Construction, Forestry, Maritime, Mining and Energy Union v Geofabrics Australasia Pty Ltd T/A Geofabrics Australasia
[2018] FWC 7643
•17 DECEMBER 2018
| [2018] FWC 7643 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
Construction, Forestry, Maritime, Mining and Energy Union
v
Geofabrics Australasia Pty Ltd T/A Geofabrics Australasia
(B2018/1194)
COMMISSIONER HUNT | BRISBANE, 17 DECEMBER 2018 |
Application for bargaining order – alleged failure to meet good faith bargaining requirements – s.228(1)(a) – (f) – alleged threat to reduce pay if proposed enterprise agreement not approved at forthcoming ballot – bargaining order issued.
[1] The Construction, Forestry, Maritime, Mining and Energy Union of Australia (CFMMEU) has applied under s.229 of the Fair Work Act 2009 (the Act) for a bargaining order against Geofabrics Australasia Pty Ltd T/A Geofabrics Australasia (Geofabrics). Geofabrics
[2] Since May 2018 the parties in this matter have been involved in bargaining negotiations for an enterprise agreement proposed to replace the Geofabrics Australasia Pty Ltd (South Queensland Manufacturing) Enterprise Agreement 2015 (the Agreement).
[3] In the course of those negotiations and on 9 July 2018, Mr Howard Yen, General Manager Manufacturing for Geofabrics sent an email to Mr Anthony Hack, Organiser for the CFMMEU and to Mr Ricky Luke, Organiser for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the “Australian Manufacturing Workers’ Union” (AMWU), which stated:
“Gents,
As a sign of good faith, Geofabrics proposes to make a 2% incremental pay increase starting 1 July 2018. If the EA negotiations result in a different outcome then a pay adjustment either up or down will be made, backdated to the 1st July 2018.
This will be enacted in this weeks [sic] pay run and include a backpay for the 2 days last week (2nd and 3rd July) which were paid at the old rate.
I hope you both find this acceptable and we will inform all employees of this decision…”
[4] In the course of further negotiations, the parties agreed to put a proposed enterprise agreement to a ballot on 18 December 2018. I understand that the ballot will proceed on 18 December 2018.
[5] On 13 December 2018 Mr Paris Dean, National Legal Officer of the CFMMEU, sent an email to Mr Yen referring to the 2% increase made to employee wages by Geofabrics. Mr Dean stated that the CFMMEU understood that Mr Yen had indicated to Geofabrics employees within the scope of the proposed agreement and entitled to vote on the proposed agreement that ‘in the event the proposed agreement was voted down next week, their wages would be cut by 2%’.
[6] Mr Dean indicated to Mr Yen that the CFMMEU required that he circulate to all relevant staff a statement referring to Mr Yen’s previous comments of 9 July 2018 and confirming that wages would not be cut if the proposed agreement were voted down.
[7] On 14 December 2018, Mr Yen responded to Mr Dean, Mr Hack and Mr Luke. Mr Yen denied that he had ever stated that ‘…anyone’s wages would be cut by 2%...’ Mr Yen clarified that he had highlighted to employees of Geofabrics on 13 December 2018 the financial position of Geofabrics and had said words to the effect that he ‘…would have to give consideration to withdrawing this payment in order to preserve cash until such time as an agreement is made’. Mr Yen stated that he had not threatened employees by his statements.
[8] The order sought by the CFMMEU would prevent Geofabrics from proceeding to ballot the proposed agreement on 18 December 2018, and from unilaterally reducing wages paid until a final order were made requiring Geofabrics to withdraw ‘offending statements’ prior to the commencement of any access period and requiring Geofabrics to meet with the CFMMEU on terms proposed for the purpose of advancing negotiations.
[9] This matter was listed for hearing on Monday, 17 December 2018. Prior to the listed hearing of this matter the parties wrote to my chambers indicating that the matters in issue in this matter could be resolved if an order were issued to the following effect:
‘Geofabrics Australasia Pty Ltd will not reduce the wages payable to any employee such that they are lower than the level presently paid until the conclusion of bargaining in respect of an agreement to replace the presently applicable enterprise agreement.’
[10] On 17 December 2018 I wrote to the parties noting that the parties had indicated that this matter could be resolved if an order in the terms proposed was issued. I indicated that the order could be made as an interim order. I opined that the listed hearing of this matter would not be required if an order in the terms proposed was consented to.
[11] Mr Yen corresponded with my chambers to confirm that Geofabrics consents to the proposed interim order.
[12] Section 230 of the Act details when the Commission may make a bargaining order:
“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.
Note: See also section 255A (limitations relating to greenfields agreements).
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).”
[13] While s.230 of the Act is a discretionary consideration, s.230(3) requires that the Commission must 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.”
[14] Section 230(4) of the Act requires the bargaining order to be in accordance with s.231.
[15] Section 231 of the Act sets out the matters that a bargaining order must specify, and states:
“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 the FWC 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 the FWC 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 the FWC 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 the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.”
Consideration
[16] Having regard to s.230(3) of the Act, on a consent and interim basis, I am satisfied that Geofabrics, being a bargaining representative for the proposed agreement has not met, or is not meeting the good faith bargaining requirements required in the Act. Further, I am satisfied that the CFMMEU has complied with the requirements of subsection 229(4) to notify Geofabrics of its concerns.
[17] I will issue an interim order to the following effect:
A. Geofabrics Australasia Pty Ltd T/A Geofabrics Australasia (Geofabrics) will not reduce the wage rate payable to any employee such that those wage rates are lower than the wage rate presently paid until the conclusion of bargaining in respect of an enterprise agreement to replace the presently applicable agreement, being the Geofabrics Australasia Pty Ltd (South Queensland Manufacturing) Enterprise Agreement 2015 (the Agreement)
B. The obligations of this Interim Order at paragraph A must be met without any additional words or commentary in or immediately preceding or immediately following the obligation at paragraph A which might detract from the importance of the Order.
[18] The interim order will come into effect from today’s date.
COMMISSIONER
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