been met. It was not in dispute that a valid application had been made, that bargaining had been initiated by the company on 15 October 2021, and that the union had complied with the notification obligation in s 229(4). In respect of the matters that were in the field of contest, the CFMMEU contended that the requirement of s 230(3)(a)(i) had been met, because BHC had not met and was not meeting the good faith bargaining requirements in the following respects.

[21] First, the union contended that the company had not refrained from capricious and unfair conduct that undermines freedom of association or collective bargaining (s 228(1)(e)), because it had orchestrated a process whereby it met with its employees individually in two-on-one meetings and asked them to sign documents removing the CFMMEU as their bargaining representative, in circumstances where it knew that many of those employees were members of the union. It said that it was evident that pressure had been applied to employees to sign instruments of appointment and documents expressing a desire for the agreement to be put to a vote, and that the union had no notice of these matters.

[22] The CFMMEU further contended that the company had failed to convene a bargaining meeting with all of the bargaining representatives jointly and failed to provide to the union relevant contact details for these bargaining representatives. It contended that this too constituted capricious or unfair conduct that undermines collective bargaining. A further dimension of capricious or unfair conduct was said to have been the company’s refusal to convene any further bargaining meetings, despite the fact that some progress had been made in bargaining between the union and the company, and that there was certainly no impasse. It contended that this was not a case where it was legitimate for the employer to take a proposed agreement to a vote over the objection of a bargaining representative, which could only occur in limited circumstances without offending the good faith bargaining requirements.

[23] In addition, the CFMMEU submitted that the company had failed to participate in meetings or give genuine consideration to the proposals of the union, and failed to bargain with the union, in contravention of the good faith bargaining requirements in ss 228(1)(a), (d) and (e) respectively. The union submitted that the company had failed to recognise the union as a bargaining representative until early November 2021, when at all times it must have seemed credible that it was such a representative, given that it is bound by the 2011 Agreement. It said that although the company later recognised the union as a bargaining representative, its past unreasonable failure to do so should be taken into account. The CFMMEU further submitted that the company prematurely terminated the negotiations, despite the progress that had been made, and that it had thereby denied the union the opportunity to discuss outstanding issues, contrary to the requirements of ss 228(1)(a), (d) and (f).

[24] The CFMMEU also contended that the bargaining process was not proceeding efficiently or fairly because there were multiple bargaining representatives for the agreement. In this regard, the union contended that its requests of the company to convene a joint meeting of bargaining representatives had been entirely reasonable in the circumstances, and that without such a meeting bargaining could not be considered either efficient or fair. It said that such meetings were essential in order for there to be a full and frank exchange of views on the terms of the proposed agreement. The CFMMEU contended that the company’s primary reason for not convening a joint meeting appeared to be the number of persons who would be involved, but that it had been the company’s own orchestration or sponsorship of this bargaining model that had produced this situation. In this regard, the CFMMEU said that it was no answer to its concerns that certain individual bargaining representatives had indicated that they did not want to bargain with any other bargaining representatives, because the good faith bargaining requirements demand that bargaining representatives recognise and bargain with one another.

[25] The CFMMEU contended that it was reasonable in all the circumstances for the Commission to make a bargaining order that would require the employer to rectify its non-compliance, and that it would be unjust not to do so, because the company would then enjoy the fruits of its failure to bargain in good faith. The CFMMEU’s proposed order would require the company to refrain from proceeding to put the proposed agreement to a vote, require it to convene at least four bargaining meetings over a period of 28 days, invite all bargaining representatives to each meeting, and refrain from meeting with bargaining representatives other than at joint weekly meetings.

