Construction, Forestry, Maritime, Mining and Energy Union-Victoria Branch v Hyne & Son Pty Ltd T/A Hyne Timber
[2018] FWC 4318
•23 JULY 2018
| [2018] FWC 4318 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.229—Bargaining order
Construction, Forestry, Maritime, Mining and Energy Union-Victoria Branch
v
Hyne & Son Pty Ltd T/A Hyne Timber
(B2018/557)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 23 JULY 2018 |
Application for a bargaining order
[1] On 6 July 2018 the Construction, Forestry, Maritime, Mining and Energy Union-Victoria Branch (CFMMEU) made an application for a bargaining order under s.229 of the Fair Work Act 2009 (the Act) against Hyne & Son Pty Ltd T/A Hyne Timber (the Respondent).
[2] The application arises in the context of bargaining between these parties for an enterprise agreement to replace the Hyne Timber Tumbarumba Enterprise Agreement 2015 1(the current Agreement) which has a nominal expiry date of 9 September 2018. Attached to the application was a copy of letter sent by CFMMEU to the Respondent on 3 July 2018. Among other things the letter included the following:
“2. We hereby provide you and Hyne Timber notice pursuant to s 229(3) of the FW Act that we have concerns that you [Mr David Bates – the Respondent’s bargaining representative] and Hyne Timber are failing to comply with the good faith bargaining requirements stipulated by s 228(1)(a), (e) and (f) of the FW Act …
15. We therefore hereby put you on fair notice that unless the above concerns are addressed by 10AM Friday 6 July 2018, we will make an application to the Fair Work Commission and seek orders against Hyne Timber and yourself pursuant to s 231 of the FW Act.”
[3] The matter was listed for mention and directions before the Fair Work Commission (the Commission) on 20 July 2018. At that hearing Mr Danijel Malbasa appeared for the CFMMEU and Mr Bates appeared for the Respondent together with Ms Alison Newman and Mr Mike Madden.
[4] In its application the CFMMEU contended that following the rejection by employees in early June 2018 of a proposed agreement the Respondent has refused to attend and participate in meetings with it as required by s.228(1)(a) of the Act and also did not recognise and bargain with it as required by s.228(1)(f) of the Act. The CFFMEU further contended the Respondent had also engaged in capricious conduct which undermined freedom of association and/or collective bargaining by:
• engaging in actions that assert it cannot be forced to meet with the CFMMEU;
• telling employees that bargaining has ceased;
• representing that any further attempt to bargain would be an exercise in futility; and
• implying to employees that their exercise of their workplace right to vote down the proposed agreement had consequences and they should take responsibility for their actions and learn from their mistakes.
[5] At the hearing the CFMMEU outlined the background to the application, submitting that:
• the Respondent initiated bargaining for a replacement agreement in mid-April 2018;
• a proposed agreement issued by the Respondent was voted down by employees in early June 2018; and
• the Respondent had subsequently advised that it no longer wished to bargain for a replacement agreement.
[6] The Respondent submitted inter alia that while it would continue to recognise the CFMMEU as a bargaining representative for employees it did not intend to meet with the CFMMEU unless directed to do so by the Commission. Against that background, the Respondent suggested that the Commission short circuit the process and avoid the need for a hearing regarding the application by making a bargaining order. The Respondent further submitted that its preference would be not to have any further discussions with the CFMMEU but it understood that its good faith bargaining obligations compelled it to do so. In response to a question from the Commission, the Respondent confirmed that it did not object to a bargaining order being made.
The Relevant Legislation
[7] Section 228 of the Act sets out the good faith bargaining requirements that a bargaining representative for an enterprise agreement must meet. Specifically, s.228 provides that:
“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.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”
[8] Section 229 then deals with the prerequisites that must exist before an application for a bargaining order can be made. The critical requirements are set out in sub section (4). It states in full:
“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.
Note: See also section 255A (limitations relating to greenfields agreements).
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.
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; an
(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).”
[9] Section 231 then deals with what must be specified in a bargaining order. It 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) …”
Consideration
[10] Firstly I note that it is not disputed that the CFMMEU is a bargaining representative for the replacement enterprise agreement and therefore satisfies the requirement set out at s.229(1) of the Act regarding who may make an application for a bargaining order. Further, I am satisfied that the requirements set out in ss.229(3)(a)(ii) and (4) of the Act are satisfied in this case, the latter as a result of the letter sent by CFMMEU to the Respondent on 3 July 2018 (see paragraph [2] above].
[11] I turn now to consider the requirements set out in s.230 of the Act.
