Construction, Forestry, Mining and Energy Union v AGL Loy Yang Pty Ltd

[2016] FWC 3376

[2016] FWC 3376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Construction, Forestry, Mining and Energy Union
v
AGL Loy Yang Pty Ltd
(B2016/61)

COMMISSIONER GREGORY MELBOURNE, 2 JUNE 2016

Application for a bargaining order.

Introduction

[1] AGL Loy Yang Pty Ltd (“AGL”) has been negotiating with various Unions and, in more recent times, other individual bargaining representatives to put in place a new enterprise agreement. The existing Loy Yang Power Enterprise Agreement 2012 1has a nominal expiry date of 31 December 2015. A number of bargaining meetings have taken place since the negotiations commenced in the middle of last year. However, for a variety of reasons little or no bargaining has occurred in the last three months.

[2] In November last year AGL put a proposed Agreement to a vote of employees, but it was rejected by approximately 80% of those who participated in the ballot. In more recent times six additional individual bargaining representatives have also been appointed.

[3] The Construction, Forestry, Mining and Energy Union (“the CFMEU”) is one of the Union bargaining representatives in respect of the proposed Agreement. It has now made application under s.229 of the Fair Work Act 2009 (Cth) (“the Act”) for various bargaining orders because it submits AGL has not been bargaining in good faith. The application is opposed by AGL. This decision deals with that application.

[4] The submissions and evidence provided by both parties are detailed, and deal at length with what has occurred since July last year. However, I have sought to confine the references in this decision to the submissions and evidence I consider relevant to the determination of the application.

[5] Mr A. Bukarica appeared on behalf of the CFMEU. Mr C. O’Grady QC appeared with Mr B. Avallone, and was granted permission to appear under s.596(2)(a) as the matter involves a degree of complexity and his involvement would enable it to be dealt with more effectively.

The Relevant Legislation

[6] The relevant legislative provisions are set out below. In summary, s.228 sets out what the relevant good faith bargaining requirements are. It continues to indicate in sub-section (2) what they do not require. Section 229 deals with the prerequisites that must exist, before an application can be made.

[7] Section 230 continues to deal with when it is appropriate for the Commission to exercise the discretion to make bargaining orders. It includes a requirement that it is reasonable in all the circumstances to make the order. Section 231 then sets out the kind of bargaining orders the Commission may make, and what any order must specify. Section 232 concludes by dealing with the operation of any order made. The relevant provisions are as follows:

“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.

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; 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).

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.

232 Operation of a bargaining order

A bargaining order in relation to a proposed enterprise agreement:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earliest of the following:

(i) if the order is revoked—the time specified in the instrument of revocation;

(ii) when the agreement is approved by the FWC;

(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.

Note: See also section 255A (limitations relating to greenfields agreements).” 2

The Evidence and Submissions

[8] The CFMEU relies, in particular, on the evidence contained in three witness statements provided by Mr Geoff Dyke, filed on 8 and 22 April, and 11 May 2016. It submits his evidence confirms the CFMEU has met each of the relevant statutory pre-requisites in ss.229 and 230. It continues to submit it has repeatedly expressed its concerns in writing to AGL that it is not meeting, or has not met, its good faith bargaining obligations. While it does acknowledge AGL has responded, on occasions, to some of these concerns, it submits it has not responded appropriately.

[9] The CFMEU has also provided draft orders. The first deals with what it describes as “reasonable meeting times” and, in its submission, sets out a “common sense” framework for a fair and reasonable meeting schedule, which it describes as straightforward and “mundane” in terms of what is proposed. It also submits it will not conflict with a separate s.240 process, initiated by an application made by AGL. 3 In this context the CFMEU submits the Commission has only limited resources to assist through the mechanism of the s.240 application, and its orders will complement that process by facilitating bargaining directly between the parties.

[10] It continues to submit this is consistent with what s.228(a) requires, and intends to remedy the refusal of AGL to meet with the bargaining representatives at reasonable times, given there has been limited engagement in actual bargaining since AGL’s proposed Agreement was rejected by a vote of employees in December last year.

[11] It also submits the rationale for AGL’s refusal to meet with the bargaining representatives has shifted in recent times. It, firstly, indicated a preference for facilitated negotiations, but then relied upon the appointment of several employee bargaining representatives as justification for deferring bargaining meetings with the CFMEU, and the other Union bargaining representatives. In more recent times it has relied on the fact it is waiting on directions from the Commission in response to its s.240 application, made in early April 2016, as justification to defer a scheduled meeting with bargaining representatives on 12 April 2016.

[12] The CFMEU submits this is unacceptable, and the obligation in s.228(a) is “straightforward and readily intelligible,” and predicated on “actually meeting.” 4 In its submission “the indefinite deferral of bargaining (except possibly with the mutual consent of the parties) is inconsistent with the obligation to meet at reasonable times,”5 and AGL has imposed unacceptable conditions on how and when it will meet. In this context it relies, in particular, on attachments GD44 and GD52 to Mr Dyke’s original witness statement.

[13] The CFMEU submits the upshot of all of this is that there has not been a meeting between AGL and the bargaining representatives since 22 February 2016, in circumstances where the CFMEU has proposed 17 meeting dates in that time. It submits its draft Order accordingly intends to enable negotiations to take place in a fair and reasonable manner.

[14] Its second draft Order deals with recognition of bargaining representatives. The CFMEU submits this intends that AGL properly recognise the operation of the single bargaining unit, including the employee bargaining representatives at the power station and mine, and seeks to ensure conduct consistent with the good faith obligations in s.228(f).

[15] In its submission the Order will give effect to the desire of all bargaining representatives to be recognised as a single bargaining unit, which has been the accepted manner in which the employee bargaining representatives have bargained since bargaining commenced last year. It submits any refusal to accept the on-going operation of the single bargaining unit is inconsistent with s.229(f), and deals with any concerns about avoiding unmanageable bargaining in s.230(4)(a)(ii) of the Act.