[26] BHC submitted that it had met the good faith bargaining requirements, that bargaining had in fact proceeded efficiently and fairly, and that the requirements for the making of an order were therefore not made out. The company denied that it had placed pressure on employees to become bargaining representatives for themselves, or to sign the documents recording their desire not to bargain further and to proceed to a vote on the proposed agreement. It maintained that it had recognised the CFMMEU once its status as a bargaining representative had been established, and that it had attended meetings and participated in negotiations with the union and all of the other bargaining representatives. It said that its refusal to disclose the personal information of employees could not be considered a contravention of the requirement in s 228(1)(b), because the employees had requested this information not be divulged, and in any event the union would presumably be able to contact and have discussions with its members and had in fact done so. BHC said that there was no requirement for it to continue to negotiate, and that eighteen of the twenty-two employees whom it believed would be covered by the proposed agreement had signed documents confirming that they did not want to bargain further and instead wanted to vote on the agreement. It said that no pressure had been brought to bear on the employees to sign these documents.

Disposition

[27] Section 230(3) of the FW Act requires that in all cases, the Commission must be satisfied that a bargaining representative has not met or is not meeting the good faith bargaining requirements, or that the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement. Power to make an order is contingent on such a state of satisfaction. I am not satisfied as to the existence of either of these circumstances.

[28] First, I am not satisfied that the company has engaged in conduct that is capricious or unfair that undermines freedom of association or collective bargaining. It is necessary, as the union rightly contended, to take into account the broader factual background. In this regard, some seventeen employees signed the CFMMEU petition in September 2021 that sought to initiate bargaining with the company. The petition stated that the CFMMEU ‘is our bargaining representative for all relevant purposes’. However, it is clear that most of the relevant employees have subsequently signed documents appointing themselves as bargaining representatives for the agreement. The union’s contention is that the company adopted a strategy of reorienting the employees away from the union and towards direct negotiations with it. It contends that there is a disconnect between the employees’ initial support for the union and their subsequent agreement to sign the employer’s documents.

[29] I do not see any contradiction in the employees having first signed a union petition that sought to commence bargaining, and then deciding, once the employer had agreed to commence bargaining, that they would bargain for themselves. The group of employees to be covered by the proposed agreement is a relatively small one. There plainly have been discussions directly between the employer and employees. It appears from the union’s evidence that the company believes that an agreement with Melbourne construction sector rates would render it uncompetitive in regional Victoria. It is entirely possible that the company has conveyed this view to employees and that they have found the argument to be persuasive. In my view, the fact that the employees supported the union petition but subsequently bargained directly with their employer is not a circumstance that is suspicious or requiring of an explanation. I would also note that, while the petition document states that the CFMMEU is the employees’ bargaining representative, the principal purpose of the petition was to commence bargaining, whereas the instruments of self-appointment as bargaining representatives were concerned squarely with the identity of the bargaining representative. The latter does not in my view represent any significant pivot. The documents are directed to different ends.

[30] The CFMMEU contended that the company had ‘orchestrated a process’ whereby it met with employees individually and asked employees to sign documents that removed the union as the default bargaining representative, and that one of the documents ‘required’ employees to acknowledge that the agreement had been explained to them, that they did not want to negotiate with other bargaining representatives, that a vote be conducted quickly, and that their identity not be revealed.

[31] I do not see anything sinister in the instrument of appointment or the document requesting that the agreement be put to a vote. The former is a regular and unexceptional instrument of self-appointment as a bargaining representative. It notes that the consequence of a person being their own bargaining representative is that any union of which the employee might be a member is no longer their bargaining representative. This statement, which is also found in the second document, attracted the union’s disapproval. But in my view the statement simply explained to employees a technical point of law in the FW Act. The statement certainly had no separate legal effect. In my view, it was a reasonable thing for the company to explain to employees, many of whom had signed the union’s petition to commence bargaining in September. Employees might otherwise have been confused about whether they or their union would now be the bargaining representative. The second document goes on to state that the signatory does not wish to bargain further and wishes for the agreement to be put to the vote. It is not correct to say, as the CFMMEU did in its submissions, that the employees were ‘required’ to make these acknowledgements, any more than it would be correct to say that employees were ‘required’ to acknowledge that the union was their bargaining representative when they signed the CFMMEU petition. Employees had a choice as to whether to sign either of these documents.