[12] First, an application for a bargaining order has been made by the CFMMEU as required by s.230(1)(a). Second, it is not disputed that the Respondent agreed to bargain for a replacement agreement in mid-April 2018, so s.239(2)(a) is satisfied. Third, s.230(2)(b)-(d) of the Act are not relevant in this case. Fourth, I am satisfied that the Respondent in declining to attend and participate in meetings with the CFMMEU in the absence of being directed to do so by the Commission is not meeting its good faith bargaining obligations under the Act. As such, s.230(3)(a) of the Act is satisfied. Finally, as indicated above, I am satisfied that the requirements in s.229(4) of the Act are satisfied as required by s.230(3)(b).
[13] In summary, I am satisfied that the requirement set out in s.230 of the Act are met in respect of the agreement as required by s.230(1)(b) of the Act.
[14] Lastly, in circumstances where the Respondent stated at the hearing on 20 July 2018 that it does not intend to meet with the CFMMEU unless directed to do so by the Commission and confirmed that it did not object to a bargaining order being made in this case, I am satisfied that it is reasonable in all the circumstances to make an order.
[15] As to the terms of the order, in its application the CFMMEU sought an order which required the Respondent to take the following actions:
1. recognise the CFMMEU as a bargaining representative for a new agreements.
2. meet with the CFFMEU and participate in a bargaining meeting with it, with the time and location of such meeting to be agreed between the parties;
3. after the abovementioned initial meeting, meet and participate in bargaining meetings with the CFMMEU at least once per fortnight unless otherwise agreed;
4. remove from the Tumbarumba plant all documents relating to resignation from any union and withdraw from distribution all documents relating to resignation from any union;
5. remove all posters and other documents from the Tumbarumba plant that assert, whether explicitly or by necessary implication, that the Respondent cannot be forced to meet with the CFMMEU, bargaining has ceased, any further attempt to bargain would be an exercise in futility and employees’ exercise of their workplace right to vote down the proposed agreement had consequences and they should take responsibility for their actions and learn from their mistakes; and
6. provide to all employees correspondence in the following terms and also display the correspondence in all lunchrooms, crib rooms and other areas of the plant in a prominent position a document containing the following:
Hyne Timber have been taken to the Fair Work Commission by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The CFMMEU alleged that Hyne Timber were in breach of the Fair Work Act 2009 (Cth) by failing to comply with its good faith bargaining obligations. The Commission determined that Hyne Timber had breached their good faith bargaining obligations under the Fair Work Act and made orders against Hyne Timber. One of those orders was to provide this document to all employees and display it around the Tumbarumba Timber Mills.
Hyne Timber has agreed to bargain and/or initiated bargaining for a new enterprise agreement. Hyne Timber having commenced bargaining is unable to withdraw from bargaining. To the extent Hyne Timber purported to cease bargaining after employees voted down its proposed agreement on 7-8 June, Hyne Timber acted contrary to the Fair Work. To the extent Hyne Timber told you that it had ceased or was able to cease bargaining, it was in error.
Hyne Timber also said that it could not be forced to recognise and bargain with the CFMMEU. The Commission has ordered Hyne Timber to recognise and bargain with the CFMMEU. To the extent Hyne Timber told you that it was not required to recognise and bargain with the CFMMEU, it was in error. Hyne Timber is required by the Fair Work Act to recognise and bargain with the CFMMEU.
Hyne Timber has also been directed to withdraw from publication and distribution documents that encourage or facilitate employees leaving the CFMMEU, or any other union of which they are members. Hyne Timber has no business in determining whether or not its employees are union members and has been ordered by the Commission to cease engaging in conduct that has the potential to induce employees to resign from a trade union.
Should you have any questions about this, please do not hesitate to contact your union official or a human resources manager.”
[16] As previously mentioned, at the hearing the Respondent stated that it would continue to recognise the CFMMEU as a bargaining representative for employees. Further, the Respondent submitted that it had already removed from the plant the material referred to in items 4 and 5 of the CFMMEU’s proposed orders. Against that background, I propose to make an order requiring the parties to:
(i) meet on 3 August 2018 to recommence discussions for a replacement agreement; and
(ii) agree on a program of further meetings for that purpose and the issues to be discussed at those meetings.
[17] Whether the meeting on 3 August 2018 is a face-to-face meeting or alternatively occurs by way of telephone (or some other means) is a matter for the parties to determine given that Mr Bates is based in Canberra which is several hours drive from the plant. An order in the above terms will be issued in conjunction with this decision.
Conclusion
[18] For the reasons outlined above, I am satisfied that the requirements in s.230 of the Act are met and that it is reasonable in all the circumstances to make a bargaining order. An order requiring the parties to meet on 3 August 2018 and agree on a program of meetings to further discuss an agreement to replace the current Agreement and the issues to be discussed at those further meetings will be issued in conjunction with this decision.
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