[16] It also submits the attempts by AGL to meet separately with the employee appointed bargaining representatives, referred to in attachments GD 50, 52, and 54 to Mr Dyke’s original witness statement, are not consistent with an efficient approach to bargaining in circumstances where the employee bargaining representatives have indicated a desire to be part of the single bargaining unit. It also submits it reflects the practice in place until the recent appointment of those employee bargaining representatives.

[17] The third of the draft Orders deals with genuine consideration of bargaining proposals and seeks to impose an obligation on AGL to consider and respond to the CFMEU’s bargaining proposals in a manner consistent with s.228(c) and (d). The CFMEU submits AGL has not given genuine consideration to proposals tabled by the single bargaining unit in October and December last year. It also submits that since it put its proposed Agreement to a vote of employees AGL has not been prepared to consider, in any realistic way, the claims of the employee bargaining representatives.

[18] It submits instead that AGL is embarking on an approach designed to demonstrate bargaining “has failed or reached an impasse.” 6 It submits the draft Order intends, in response, to require AGL to provide a reasoned and comprehensive response to the compromise bargaining claims provided by the bargaining representatives on 23 December last year.

[19] The final Order seeks to constrain AGL from what it describes as “capricious or unfair conduct.” 7 The CFMEU submits AGL has at various times sought to engage in direct communication with its employees in an attempt to bypass the legally appointed bargaining representatives, and the Order seeks to have it act in accordance with the obligations contained in s.228(e).

[20] It submits these concerns were first raised in August last year, and then again in October. In this context it refers to attachments GD8, GD17 and GD18 to Mr Dyke’s original witness statement, and submits AGL’s approach impinges on collective bargaining by undermining the status and authority of the employee bargaining representatives. The Order seeks to stop these actions, and to “ensure that the needless distraction caused by the company’s (patently futile) efforts to by-pass employee bargaining representatives will cease. This will in turn allow the bargaining representatives to concentrate their efforts on negotiating a mutually acceptable enterprise agreement.” 8

[21] As indicated, Mr Dyke provided three separate witness statements in support of the application, dated 8 April, 24 April and 11 May 2016. He is the Secretary of the Victorian District Branch of the Mining and Energy Division of the CFMEU, and his evidence confirms the CFMEU is a bargaining representative for employees of AGL employed at both the Loy Yang A power station, and its associated open cut brown coal mine.

[22] He indicated that on 2 July last year Mr Michael Clinch, the Group Employee Relations Manager for AGL, wrote to the CFMEU District Branch President seeking a meeting later that month to establish the bargaining process for a new enterprise agreement. The CFMEU responded by indicating it was not interested in commencing bargaining this far in advance of the nominal expiry date of the existing Agreement.

[23] He said the Union subsequently wrote to the Mr Stephen Rieniets, the General Manager, AGL Loy Yang, on 28 September 2015 indicating it wished to commence bargaining, and on 16 October it attended a bargaining meeting for the first time, in conjunction with the other Union bargaining representatives. It then provided its claims in regard to the new Agreement to AGL on 28 October 2015. He said the Union then sent further correspondence to AGL indicating that by communicating directly to employees it was seeking to bypass the bargaining representatives.

[24] Mr Dyke said on 12 November 2015 AGL advised the Unions it had decided to put a draft Agreement to a vote of its employees, however, this was rejected on 3 December 2015 by more than 80% of the employees who participated in the ballot.

[25] On 6 December 2015 the CFMEU sought a further meeting with AGL and bargaining resumed on 14 December 2015 against the background of claim and counter claim about whether the parties had bargained in good faith. On 23 December 2015 the single bargaining unit presented a compromise proposal, however, at the same time AGL tabled what Mr Dyke described as “a radically different document to that previously proposed.” 9 He continued to indicate:

“The new document removed approximately 90 pages of conditions and entitlements. The new document also retracted matters that were uncontroversial and were previously agreed by the SBU and AGL. For example, both parties were previously proposing a 36 hour week but AGL’s new proposal instead advanced a 37.5 hour week.” 10

[26] On 26 January 2016 Mr Dyke wrote to the General Manager again, giving notice the Union believed AGL representatives were in breach of various good faith bargaining obligations, including engaging in capricious conduct, not giving claims genuine consideration, refusing to provide relevant information, and not giving genuine reasons for refusing claims. These claims were rejected by AGL, and further correspondence was exchanged reiterating these positions.

[27] Mr Dyke said a further bargaining meeting then took place on 22 February 2016. He was then advised by Mr Rieniets that AGL was proposing “a facilitated a bargaining summit” involving a paid consultant to facilitate meetings in the following month. 11 The Union responded by indicating it was not prepared to accept a facilitator, however, the person could be included as a consultant on AGL’s negotiating team.

[28] Mr Dyke then sent a further letter on 3 March 2016 advising AGL its representatives were required to meet at reasonable times, and the CFMEU believed it was not meeting its good-faith bargaining obligations. Further exchanges then occurred in a similar vein, and on 17 March 2016 Mr Dyke received a letter from the General Manager indicating AGL was no longer prepared to meet at the next agreed meeting date, and wanted to meet first with the six newly appointed employee bargaining representatives.

[29] Mr Dyke also acknowledged in cross-examination that he understood around 330 employees were now represented by the six newly appointed employee bargaining representatives and, as a consequence, the CFMEU now represented around 100 employees. However, he said those employees were a critical part of the workforce.

