[2018] FWC 3335

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v
Hyne Timber Pty Ltd
(C2018/2978)

COMMISSIONER CIRKOVIC

MELBOURNE, 7 JUNE 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

Introduction

[1] On 1 June 2018 the Construction, Forestry, Maritime, Mining and Energy Union (“the Applicant”) lodged an application for the Fair Work Commission (“the Commission”) to deal with a dispute under s.739 of the Fair Work Act (“the Act”). The application concerned a dispute with Hyne Timber Pty Ltd (“the Respondent”) arising under the Hyne Timber Tumbarumba Enterprise Agreement 2015 (“the Agreement”).

[2] On 4 June 2018 this matter was allocated to my chambers. On that same day the Applicant communicated with my associate and requested that the matter be urgently listed. The Applicant expressed concern that the Respondent intended to proceed with a ballot regarding a new enterprise agreement on 7 June 2018.

[3] I conducted a conference between the parties on 5 June 2018 to determine whether an agreement could be reached between the parties. A resolution was not achieved and the Applicant requested that the matter proceed to hearing as it intended to apply for an interim order under s.589 of the Act. On that same day I issued directions and listed the matter for hearing on 6 June 2018. I directed the Applicant to file a draft version of the interim order that was being sought by 5PM that day. I further directed both parties to file any written submissions before 9AM on 6 June 2018.

[4] At the hearing Mr E White of Counsel sought permission to appear on behalf of the Applicant under s.596 of the Act. Mr D Bates of Harmers Workplace Lawyers sought permission to appear on behalf of the Respondent under the same provision. I granted permission to both parties.

[5] The Applicant sought the following order:

1. The Respondent, Hyne Timber Pty Ltd, take no further steps to negotiate, and no further steps to seek employee approval of, an enterprise agreement to replace the Hyne Timber Tumbarumba Enterprise Agreement 2015 until the hearing and determination of the dispute.

2. On or before 19 June 2018 the Applicant file in the Commission and serve on the Respondent an outline of submissions and any witness statements and documents on which it seeks to rely.

3. On or before 3 July 2018 the Respondent file in the Commission and serve on the Applicant an outline of submissions and any witness statements and documents upon which it intends to rely.

4. That the matter be listed for hearing with an estimate of two days.

[6] The Respondent objected to the order being issued in its entirety.

[7] Upon the conclusion of closing submissions, I adjourned the hearing for one hour. Upon the Commission resuming, I issued my decision. I dismissed the Applicant’s application for an interim order. Apart from observing that the Applicant had not persuaded me that a prima facie case existed, I reserved the reasons for my decision. My reasons are now set out below:

Jurisdiction

[8] I first must determine whether the Commission has jurisdiction to hear and determine the dispute.

[9] There is no contest between the parties that the Commission has jurisdiction to determine this matter.

[10] Having regard to the relevant terms of the Agreement, I am satisfied that the jurisdiction of the Commission is properly invoked.

The application for an interim decision

[11] Section 589 of the Act provides as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.”

The principles to be applied to an interim decision

[12] The principles relevant to the making of interim orders are well established. 1 In summary, the Commission must determine if there is a serious issue to be determined and where the balance of convenience lies, having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.2

[13] In Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd, 3 Gooley DP made the following comments when dealing with an application for interim orders:

“[5] The AMWU submitted that in deciding whether to issue an interim order, the Commission must determine if there is a serious issue to be tried and balance of convenience.

[6] These principles were discussed by Bromberg J in Quinn v Overland where His Honour said:

“[45] In determining an application for interlocutory relief, the Court addresses two main inquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted: Australian Broadcasting Corp v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], [19].

[46] The requirement of a “prima facie case” does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the applicant asserts and the practical consequences likely to flow from the order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of the probability: Australian Broadcasting Corp v O’Neill per Gummow and Hayne JJ at [65]-[72], Gleeson CJ and Crennan J agreeing at [19].”

