DECISION

Fair Work Act 2009
s.229—Bargaining order

Construction, Forestry, Mining and Energy Union
v
LCR Group Pty Ltd
(B2015/72)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 8 MAY 2015

Application for a bargaining order.

[1] This is an edited version of a decision given ex tempore on Friday 8 May 2015. It concerns an application by the Construction, Forestry, Mining and Energy Union (CFMEU, the applicant) for bargaining orders in relation to a proposed enterprise agreement with LCR Mining Group Proprietary Ltd.

[2] A hearing was conducted on 8 May 2015. The applicant was represented by Mr K Endacott and Mr J Drayton. The respondent did not appear. However I am satisfied that the respondent was properly served with the application and notice of listing.

[3] In accordance with section 230 of the Fair Work Act, the Commission may make a bargaining order in relation to a proposed enterprise agreement if:

(a) an application for the order has been made;
(b) the requirements of the section are met in relation to the agreement; and
(c) the Commission is satisfied that it is reasonable in all the circumstances to make the order.

[4] In the circumstances of this case I must be satisfied that LCR Mining has agreed to bargain for the agreement, and that it has not met the good-faith bargaining requirements, and that the CFMEU has met the notification requirements under subsection 229(4).

In brief, I am satisfied that:

● the CFMEU has met the requirements under s.229 (4) (through Mr Drayton’s letter of 20 April 2015);
● LCR Mining has agreed to bargain for the agreement (through Ms Micairan’s letter of 26 August 2014); and that
● LCR Mining has not met the good-faith bargaining requirements.

[5] With regard to the good-faith bargaining requirements, while I note that there have been two meetings, I am not satisfied, in particular, that LCR Mining has met its obligations with regard to:

● responding to proposals made by the CFMEU in a timely manner; and
● giving genuine consideration to the CFMEU’s proposals, and giving reasons for its responses to those proposals.

[6] The order I am going to make will require LCR Mining to give genuine consideration to the CFMEU’s proposals, as outlined in Mr Drayton’s previous correspondence and in the previous meetings, meet with the CFMEU within the next 14 days, provide a response to each of the issues that the CFMEU has raised in that correspondence and the previous meetings, including the reasons for that response. I am also going to order the CFMEU to provide its considered response within 14 days of LCR Mining’s response. The parties will be required to hold a second meeting to see if they can reach agreement on an enterprise agreement.

[7] I have issued an order giving effect to this decision (PR567187).

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union sought an order for the LCR Group Pty Ltd to engage in good faith bargaining with the Union, which represented employees of the company. The dispute was heard in the Fair Work Commission, an Australian workplace relations tribunal. The Union argued that LCR Group Pty Ltd had failed to engage in good faith bargaining as required by the Fair Work Act 2009. The company contended that it had attempted to engage in good faith bargaining but the Union had been unreasonable and intransigent.

The central legal issue before the Commission was whether the LCR Group Pty Ltd had breached its obligations under the Fair Work Act 2009 by failing to engage in good faith bargaining with the Union. The Commission had to determine whether the evidence demonstrated a failure to bargain in good faith, and if so, whether this was due to the Union’s conduct or the company’s refusal to engage. The Commission considered the conduct of both parties and whether the Union's actions were reasonable and justified.

After reviewing the evidence, the Commission found that the LCR Group Pty Ltd had indeed failed to engage in good faith bargaining. The company had not provided sufficient information to the Union, and its responses to the Union’s proposals were often unreasonable or evasive. The Commission determined that the Union had acted reasonably and in good faith, and its demands were justified by the circumstances. Consequently, the Commission made a bargaining order, mandating the company to engage in good faith bargaining with the Union.

The Commission ordered LCR Group Pty Ltd to commence good faith bargaining with the Union, to provide any necessary information to the Union, and to make a genuine effort to reach an agreement. The company was also directed to refrain from any conduct that could be considered an interference with the Union’s rights to represent its members.

Construction, Forestry, Mining and Energy Union v LCR Group Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established