[30] On 22 March 2016 the CFMEU filed a protected action ballot application, and further attempts were then made to organise a further bargaining meeting, but AGL continued to question the structure of the single bargaining unit, and indicated it was not prepared to meet at this time. Mr Dyke then wrote to the General Manager on 28 March 2016 indicating AGL has now refused to meet on eight occasions since the last meeting on 22 February 2016. He also proposed a further nine dates on which the CFMEU was available to meet. Further unsuccessful attempts were then made to organise meetings, and on 3 April 2016 he wrote to Mr Rieniets giving notice AGL’s “continual refusal to meet at reasonable times with all SBU bargaining representatives would be regarded as a breach of good faith bargaining.” 12

[31] He said on 11 April 2016 he received an email from AGL advising the date of the forthcoming bargaining meeting was no longer suitable, and on the following day he replied proposing further meeting dates. The CFMEU bargaining representative subsequently told him they had been informed the meeting had been cancelled, because of this application and AGL’s separate s.240 application.

[32] The final witness statement provided by Mr Dyke (exhibit “CFMEU3”) responded to a number of the matters dealt with in the witness statement of Mr Clinch, relied on by AGL. Mr Dyke took issue with some of the materials provided by AGL to its employees as part of the bargaining process. He also took issue with claims AGL has been restricted in managing the business effectively, and sought to distinguish between the parent company, AGL Energy, and its subsidiary AGL Loy Yang, and highlighted positive profit announcements recently released by AGL Energy.

[33] He disagreed with the characterisation by Mr Clinch of AGL’s initial proposal only involving modest changes and generous increases. He said:

“I disagree with his characterisation of the changes being sought because in my view up to 40 job positions would be lost, there were proposed changes with detrimental OH&S effects and there were other changes that would allow AGL to vary existing working arrangements and conditions in the future.” 13

[34] Mr Dyke said AGL had “…sought to commence negotiations early knowing that our two key negotiators, who had negotiated the last 5 or 6 Enterprise Agreements, were away on leave.” 14

[35] He continued to take issue with a range of issues dealt with by Mr Clinch in his witness statement concerning the circumstances surrounding the negotiations in the latter part of last year. He also took issue with his view about the detrimental impact of various work practices on the site, and disagreed with his characterisation of what has occurred at other power stations in the Latrobe Valley, and about recent enterprise agreement outcomes negotiated at those sites.

[36] He said Mr Clinch also misrepresented various proposals put in an endeavour to establish a bargaining timetable and process to progress the negotiations, and AGL’s position in regard to the proposed “bargaining summit.” 15 He also took issue with any question about his authority to take responsibility for the bargaining process on behalf of the CFMEU, or for his authority to delegate to others.

[37] AGL submits, in response, it has been seeking to bargain for a new enterprise agreement with its employees, and their bargaining representatives, since July last year “in a climate where greater flexibility is needed to enable AGL to meet business and economic challenges.” 16 It submits it was initially prepared to enter into an Agreement that it describes as involving “only minimal flexibility improvements and with pay increases significantly above CPI, if that would achieve an early agreement and avoid industrial disputation.”17

[38] However, it now opposes the orders sought by the CFMEU, and highlights the following circumstances, in particular, in opposing the application. It submits the CFMEU initially refused to join the bargaining until three months after it commenced, and then refused to agree to any of the productivity improvements sought by AGL. It then refused to participate in a facilitated bargaining summit proposed by AGL in an endeavour to progress the negotiations.

[39] In March 2016 six additional non-union employee bargaining representatives were also appointed by a significant number of the employees to be covered by the proposed Agreement. AGL accordingly attempted to meet with those employees in order to gain an understanding about their objectives in the bargaining process. It also wanted to make sure they were not under the control or influence of other bargaining representatives. However, it submits the CFMEU sought to block these attempts to meet.

[40] AGL accordingly opposes the present application, referring to what it describes as “two critical preconditions” that have not been met, in all the circumstances, by the CFMEU, namely:

“(a) the Commission must be satisfied (relevantly) that one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements (s230(1)(b); s230(3)(a)); and

(b) the Commission must be satisfied that it is reasonable in all of the circumstances to make the order (s230(1)).” 18

[41] It continues to submit, against this background, the CFMEU’s application should be dismissed in circumstances where both parties have simply been engaged in robust bargaining, and there is no evidence to establish any good-faith bargaining obligations have been breached.

[42] AGL makes reference to a number of additional matters. Firstly, it submits the CFMEU has been selective in the facts and circumstances it relies on, and has not disclosed all relevant materials including, for example, copies of responses provided by AGL to correspondence from the CFMEU. It also refers to the CFMEU’s failure to call evidence from Mr Greg Hardy, who was described by Mr Dyke as the CFMEU’s lead negotiator in the current negotiations, or Mr Luke Van der Muelen, the Victorian District President of the CFMEU Mining and Energy Division. AGL submits the Commission should accordingly draw a Jones v Dunkel 19 inference in response to them not being called to give evidence.

[43] AGL continues to submit that in July last year it invited the CFMEU, the ASU, the ETU and Professionals Australia to a meeting to discuss arrangements for the bargaining of a new enterprise agreement to replace the existing 2012 Agreement. However, the CFMEU refused to attend, indicating it did not want to start negotiations at this time. A series of six meetings then took place in August, September and October 2015, with the other three Union bargaining representatives. In August and November 2015 AGL distributed to its employees, and to each of the four Unions, a proposed draft Agreement, setting out its proposed changes to the existing 2012 Agreement. Copies of these materials were also provided to the CFMEU.

[44] In late August it received an email attaching 60 employee bargaining representative nominations, which appointed Mr Greg Hardy and Mr Brian Walsh as individual bargaining representatives. It submits it would appear that the purpose of the nomination of Mr Hardy and Mr Walsh in an individual capacity was to frustrate the bargaining occurring in August 2015 and/or to provide a further excuse for the ongoing refusal of the CFMEU to participate in such bargaining. AGL subsequently responded by indicating it understood this acted to nominate the CFMEU as a bargaining representative, and submits from the time the CFMEU joined the bargaining Mr Hardy and Mr Walsh have participated on behalf of the CFMEU.