[7] S.589(2) of the Fair Work Act 2009 gives the Commission power to make an interim decision. S.598(4) of the Act provides that a decision that is described as an order must be made by order. An example is given in a note and it refers to a decision that is described as a bargaining order.”

[14] I have adopted an approach consistent with the above decisions.

Serious issue to be determined

[15] In support of its position that there is a serious issue to be determined in this matter, the Applicant provides two primary reasons. First, in bargaining for a new enterprise agreement (“the proposed agreement”), the Respondent has not complied with its procedural obligations under the Agreement. 4 Secondly, the Respondent has engaged in misleading and deceptive conduct during the bargaining process. The Respondent denies both assertions made by the Applicant.

[16] In coming to my conclusion, I have considered the entirety of the written and oral submissions of both the Applicant and the Respondent. I note that the parties did not seek to adduce any witness evidence.

Failure to comply with good faith bargaining obligations

[17] The Applicant submits that the Respondent has acted in contravention of this clause 1.4.3 of the Agreement, which provides as follows:

“The aim of those discussions will be to bargain in good faith in order to reach a new Agreement prior to the nominal expiry date of this Agreement.” (emphasis added)

[18] The Applicant submitted that interpretation of “to bargain in good faith” should be made with reference to the good faith bargaining requirements contained in s.228 of the Act. I accept this submission.

[19] In support of this submission, the Applicant makes the following assertions:

• union delegates were precluded from attending all consultation meetings other than the one they were directed to attend as employees;

• in doing so, the Respondent was in breach of the provisions contained under clause 30 of the Agreement.

[20] In response to a question from the Commission as to the existence of any written evidence concerning the above assertions, the following exchanges took place between the counsel for the Applicant and the Commission:

“MR WHITE: Yes. We take issue with the proposition that delegates were able to attend each meeting. My instructions are the delegates be invited to the meeting relevant to them as an employee only. That is, their own allocated briefing session and my instructions are further that the union specifically sought that delegates and Mr Dusty be able to attend all the sessions and that that was denied. They’re my instructions.

THE COMMISSIONER: Was that in writing?

MR WHITE: Yes, I’ve got those instructions in writing.

THE COMMISSIONER: No, was the request made in writing?

MR WHITE: Sorry, I’ve given – well, I don’t know. I can find that out but - - -

THE COMMISSIONER: Well, while Mr Bates continues with his submission, perhaps you could find out from Mr Malbasa and - - -” 5

[21] And then later during the hearing:

“THE COMMISSIONER: They’re two issues that I did note. You were going to speak to Mr Malbasa about whether or not the preclusion of delegates was, indeed, something that was put in writing because - - -

MR WHITE: He sought but not obtained instructions as to whether or not that request was in writing.

THE COMMISSIONER: What do you mean sought and?

MR WHITE: Not obtained yet about whether or not the request that delegates attend each of the 23 meetings.” 6

[22] The Applicant’s NSW District Organiser, Mr Dusty, stated the following in an e-mail to the Respondent dated 22 May 2018:

“We understand you are ‘hard bargaining’ and whilst this may not offend the Fair Work Act good faith bargaining obligations, we are nonetheless of the view that you should approach the bargaining process in a constructive manner and give genuine consideration to the offer we have made.” (emphasis added)

[23] The Respondent objected to the allegations made by the Applicant. The Respondent submits that it engaged in bargaining at all times in good faith and invited delegates to attend meetings.

[24] The parties produced a number of written communications that were exchanged between them from as early as April 2018. There is little contest between them as to the chronology of the events and that a section 240 application was initiated and heard before Commissioner McKenna that resulted in two conferences before her. I have reviewed the written material and having done so I agree with Mr Dusty’s characterisation of what has occurred as “hard bargaining”. On the material before me I am unable to conclude that the Applicant has established a prima facie case with respect to the Respondent being in breach of its bargaining obligations.

