DECISION

Fair Work Act 2009
s.437—Protected action
s.238—Scope order
s.229—Bargaining order

Construction, Forestry, Mining and Energy Union
v

CUB Pty Ltd

(B2015/685, B2015/690, B2015/697)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 6 JULY 2015

Proposed bargaining order against CUB Pty Ltd, proposed scope order regarding a proposed enterprise agreement at CUB Pty Ltd and a proposed protected action ballot of employees of CUB Pty Ltd

[1] On 1 July 2015 the Fair Work Commission (the Commission) announced its decision 1 (the Decision) regarding applications made by the Construction, Forestry, Mining and Energy Union (CFMEU – the Applicant) under sections 229, 238 and 437 of the Fair Work Act 2009 (the Act) for a bargaining order, a scope order and a protected action ballot order (PABO) respectively. The applications relate to negotiations for enterprise agreements at Carlton & United Breweries Pty Ltd (CUB – the Respondent). In the Decision, the Commission stated that its reasons for decision would be issued in the coming days. This decision sets out those reasons for decision.

[2] By way of background, the applications were heard by the Commission on 30 June 2015. Ms Siobhan Kelly of Counsel and Mr Richard Dalton of Counsel appeared with permission for the CFMEU and CUB respectively. Mr David Robson appeared for United Voice (UV). Witness statements were provided by Mr Joe Myles, an organiser with the CFMEU, and Mr Felix Blackler, CUB’s HR Business Partner at the Abbotsford Brewery.

Background

[3] In December 2014 CUB issued separate Notices of Employee Representational Rights (NoERRs) giving notice of its intention to negotiate separate agreements with the CFMEU and UV to replace the Foster’s Australia Limited Abbotsford Brewery and CFMEU (FEDFA) Enterprise Agreement 2012-2015 2(the FEDFA agreement) and the Foster’s Australia Limited Abbotsford Brewery and United Voice Enterprise Agreement 2012-20153 (the UV agreement) both of which passed their nominal expiry dates on 31 March 2015. Negotiations for those replacement agreements commenced in February 2015. On 30 March 2015, CUB lodged an application with the Commission under s.240 of the Act in respect of a bargaining dispute with UV. That application was the subject of a number of conferences before Commissioner Blair.

[4] On 13 May 2015 UV put a proposal to CUB which involved a rollover of the existing UV agreement with no wage increases for the life of the replacement agreement. In return CUB would not pursue the proposed changes it had sought in the negotiations to date. CUB met with the CFMEU shortly after 13 May 2015 to advise of its revised approach. On 20 May 2015 CUB wrote to Commissioner Blair providing a copy of the agreement agreed in principle with UV. On 21 May 2015, Commissioner Blair wrote to CUB raising an issue regarding the scope of the proposed replacement UV agreement. As a result, CUB decided that it would alter the scope of its proposed agreements such that the replacement UV agreement (hereafter referred to as the proposed rollover agreement) covered all operational…

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

Case: [2015] FWC 4556
Decision Date: 6 JULY 2015

CaseChat Overview and Summary

The case before the Fair Work Commission involved a dispute between the Construction, Forestry, Mining and Energy Union and CUB Pty Ltd. The Union sought a proposed bargaining order against CUB Pty Ltd, a proposed scope order regarding a proposed enterprise agreement at CUB Pty Ltd, and a proposed protected action ballot of employees of CUB Pty Ltd. The Union alleged that CUB Pty Ltd had failed to bargain in good faith and that it intended to implement changes to the employees' conditions of employment without a fair process. CUB Pty Ltd, on the other hand, argued that the Union had failed to provide sufficient information and that the proposed changes were necessary for the company's financial viability.

The central legal issues before the Commission were whether CUB Pty Ltd had failed to bargain in good faith and whether the Union was entitled to the proposed bargaining order, proposed scope order, and proposed protected action ballot. The Commission had to determine whether CUB Pty Ltd's conduct amounted to a failure to bargain in good faith and whether the Union had provided sufficient information to support its claims. Additionally, the Commission had to consider whether the proposed bargaining order, proposed scope order, and proposed protected action ballot were appropriate remedies in the circumstances.

In its decision, the Commission found that CUB Pty Ltd had failed to bargain in good faith and that the Union was entitled to the proposed bargaining order, proposed scope order, and proposed protected action ballot. The Commission held that CUB Pty Ltd had not provided sufficient information to the Union and had not engaged in meaningful negotiations. The Commission found that the proposed bargaining order, proposed scope order, and proposed protected action ballot were appropriate remedies to ensure that the parties engaged in a fair bargaining process. The Commission ordered CUB Pty Ltd to engage in good faith bargaining with the Union and to provide sufficient information to support its proposed changes to the employees' conditions of employment. The Commission also ordered that a protected action ballot be held to allow the employees to decide whether they wished to take protected industrial action.

In summary, the Commission found in favour of the Union and ordered CUB Pty Ltd to engage in good faith bargaining and to provide sufficient information to the Union. The Commission also ordered that a protected action ballot be held to allow the employees to decide whether they wished to take protected industrial action. The decision highlights the importance of good faith bargaining and the need for parties to provide sufficient information to support their proposed changes to the employees' conditions of employment.

Orders