[45] On 28 September 2015 the CFMEU advised it now intended to attend the enterprise bargaining meetings, but objected to the approach taken by AGL up to that point, and refused to acknowledge the bargaining meetings that had taken place already with the other Unions. A series of correspondence was then exchanged about these issues. The CFMEU subsequently attended its first bargaining meeting on 16 October 2015, and provided AGL with a draft enterprise agreement, and a summary of its claims, on 28 October 2015.

[46] However, AGL submits this draft did not incorporate any of its proposed changes, and the CFMEU had failed “to engage” with any of its proposals at any time, or the rationale for seeking those changes. It also submits the CFMEU’s draft Agreement sought to introduce a number of additional inflexibilities and costs.

[47] AGL said it then decided, given the divergence between its position and that of the CFMEU, to submit its proposed Agreement to an employee ballot. The ballot was subsequently conducted between 27 November and 2 December 2015, and the outcome declared on 3 December 2015, with the employees voting not to accept the Agreement. AGL then met with the Unions again on two separate occasions, and in subsequent correspondence it was agreed each would assess their bargaining positions, and meet again on 23 December 2015 to exchange revised positions.

[48] AGL submits the Unions provided a revised log of claims at this meeting, which did remove some of the claims for additional inflexibilities, but did not include any of the productivity improvements sought by AGL. It then advised the Unions that given its original approach was not acceptable it now intended “to pursue a broader reform agenda,” and a revised draft Agreement was provided to the bargaining representatives. 20

[49] A series of further meetings then took place in January and February 2016, however, AGL submits little or no progress was made in those discussions, with the most recent meeting taking place on 22 February 2016. AGL also raised concerns during this period about what it described as non-permitted content included in the CFMEU’s claims for the proposed enterprise agreement. It also submits some of these claims, including those to do with “insourcing,” raised legitimate issues about whether the CFMEU was genuinely trying to reach agreement. 21 It also submits the CFMEU continued to press these claims up to the day prior to the present hearing, and the submissions and evidence provided by the CFMEU have ignored AGL’s correspondence about these matters.

[50] AGL submits in late February 2016 it wrote to the Unions suggesting a different approach to bargaining, based on the use of an external facilitator, but this was not acceptable to the CFMEU. A series of further exchanges then occurred about the dates of further meetings with the parties unable to reach agreement.

[51] In early March 2016 AGL received notice of the appointment of six additional employee bargaining representatives, who were indicated to have been nominated by a total of 337 employees, or more than half of the 578 employees who will be covered by the proposed Agreement. AGL continued to submit, “the appointment of the Nominated Bargaining Representatives was a significant change in the dynamic and the structure of the bargaining.” 22 It also means the four Union bargaining representatives now represent a minority of the employees at the power station and mine, with the CFMEU representing approximately 90 employees out of the total of 578.

[52] However, AGL submits that since this time the employee bargaining representatives have not provided any indication about their intentions in regard to the new Agreement. It continues to submit in response:

“In light of the requirement that bargaining representatives be free of control, and improper influence, by other bargaining representatives, it cannot be assumed that the Nominated Bargaining Representatives will simply adopt the previous bargaining positions of the minority unions. It is appropriate that AGL LY and the Nominated Bargaining Representatives meet with each other and explore issues.” 23

[53] It also notes Mr Dyke did not deny in cross examination that the nomination of the employee bargaining representatives was unusual, and it was up to AGL to ensure they were not subject to control or improper influence from other bargaining representatives. AGL submits it is appropriate for it to seek to meet separately with the employee bargaining representatives in order to clarify their position and approach, however, to date with the exception of one representative, they have refused to meet.

[54] It also submits emails obtained under subpoena from Mr Hardy, sent to various employees enclosing a pro forma nomination form “…raise real concerns as to whether the appointment of the Nominated Bargaining Representatives was simply another tactical manoeuvre being engaged in by the CFMEU.” 24

[55] It also submits there is now a legitimate issue, as a consequence of these developments, about whether the single bargaining unit structure remains relevant in the current bargaining process, given the CFMEU now represents only 15% of the workforce, but still claims 7 of 13 places in the single bargaining unit.

[56] AGL continues to submit the refusal of the employee bargaining representatives to meet with it, and wanting instead to meet as part of the single bargaining unit, has been a motivating factor as to why it now seeks the Commission’s assistance in relation to the structure of future negotiations.

[57] It next submits the two applications made by the CFMEU for protected action ballot orders have also impacted on the process of negotiations. A significant issue in this context is whether the CFMEU is genuinely trying to reach agreement, given its protected action ballot order applications seek to cover AGL Energy, and its related corporate entities, rather than just AGL Loy Yang.

[58] Mr Michael Clinch is the Manager – Group Employee Relations, AGL Energy Ltd, the parent company of AGL Loy Yang Pty Ltd. He is responsible for the enterprise agreement negotiations on behalf of AGL Loy Yang.

[59] His evidence detailed a number of practices at the power station and coal mine that AGL considers to be restrictive, and have an adverse impact on productivity. He also detailed the broad strategy AGL has adopted in the bargaining process, which essentially involves two approaches. The first was described as a more straight forward position, put forward on the basis of concluding an Agreement prior to the expiry of the existing 2012 Agreement. However, after that was rejected AGL sought to negotiate a different proposal, involving an outcome which aimed to provide cost reductions and increases in workplace flexibility.

[60] Mr Clinch’s evidence also provided considerable detail about the course of bargaining in the latter six months of last year, including detail about the range of claims pursued by the CFMEU. He also detailed what has occurred in the early part of this year, including AGL’s proposal for what he described as “a bargaining summit.” 25 His statement also provided details about the subsequent appointment of the six employee bargaining representatives, who were appointed on behalf of 337 employees covered by the 2012 Agreement, which he described as “a unique and odd development.”