[32] The CFMMEU said that by 1 November 2021, the company knew that many employees were members of the union. It said that the company then prosecuted an agenda to ‘undermine’ employees’ right to be represented by the union, and that in the two-on-one meetings with employees the company sought to pressure and intimidate employees into effectively relinquishing any real bargaining power by signing the documents. If substantiated, this would be a most serious matter which would point to a contravention of the good faith bargaining requirement in s 228(1)(e). But I am not persuaded that this is what occurred.

[33] The union’s case that the employer applied pressure to employees relied on the evidence of Mr Farrelly. Clearly, Mr Farrelly’s evidence about what employees had relayed to him concerning the company’s conduct is hearsay, to the extent that it is adduced to prove the truth of the employees’ statements. It is also hearsay that is unattributed. Further, the recounted statements are vague. For example, it is not known what employees meant when referring to the ‘tactics’ of the company that were allegedly ‘nasty’, ‘unfair’ or that sent them on a ‘guilt trip’. It is not clear from Mr Farrelly’s evidence how many employees are said to have expressed concerns to him. Mr Farrelly attached to his statement correspondence to the union from six employees from late October to early November requesting the union now to act as their bargaining representative. Perhaps these employees are those who expressed concerns to Mr Farrelly. If so, they are a minority. In any event, the alleged concerns of employees are not sufficiently detailed to draw any reliable conclusions. This applies particularly to the general statement that certain unidentified employees told Mr Farrelly that they felt pressured to sign the forms or did not understand them.

[34] Mr Farrelly also said that members had expressed to him a concern that they may be subject to reprisals from the company if they are seen to side with the union. But no basis for such a concern has been established. Based on the evidence before me, even if I were to accept that employees harboured subjective concerns, I cannot identify any objective basis for them. There is no evidence that the employer has made any threat of adverse consequences for employees who support the union. There is no evidence of such action or threats having been taken or made in the past. The union is bound by the 2011 Agreement and evidently has had some presence in the workplace. It has recently assisted its members by collating a petition to commence bargaining. It has been involved, albeit belatedly, in the bargaining for a new agreement. The CFMMEU is also unlikely to tolerate any mistreatment of its members, particularly for reason of union affiliation. In short, I do not see any reason why employees should have concerns about negative reactions from the company because of their support for the union. I would note that the alleged statements by company representatives that an agreement on the union’s terms could see the company become insolvent do not in my view suggest coercion or intimidation. There is no evidence before me that would suggest that such comments should not be taken at face value and be regarded as a statement of financial reality.

[35] The CFMMEU contended that the company had improperly met with members and sought their agreement to alter their representation without notice to the union. But the company did not know which employees were members of the union. Employees could have consulted the union about the document. I do not see anything untoward in this regard. Further, I see no reason to infer, as the union’s case suggests, that a two-on-one meeting between an employee and two managers entails the application of pressure. What of the documents that the company gave to the employees? These were created by the company. No doubt the company wanted employees to sign them. But there is nothing wrong with the company presenting to employees an option that it considers to be a good idea. The union did the same thing when it approached employees with a petition in support of a majority support determination. In both situations, it would have been optimistic to expect employees to navigate the intricacies of the FW Act and prepare, on their own, instruments of self-appointment as bargaining representatives under Division 3 of Part 2-4 of the FW Act on the one hand, or a document to facilitate the collation of evidence of majority support for the commencement of bargaining for an enterprise agreement for the purposes of a majority support determination under s 237 of the FW Act on the other. It is not surprising that the employer and the union respectively would prepare the documents and present them to employees for their consideration.

[36] As to the union’s contention that the company has unreasonably failed to provide it with the details of the individual bargaining representatives, it is the company’s contention that the employees do not want the union to have their personal information. It would seem that each party contends that the employees are on its ‘side’ in relation to the question of bargaining. But no evidence has been led from employees. It appears that many of the employees are members of the union. The CFMMEU should therefore have little difficulty in speaking directly to them. One would expect that the union would already have their contact details. I also note that the union was able successfully to collate the signatures on the petition for the purpose of initiating bargaining. Mr Farrelly has obviously been in touch with a number of members. If, as the union contends, members have expressed concerns to it about the conduct of the company, as well as a desire to continue bargaining, one assumes that the union has been able to advise these members to vote against the approval of the proposed agreement on Sunday.