Misleading and deceptive conduct

[25] The Applicant submits that the Respondent engaged in misleading and deceptive conduct in relation to information it provided to employees with respect to the role of union delegates under the proposed agreement. 7 The Applicant submits that clauses from the Agreement protecting the rights of union delegates were not included in the proposed agreement. The Respondent accepts that these clauses are not contained in the proposed agreement.

[26] In support of this argument the Applicant relies on a ‘Question and Answer’ document produced by the Respondent and circulated to its employees. The Applicant cited part 12 of this document as a key example of the Respondent’s misleading and deceptive conduct. 8 This part of the document in reproduced below:

“12. Are there any changes to the union delegate role?

ANSWER: The union delegate role is protected by Law, we haven’t made any changes to this.” 9

[27] The Respondent denies the allegations.

[28] The Applicant further submits that the Respondent had engaged in misleading and deceptive conduct by describing the party responsible for conducting the ballot, IRIQ Law, as “independent”. Reproduced below is communication from the Respondent to its employees:

“The balloting service is provided by an independent third party, IRIQ Pty Ltd.” 10 (emphasis added)

“An independent organisation is running the ballot. They guarantee your privacy. You can visit “ 11 (emphasis added)

[29] In support of this submission, the Applicant sought to rely on two notices of listings where IRIQ Law had previously acted on the Respondent’s behalf. 12

[30] The Respondent submitted that IRIQ Law was one of four law firms the Company had retained over the past six months with respect to employment related matters. 13 The Respondent submitted that IRIQ “insofar as it is a law firm, it is, of course, bound by all the usual rules in relation to a law firm.”14 On this basis the Respondent rejected any claim that the labelling of the firm as being independent was inaccurate.

[31] The fact that IRIQ Law has acted for the Respondent in other matters is not an adequate reason to sustain a conclusion that the Respondent prima facie engaged in misleading and deceptive conduct by labelling them as “independent”.

[32] I do not accept the Applicant’s submissions with respect to its claim of misleading and deceptive conduct. Consequently there is no serious issue to be determined.

Balance of convenience

[33] The Applicant submits that the balance of convenience favours the issuing of an order because if the ballot were successful, the Respondent’s alleged lack of compliance with the Agreement “can’t be remedied.” 15

[34] The Respondent submitted that the balance of convenience favoured the dismissal of the interim order because the ballot had been organised and “everything is in place for that ballot to proceed.” 16 The Respondent submitted that it would be inconvenienced by the delay of the ballot because it would lose the ability to run an efficient bargaining process.17

Conclusion

[35] I have taken into account the Applicant’s submission that a successful ballot would leave the Applicant with different remedies available to it than it would have if the status quo was preserved. Given the lack of the existence of a serious issue to be determined, I have decided as a matter of discretion to dismiss the application for an interim order.

COMMISSIONER

Appearances:

Mr E White of Counsel, for the Applicant

Mr D Bates of Harmers Workplace Lawyers, for the Respondent

Hearing details:

2018

6 June

Melbourne

Sydney (via video conference).

Final written submissions:

Outline of Written Submissions on behalf of the Applicant

Respondent’s Outline of Submissions

Printed by authority of the Commonwealth Government Printer

1 Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd[2016] FWC 2260, (2016) 258 IR 12, citing Quinn v Overland [2010] FCA 799.

2 Bayly [2017] FWC 1886.

3 [2016] FWC 2260, (2016) 258 IR 12.

4 Outline of Written Submissions on behalf of the Applicant, [14].

5 Transcript of Proceedings, PN652 – PN657.

6 Ibid PN796 – PN799.

7 Outline of Written Submissions on behalf of the Applicant, [19].

8 Transcript of Proceedings, PN819.

9 Exhibit A5.

10 Exhibit A3.

11 Exhibit A9.

12 Exhibit A6 and Exhibit A7.

13 Transcript of Proceedings, PN714.

14 Ibid.

15 Ibid PN292.

16 Ibid PN725.

17 Ibid PN736.

Construction, Forestry, Maritime, Mining and Energy Union v Hyne Timber Pty Ltd