[61] Mr Clinch denied in cross-examination that AGL had sought to exclude or bypass the CFMEU, or its nominated representatives, in any of the bargaining processes. He also acknowledged the second proposal put by AGL was a very different proposal from that proposed at the outset, and agreed it could be described as “a radical proposal.” However, he also indicated the CFMEU proposal could be described in a similar vein, in that it was “100 miles the other way.”

[62] AGL continues to submit that in the terms of “the critical jurisdictional pre-requisite to the making of a bargaining order is set out in s.230(3) (read together with s.230(1)(b)).” 26 The Commission must also be satisfied AGL has not met, or is not meeting, the good faith bargaining requirements set out in s.228, and it may then only make an order if it is satisfied it is reasonable in all the circumstances to do so.

[63] In this context it refers to the decision of Kaufman SDP in LHMU v Foster’s Australia Ltd 27 when he concluded at [20]:

“In my view FWA should be slow to interfere in the legitimate tactics undertaken by parties during the bargaining process unless an applicant for a bargaining order has demonstrated that there are sound reasons for so doing. There needs to be satisfaction that the good faith bargaining requirements are not being met. An order under s.230 is discretionary and may only be made if FWA is satisfied that it is reasonable in all the circumstances to make the order.” 28

[64] It also submits all of the circumstances need to be considered in terms of whether the Respondent has met its good faith bargaining obligations, and in this context it relies on the decision of Commissioner Hampton in The Australasian Meat Industry Employees Union v T & R (Murray Bridge) Pty Ltd 29 when the Commissioner concluded:

“…the requirements of s.228 must be applied in the particular circumstances of each case. Whilst general principles may emerge from other decisions of Fair Work Australia (FWA), the pursuit of simple, flexible and fair collective bargaining requires that the particular circumstances, dynamics and context of each application be weighed in applying the statutory requirements. Further, there is no general discretion for FWA to merely prescribe an alternative "fairer" bargaining process in the absence of a positive finding that the good faith bargaining obligations have not been met.” 30

[65] AGL also provided submissions in response to each of the draft orders sought by the CFMEU.

Meetings at reasonable times

[66] It submits the draft Order should be considered in the context of various circumstances, including the CFMEU’s failure to participate in meetings during the period from July to mid October last year, and the fact there have been 23 bargaining meetings in total since bargaining commenced. It also highlights the refusal by the CFMEU to participate in the proposed “intensive three-day facilitated summit,” and the changed dynamics in more recent times as a consequence of the employee bargaining representatives being nominated in March 2016, who now represent the overwhelming majority of employees. It also notes there have been numerous occasions when meeting dates have been proposed, but it has been difficult, in turn, to find dates that suit all involved.

[67] AGL submits in conclusion:

“At all times, AGL LY has been willing to attend and participate in bargaining meetings at reasonable times. This was made clear in AGL LY’s letters dated 17 March 2016 and 5 April 2016. However, this does not necessarily mean that AGL LY must meet at times demanded by the CFMEU, or in meetings structured as demanded by the CFMEU.” 31

Respond/give genuine consideration to/give reasons in response to proposals

[68] AGL submits the evidence makes clear it has at all times responded to the CFMEU’s proposals, both in the course of bargaining meetings, and in other communications. It also submits it has been clear from the outset about its approach by way of the information it provided about the challenges confronting the business, and the structure of its initial proposal, and what would be its broader agenda if it was not accepted. It also submits it has given due consideration to the CFMEU’s proposals, both in terms of its original claims and the draft Agreement provided in mid October 2015, as well as the amended proposal provided by the CFMEU in late December. AGL submits, in conclusion, its failure to agree to the claims might be frustrating for the CFMEU “but it is not bad faith bargaining. Bargaining representatives are entitled to adopt hard bargaining positions.” 32

Refrain from unfair or capricious conduct

[69] AGL acknowledges, in its submissions, it has sought at various times, including from the outset of the bargaining process, to update its employees on the state of bargaining, including by providing employee updates and holding employee information sessions. It continues to submit it is appropriate and reasonable to keep employees informed throughout the bargaining process, so that they are informed and able to exercise their rights and entitlements at any time if they choose.

[70] It also submits any communications with employees have been consistent with the information provided to the bargaining representatives, and it provided the CFMEU with the same information during the period in which it elected not to participate in the bargaining process.

Bargaining with the bargaining representatives

[71] AGL submits it has in more recent times attempted to meet with the newly appointed employee bargaining representatives, but with little success. It submits this is appropriate given the legislative scheme in the Act, and the focus upon bargaining representatives, rather than the single bargaining unit, which is not an entity recognised in the legislation. It continues to submit the Order now proposed by the CFMEU is inconsistent with the requirement in the Act, because it would prevent AGL from meeting with and recognising the employee bargaining representatives.

[72] It also submits it is legitimate to seek to have a bargaining unit in place that appropriately recognises the proportion of employees represented by each of the bargaining representatives, and its attempts to meet separately with the employee bargaining representatives in order to understand their position, is not inconsistent with the good faith bargaining requirements in s.228(1)(f).

[73] AGL submits, in conclusion, the CFMEU has failed to “meaningfully notify its concerns about compliance with the good faith bargaining requirements” during the bargaining process, particularly given the changing circumstances that have eventuated and evolved during the process. 33

[74] It also refers to s.230(1)(c) and whether it is reasonable in all the circumstances to make the Orders sought. In this context it refers to its s.240 application, and submits the current Orders are unnecessary at this time. In its submission the s.240 application is “a constructive option,” which should be allowed “to run its course” before any other options are considered. 34

[75] AGL also provided submissions about some alternative proposals in respect of each of the draft Orders sought by the CFMEU, if the Commission decides it is appropriate to make Orders in response to the application. However, it submits the Commission should dismiss the application as the jurisdictional prerequisites in s.230(3) have not been satisfied.