[37] I do not accept that the company’s refusal to convene a joint bargaining meeting with all of the bargaining representatives constituted capricious or unfair conduct that undermines collective bargaining. I do not perceive any capriciousness or unfairness in this decision. The CFMMEU could have sought to convene its own meetings with individual bargaining representatives. Again, it has members at the workplace, and communicates with those members, who could presumably have invited other representatives to the bargaining meetings. The company does not bear the sole responsibility for running the bargaining negotiations, and there is no rule that meetings must proceed in plenary session. I would add that the union’s proposal to meet jointly may have been an entirely sensible one, but the employer’s decision to decline it and adopt a different course was not in my view a capricious or unfair one. And in any event, I do not consider that such conduct ‘undermines freedom of association or collective bargaining.’

[38] As to the union’s contention that there was no ‘impasse’, I would agree that some progress seems to have been made in the bargaining meetings between the union and the company. I note however that this occurred without the presence of the individual bargaining representatives, which tends to suggest that such joint sessions are not essential, as the union suggested. It is not entirely clear to me whether there was an impasse. On one view there was, because, despite the progress, the company did not want to bargain any more. Perhaps the mere possibility of further discussion regarding a schedule for the agreement was not good enough, and nothing short of an unambiguous commitment to different, regional rates was financially acceptable to the company. Further, on yet another view, there was at least a procedural impasse, because the union wanted joint bargaining sessions and the company did not. In any event, I do not consider that a situation of impasse is necessarily a pre-condition for an employer to put an agreement to the vote without the assent of all relevant bargaining representatives. The position is rather that the preconditions for the making of a bargaining order are those prescribed in the FW Act. And in applying those provisions in the present case, it must after all be remembered that eighteen employees have signed documents stating that they do not wish to bargain further.

[39] I would not regard the company’s earlier failure to recognise the CFMMEU as a bargaining representative as a contravention of the good faith bargaining principles. The company sought evidence of the union’s status as a bargaining representative. That question has now been resolved. I am also not persuaded that the negotiations were prematurely ended in contravention of the requirements of ss 228(1)(a), (d) and (f). Such a conclusion would be inconsistent with the fact that most of the employees who will be covered by the agreement have indicated their support for a vote on the agreement. There was no requirement that the company agree to a further meeting simply because some progress appeared to have been made. Section 228(2) is very clear that there is no requirement to make concessions or reach agreement. Nor would I conclude that the company’s decision to proceed to the vote failed to give genuine consideration to a union proposal. The idea of a schedule to the agreement appears to have been a concept rather than a firm proposal. And again, there was no obligation to make concessions.

[40] Finally, I do not accept the union’s contention that the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement. It appears to me that bargaining has in fact proceeded relatively efficiently and fairly, because there is an agreement that most employees have expressed a wish to vote on. There have also been negotiations between the company and the CFMMEU, although rather limited ones. And it seems to me that the CFMMEU could have initiated its own negotiations directly with those of the individual bargaining representatives that are its members. I do not accept that the company’s refusal to convene joint meetings deprived the CFMMEU of an opportunity to bargain with those representatives, or that it entailed inefficiency or unfairness for the purposes of s 230(3)(a)(ii). There is no principle that bargaining meetings must take place in joint session. Reasonable minds may differ about the appropriate modalities for conducting bargaining meetings.

Conclusion

[41] I am not satisfied that BHC has not met, or is not meeting, the good faith bargaining requirements, or that the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement. The requirement in s 230(3)(a) is therefore not met, and I have no power to make a bargaining order. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

D. Vroland for the Construction, Forestry, Maritime, Mining and Energy Union
S. Amendola for Big Hill Cranes Pty Ltd

Hearing details:

2021
Melbourne
19 November

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