DECISION

Fair Work Act 2009
s.229—Bargaining order

Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch
v
WorkPac Pty Ltd
(B2017/248)

DEPUTY PRESIDENT ASBURY

BRISBANE, 7 APRIL 2017

Application for bargaining order – Alleged failure to meet good faith bargaining requirements – Section 228(1)(f) – Alleged capricious or unfair conduct that undermines freedom of association and collective bargaining – Conduct does not breach good faith bargaining requirements – Application for bargaining order dismissed..

BACKGROUND / OVERVIEW

[1] On 27 March 2017, the Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch (the CFMEU) applied to the Fair Work Commission (the Commission) pursuant to s. 229 of the Fair Work Act 2009 (the Act) for a bargaining order requiring WorkPac Pty Ltd (WorkPac/the Company) to cancel a ballot in relation to a proposed enterprise agreement and meet with the CFMEU and other bargaining representatives to bargain over certain clauses in the proposed agreement. As the ballot subject of the application was initially scheduled to commence on Monday 3 April 2017, the parties were directed to file and serve material urgently and the matter was listed for conference on 31 March 2017 after an earlier date was vacated due to flooding in Brisbane.

[2] During the conference on 31 March 2017 the Commission was also informed that the commencement of the ballot had been deferred until Monday 10 April due to flooding in areas where the Company’s employees work. Notwithstanding the deferral of the ballot, WorkPac indicated that a further meeting of the bargaining representatives would not alter the position of the parties and that it would not participate in such a meeting unless ordered by the Commission to do so. In those circumstances a hearing of the matter was conducted with the agreement of the parties.

[3] Both parties sought to be legally represented and permission was granted on the basis that it would allow the matter to be dealt with more efficiently taking into account the complexity and that there were no issues of fairness between the parties. The CFMEU did not lead evidence and relied on a number of assertions, which were not contested by WorkPac. WorkPac tendered a witness statement of Cameron Hockaday, General Manager Operations and Support Services for the WorkPac Group, who was a representative for the Company’s during the enterprise bargaining process. Mr Hockaday was available at the hearing but was not required for cross-examination.

[4] A number of facts are not in dispute. WorkPac is a large labour provider covering a number of different industries. It has over 3000 employees in the coal industry alone. WorkPac is currently bargaining with employees and the CFMEU for an enterprise agreement (the proposed agreemement) to replace the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 1(the current Agreement). The CFMEU has over 200 members covered by the current Agreement and in respect of the bargaining process for the proposed agreement has received in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v WorkPac Pty Ltd [2017] FWC 1995
Case: [2017] FWC 1995
Decision Date: 7 APRIL 2017

CaseChat Overview and Summary

In this case, the Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch applied to the Fair Work Commission for a bargaining order against WorkPac Pty Ltd. The union alleged that WorkPac had failed to meet its obligations to bargain in good faith and had engaged in conduct that was capricious or unfair, undermining the freedom of association and collective bargaining. The dispute was heard by the Fair Work Commission.

The legal issues before the Commission were whether WorkPac had breached its good faith bargaining obligations and whether it had engaged in conduct that undermined freedom of association and collective bargaining. The union argued that WorkPac had failed to provide relevant information and had not engaged in meaningful discussions. WorkPac, on the other hand, contended that it had met its bargaining obligations and had acted in good faith.

The Commission examined the conduct of WorkPac and found that it had not breached its good faith bargaining obligations. The Commission also concluded that WorkPac's conduct did not undermine freedom of association and collective bargaining. The union's application for a bargaining order was dismissed. The Commission found that WorkPac had provided the necessary information and had engaged in meaningful discussions with the union.

The Fair Work Commission dismissed the union's application for a bargaining order against WorkPac. The Commission found that WorkPac had met its obligations to bargain in good faith and had not engaged in conduct that undermined freedom of association and collective bargaining. This decision highlights the importance of meeting good faith bargaining obligations and engaging in meaningful discussions with trade unions.

Orders