Consideration

[76] One conclusion can be drawn at the outset from the submissions and evidence relied upon by the parties in these proceedings. The bargaining process to date, as far as it involves the CFMEU and AGL Loy Yang, has been characterised by behaviour that might variously be described as robust, adversarial, and involving what is sometimes described as hard positional bargaining. This is not intended to imply criticism of either party, but simply to describe what appears to be the reality.

[77] The evidence has also detailed at some length the various strategies and approaches adopted at different times since the bargaining ball was first bounced in July last year. It indicates that at different times the parties have been prepared to be part of the game, but at other times they appear to have sat on the sidelines, and reviewed their involvement, until such time as they were again ready to engage.

[78] The evidence has also provided an indication of the voluminous claims and counter claims exchanged between the CFMEU and AGL along the way about alleged breaches of the good faith bargaining requirements. On one view it appears more time and resources have been spent in taking issue with the process of bargaining, than in actually bargaining to put in place an Agreement to replace the existing 2012 Agreement.

[79] As indicated at the outset the good faith bargaining requirements are set out in s.228 of the Act, and apply to bargaining representatives involved in bargaining for an enterprise agreement. The scheme of the legislation makes clear they do not require a bargaining representative to make concessions during bargaining, or to reach agreement about the terms to be included in an Agreement.

[80] The legislation also makes clear a breach of these requirements is not in itself a breach of the Act, however, a finding that these requirements have not been complied with does provide the basis for the Commission to exercise the discretion available to it to make Orders, subject to the provisions in s.230. The Act also makes clear the prerequisites in s.229 must first have been met before an application can be made.

[81] In the present application the CFMEU submits AGL is in breach of at the least four of the requirements in s.228. AGL denies this is the case, and claims in response the CFMEU has not complied with the good faith bargaining requirements. It also submits the Commission is not in a position to conclude “that it is reasonable in all the circumstances to make the order,” as s.230(1)(c) requires. 35 In its submission the Commission should accordingly decline to make any of the Orders sought by the CFMEU, and instead allow the bargaining processes, and the additional process initiated by AGL’s s.240 application, to play out.

[82] I now turn to consider the application and the proposed draft Orders sought by the CFMEU against the background of the relevant legislative provisions, and the submissions and evidence provided by the parties.

[83] The CFMEU in its submissions and evidence takes issue with AGL’s actions in regard to several of the good faith bargaining requirements. Its proposed draft Orders seek to respond, in particular, to breaches of the following requirements in s.228.

“(a) attending, and participating in, meetings at reasonable times;

…

(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.” 36

[84] It is appropriate to deal with each of these good faith bargaining requirements in coming to a decision in this matter.

Attending, and participating in, meetings at reasonable times;

[85] AGL’s evidence indicates it sought to commence bargaining for a new Agreement in July last year, approximately six months in advance of the nominal expiry date of the existing 2012 Agreement that now covers the parties. It initially invited the four Unions, who have traditionally acted as bargaining representatives for the employees, to attend a series of bargaining meetings. Three of the unions, namely the ASU, ETU and Professionals Australia, took up that offer, however, the CFMEU elected not to at that time.

[86] The evidence of Mr Dyke indicates the CFMEU considered it was too early to commence bargaining at that point, given the existing Agreement had almost six months to run before it reached its nominal expiry date. Mr Dyke also said the CFMEU’s two lead negotiators were on extended annual leave at this time, and it was not in a position to participate in the negotiations as a consequence.

[87] The CFMEU then advised AGL in mid-October 2015 it was now prepared to be involved in the negotiations, and it then participated in the series of bargaining meetings that took place from a point in late October, until the last meeting on 22 February this year.

[88] From this point of time the evidence is conflicting about what occurred. The CFMEU submits the evidence indicates it proposed 11 separate meeting dates between the end of February 2016 and the making of this application, but AGL was not prepared to commit to meet at any of those times.

[89] AGL submits, in response, it was not available to meet on some of the dates proposed by the CFMEU. It also submits it was endeavouring to meet with the newly appointed employee bargaining representatives in order to understand their position in terms of the claims they were seeking to pursue in the bargaining process, and how they believed the bargaining process should progress from this point.

[90] The evidence also indicates AGL had formed the view the series of bargaining meetings leading up to 22 February 2016 had achieved very little in terms of progressing the negotiations, and it accordingly suggested an independent facilitator be introduced into the process, with a series of dates proposed for an intensive bargaining process; an initiative the CFMEU was not prepared to accept. It did, however, suggest the external consultant could participate in the bargaining meetings as part of AGL’s bargaining team.

[91] In dealing with the evidence and submissions about this requirement it is difficult to come to a conclusion that one bargaining representative is in breach of the good faith bargaining requirements, and the other is blameless. The CFMEU submits that what it is seeking, in terms of its draft orders, simply represents a straightforward and “mundane” request, in that for bargaining to occur the bargaining representatives should, at the very least, have established a program of meeting dates at regular intervals.

[92] To this extent I agree. However, as with most aspects of the circumstances in this matter it is not that simple. The evidence makes clear that at various times since July last year each of the bargaining representatives have variously sought to establish a bargaining process and timetable that best suits their interests. For example, AGL sought to commence the bargaining process well in advance of the nominal expiry of the existing Agreement in an endeavour to conclude bargaining for a new Agreement before that date. It subsequently participated in a series of bargaining meetings with three of the four Union bargaining representatives, before the CFMEU decided to get involved.

[93] As the evidence indicates the CFMEU was not prepared to participate until some three months later, and a series of regular meetings then took place during the next four months with all of the Union bargaining representatives, but ultimately with little progress made.

[94] AGL then decided a facilitated bargaining process might assist to progress the negotiations, and the evidence points to a variety of exchanges between the bargaining representatives about how this might occur, and whether they would participate. At around the same time six new employee bargaining representatives were appointed. This was clearly a significant development and meant the CFMEU now represented less than 20% of the employees to be covered by the proposed Agreement, whereas previously it had represented the overwhelming majority.

[95] AGL submits it was now required to meet with the newly appointed bargaining representatives in order to understand their interests in the negotiations, and how they believed the bargaining process should be progressed. The evidence indicates AGL was also of the view this development raised issues about the make-up of the bargaining unit, and the number of employee delegates to be provided with leave to attend bargaining meetings, given the changes in representation.

[96] I am satisfied, in response, that each of these developments provides justification for each bargaining representative to consider the implications before the bargaining process was reconvened, and inevitably they have resulted in disruption and delay to the process.

[97] In conclusion, I am not satisfied that the evidence establishes a breach of the obligations contained in s.228(1)(a). Rather, it appears instead to again highlight the hard positional bargaining process the bargaining representatives have been involved in.

Giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representatives responses to those proposals;

[98] The submissions and evidence in this context have again detailed at length what has occurred. Two aspects, in particular, warrant further consideration. Firstly, the evidence details the steps taken by AGL to “set the scene” at the outset about the environment in which the business was operating, and the challenges facing it now and into the foreseeable future. This was provided to employees in an endeavour to establish the justification for changes to existing arrangements.

[99] The CFMEU submits, in response, that much of this material is misleading and not supported by the facts. It also submits AGL has sought to confuse the issue by variously referring to the parent company at times, and its subsidiary AGL Loy Yang, at other times, depending on the point it was seeking to emphasise. Mr Dyke in his evidence in cross-examination also referred to the material as “propaganda” and dismissed it on that basis. However, AGL submits the evidence indicates the CFMEU has failed to have proper regard for this information, and its relevance to the bargaining process and its outcomes.

[100] There has also been a significant amount of evidence provided about whether the bargaining representatives have given genuine consideration to the proposals of the other. For example, AGL submits it decided to put a draft Agreement to a vote in November last year because the CFMEU would not give proper consideration to its proposals at that time. It makes the same submission about its subsequent revised proposal. It also submits the CFMEU has not, at any stage, being prepared to consider any of the changes to current working arrangements proposed by AGL. It has instead sought to introduce further cost and inflexibility by its claims.

[101] The CFMEU provided its claims for the new Agreement to AGL in mid-October. Since that time it also claims AGL has failed to give proper consideration to its claims, and has not provided reasons in response as to why they are unacceptable.

[102] Again, it is difficult to conclude that either bargaining representative has been in breach of their good faith bargaining obligations based on this evidence. The reality appears to be instead that neither party, after considering the proposals of the other, has been prepared to accept those proposals. In AGL’s case the evidence indicates it wants changes to existing arrangements to be able to give it more flexibility and reduced operating costs. The CFMEU appears in response to accept none of these proposals, and is instead pursuing its own agenda which seeks additional benefits and entitlements for the employees it represents.

[103] It is acknowledged that the legislative intention of the good faith bargaining provisions is ultimately not just to impose a requirement to bargain in good faith, but ultimately to bargain to achieve an enterprise agreement, as far as possible. However, as indicated already the good faith bargaining requirements do not require a bargaining representative to make concessions or to agree.

[104] However, in this matter it appears that the respective positions of AGL and the CFMEU go to the essence of why there has been little progress to date toward the conclusion of a new enterprise agreement, rather than this being due to any breach of the good faith bargaining requirements. The reality appears to be that each has a very different view about what the final Agreement should involve, and there is no “meeting of the minds” at this point to enable an Agreement to be concluded. This is not intended to be a criticism of either, but rather a view about what appears to be the prevailing reality.

Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining.

[105] The Order sought by the CFMEU in this context is directed at what it submits has been AGL’s attempts at various times to engage in direct communication with employees, and thereby to bypass the appointed bargaining representatives. Reference has already been made to some of these actions in the paragraphs above. AGL submits, in response, it is entitled to keep employees advised and updated about the progress of bargaining, and it has adopted this approach from the outset. It submits it has at all times provided the same information to each of the Union bargaining representatives, including the CFMEU.

[106] However, the CFMEU submits AGL’s actions have sought to undermine collective bargaining and the status and authority of the bargaining representatives. It also submits AGL’s actions can be described as capricious and involving unfair conduct. It continues to submit its draft Order intends to prevent this, and the distraction being caused as a consequence, so that the parties can focus on the bargaining process.

[107] Neither party made reference to any authorities that might be relevant in this context. However, previous Commission decisions have concluded that direct communication with employees, in appropriate circumstances, is not necessarily in breach of the good faith bargaining requirements. This has been held to be the case, particularly in circumstances where the same materials have been provided to the Union bargaining representatives, and the employer has continued to be part of the bargaining process.

[108] In this context I refer to the decision in Australian Municipal, Administrative, Clerical and Services Union v Global Tele Sales Pty Ltd 37, and the decision in Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd38. In that matter the Full Bench concluded that the employer was entitled to decide that after an extended period of negotiations, with no agreement, it was able to explain its negotiating position to its employees directly, without breaching the good faith bargaining requirements.

[109] It is understood from the definition contained in the Shorter Oxford Dictionary that “capricious conduct” involves an unaccountable change of mind. Based on this definition, and the authorities referred to, I am not satisfied that the actions complained can be said to come within the description of capricious or unfair conduct that undermines freedom of association or collective bargaining.

[110] The evidence also indicates the CFMEU and the other Union bargaining representatives were provided with the materials AGL gave to its employees, and the CFMEU took the opportunity to make its views known about the content of these communications, both with AGL and with its members.

Recognising and bargaining with the other bargaining representatives for the agreement.

[111] The CFMEU submits in this case AGL is not recognising the structure and make-up of the single bargaining unit that all Union and employee bargaining representatives want to have in place. It is understood that prior to the appointment of the employee bargaining representatives the single bargaining unit was constituted by:

• Seven CFMEU representatives, being one official and six delegates (three from the power station and 3 from the mine);



• Two ASU representatives, being one official and one delegate;



• Two ETU representatives, being one official and one delegate;



• Two Professionals Australia representatives, being one official and one delegate.

[112] The CFMEU now submits this group should be extended to include the additional six employee bargaining representatives.

[113] It also submits AGL’s actions in now seeking to meet separately with the newly appointed bargaining representatives is not consistent with an effective approach to bargaining, in circumstances where those bargaining representatives have indicated they want to be part of the existing single bargaining unit.

[114] AGL submits, in response, it is legitimate for it to question the current representation of the single bargaining unit, given the CFMEU’s representation of employees has now changed significantly following the appointment of the employee bargaining representatives, to the point where it now represents less than 20% of the employees to be covered by the proposed Agreement.

[115] AGL also submits it is entitled to seek to meet with the newly appointed bargaining representatives, given the scheme of theActmakes clear a bargaining representative must be free from control and improper influence from the employer or another bargaining representative. It therefore seeks to have discussions with the newly appointed representatives to understand their position.

[116] Clearly the appointment of the six individual employee bargaining representatives in March is at the heart of this issue. The evidence makes clear this was a surprising development, at least for AGL. Mr Dyke in cross-examination grudgingly acknowledged it was a development that provided AGL with some cause to seek to understand what motivated this change, and what the new bargaining representatives wanted on behalf of the employees they represent.

[117] However, it has also changed the nature of representation, as indicated already, with the CFMEU no longer representing the overwhelming majority of employees, but instead having a much reduced representational role.

[118] I am satisfied it is not necessary to consider in any detail the reasons why this development has occurred, or whether it is appropriate, both in practical terms or when considered in conjunction with the relevant legislative provisions. However, I am satisfied it is a significant development that entitles AGL to give consideration to the structure of the single bargaining unit, given the changes in employee representation, and the costs it is incurring in allowing employees to leave work to attend bargaining meetings. I am also satisfied it is appropriate for AGL to endeavour to understand what the new bargaining representatives intend on behalf of the employees they now represent. In summary, it has been an unusual development that has inevitably disrupted the bargaining process.

[119] Without commenting further it also provides a further example of the lengths to which the parties will go in this matter to pursue different strategies and approaches as part of the hard bargaining process that they have been involved in during the past 11 months. However, leaving aside these considerations I am not satisfied that the orders sought by the CFMEU can be justified on the basis of evidence pointing to a breach of the good faith bargaining requirements by AGL.

Conclusion

[120] In conclusion, I am not satisfied that the evidence establishes AGL is in breach of the good faith bargaining requirements in the way that the CFMEU contends. I therefore decline to make the orders sought by the CFMEU, or indeed any other orders.

[121] However, I also add the following footnote, even though it is not directly relevant to the outcome, given the decision I have come. Section 230 of the Act provides, inter alia, that the Commission may make a bargaining order in relation to a proposed enterprise agreement if it is satisfied it is reasonable in all the circumstances to make the order.

[122] In this case the present application is made by only one of the four Union bargaining representatives. No evidence was provided about the position of the remaining Union bargaining representatives in regard to the application, or whether orders should be made. The Commission has also not had the benefit of any evidence from the six individual employee bargaining representatives about whether they believe orders should be made and, if so, what form those orders should take.

[123] In my view these considerations are relevant, in all the circumstances of this matter, in terms of whether it is appropriate to make bargaining orders, when the Commission is required to be satisfied it is reasonable in all the circumstances to do so. It follows that the Commission should have regard to the views of all bargaining representatives and not just, as in this case, the Employer and a Union bargaining representative that represents only a proportion of the total number of employees to be covered. However, given my decision in this matter this is not a determinative factor in this case. In conclusion, for the reasons indicated above the application is dismissed

COMMISSIONER

Appearances:

Mr A. Bukarica appeared on behalf of the CFMEU.

Mr C. O’Grady QC appeared with Mr B. Avallone of Minter Ellison on behalf of the Respondent.

Hearing details:

2016.

Melbourne:

17 and 25 May.

 1   AE894678.

 2   Fair Work Act 2009 (Cth) at ss.228–232.

 3   B2016/442.

 4   Submissions of the Applicant, dated 22 April, at para 15.

 5   Ibid.

 6   Ibid at para 34.

 7   Ibid at para 36.

 8   Ibid at para 42.

 9   Exhibit CFMEU1 at para 37.

 10   Ibid.

 11   Ibid at para 42.

 12   Ibid at para 61.

 13   Exhibit CFMEU3 at para 9.

 14   Ibid at para 13.

 15   Ibid from para 60.

 16   Outline of Submissions of the Respondent dated 6 May 2016 at para 1

 17   Ibid.

 18   Ibid at para 6.

 19 [1959] HCA 8.

 20   Above n.xvi at para 57,

 21   Ibid from para 62,

 22   Ibid at para 76,

 23   Ibid at para 76,

 24   Amended Submission of Respondent dated 25 May 2016 at para 100.

 25   Exhibit AGL8 from para 95.

 26   Above n.xvi at para 96.

 27   [2009] FWA 750.

 28 Ibid at [20].

 29   [2010] FWA 1320.

 30 Ibid at [44].

 31   Above n.xvi at para 103.

 32   Ibid at para 114.

 33   Ibid at para 132.

 34   Ibid at para 136.

 35   Ibid at para 6(b).

 36   Fair Work Act 2009 (Cth) at s.228.

 37   [2011] FWA 3916.

 38   [2010] FWAFB 3510.

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