Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd
[2010] FWA 942
•12 FEBRUARY 2010
Note: An appeal pursuant to s.604 (C2010/2978) was lodged against this decision - refer to Full Bench decision dated 5 May 2010 [[2010] FWAFB 3510] for result of appeal.
[2010] FWA 942 |
|
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
v
Tahmoor Coal Pty Ltd
(B2010/2511)
COMMISSIONER ROBERTS | SYDNEY, 12 FEBRUARY 2010 |
Application for a bargaining order.
[1] This decision concerns an application made by the Construction, Forestry, Mining and Energy Union (the CFMEU or the Union) pursuant to s.229 of the Fair Work Act 2009 (the Act) for a bargaining order. The Respondent employer is Tahmoor Coal Pty Ltd (Tahmoor). The application first came before me by way of conference on 20 January 2010. That conference was unsuccessful in resolving issues between the parties and the matter then came before me for determination on 25 and 29 January 2010.
[2] The CFMEU was represented by Ms J Gray and Tahmoor by Mr J Murdoch SC with Mr A Morris of Blake Dawson. Mr R Timbs (President of the Tahmoor Coal Handling and Preparation Plant (CHPP) Lodge) and Mr L Webb (Secretary of the Tahmoor Colliery Lodge) gave sworn evidence for the CFMEU. Mr P Baker (Tahmoor’s former Operations Manager) and Mr D Nicholls (the current Operations Manager) gave sworn evidence for Tahmoor.
[3] The CFMEU sought the issuing of the following order:
“1. The Respondent will punctually attend all regular meetings scheduled between the parties or by the Tribunal.
2. The same members of management, who will be authorised to negotiate and make decisions as bargaining representative of the employer, Tahmoor Coal Pty Ltd, will, in the absence of exceptional circumstances, consistently represent the Respondent.
3. The Respondent will cease capriciously adding new claims and withdrawing from agreement in principle reached during negotiations. Negotiations will recommence from the position of the parties as reflected in annexure “RT. 4” to the witness statement of Robert Timbs in this matter.
4. The Respondent and the Applicant will utilise the previously agreed procedural methodology to address each other’s claims and track progress on matters either agreed in principle or outstanding. This format of negotiating documentation appears in annexure “RT. 4” to the witness statement of Mr. Robert Timbs.
5. The Respondent will not reject the Applicant’s claims on the basis of impermissibility under the Fair Work Act 2009 without first seeking consensus on such matters between legal representatives of the Respondent and Applicant.
6. The Respondent will provide written answers to the Applicant’s repeated requests for reasons on operational, productivity or other objective bases for its rejection of the Applicant’s claims. It will do so within seven (7) days of this order and, in respect to future requests, in writing and in a timely manner.
7. The Respondent will not continue to require attendance by Tahmoor production and engineering employees at small group (e.g.crew) meetings on the Respondent’s claims in the absence of their bargaining representative.
8. The Respondent will not post or otherwise send further material on its claims to the Tahmoor production and engineering employees’ homes, unless such material is agreed between the parties..
9. The Respondent will not, directly or by its staff employees or agents make threats or exert pressure on the Tahmoor production and engineering employees as individuals or small groups to extract their support for the Respondent’s claims.
10. Should the Respondent wish to present its claims directly to its workforce it will only do so by convening meetings of shifts or the production and engineering workforce as a whole and will do so only in the presence of their bargaining representative. Equal time will be permitted to the employees’ bargaining representative for presentations and/or answering questions at any such meetings.
11. The Respondent will not put a proposed enterprise agreement to the workforce for a vote pursuant to s.181(1) unless one of the following applies:
• the proposed enterprise agreement is agreed in principle between the bargaining representatives.
• the Tribunal has determined that negotiations have reached an impasse.
• 60 days have passed from the date of this order.”
[4] The proposed order set out above is the amended version produced by the CFMEU during proceedings.
Legislative Framework
[5] Section 229 (Applications for bargaining orders) of the Act relevantly provides:
“Persons who may apply for a bargaining order
(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.
Multi-enterprise agreements
…
(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) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.”
[6] Section 230 (When FWA may make a bargaining order) of the Act provides:
“Bargaining orders
(1) FWA 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) FWA is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2) FWA 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) FWA 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).”
[7] Section 231 (What a bargaining order must specify) of the Act relevantly provides:
“(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 FWA 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 FWA 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;
…
(3) The regulations may:
(a) specify the factors FWA 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 FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.”
[8] Section 228 (Bargaining representatives must meet the good faith bargaining requirements) of the Act provides:
“(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.
(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.”
Background
[9] Production and engineering employees of Tahmoor are currently employed under two enterprise agreements, the Tahmoor Washery Workplace Agreement 2006 and the Tahmoor Colliery Enterprise Agreement 2006. Those agreements reached their nominal expiry dates on 1 April 2009 and 3 April 2009 respectively. The CFMEU is the bargaining agent for employees in negotiations with Tahmoor for a new agreement(s). The preferred option for the CFMEU is that there be one agreement to cover all employees and that it incorporate the conditions contained in the two previous agreements.
[10] It appears to be common ground that approximately 50 negotiation meetings have occurred between the CFMEU and Tahmoor during the period 16 October 2008 to 19 January 2010. In July/August 2009 Tahmoor conducted a restructuring exercise which resulted in approximately 100 employees and 70 contractors being made redundant, this constituted around 35 per cent of the total workforce. During the period of negotiations CFMEU members have taken extensive protected industrial action during the period 23 October 2009 and 18 January 2010. Tahmoor maintains that it has negotiated in good faith with the CFMEU but those negotiations have reached a stalemate. Tahmoor now plans to put its proposed enterprise agreement directly to its employees by way of an attendance ballot to be conducted by the Australian Electoral Commission. The CFMEU maintains that the negotiating process and procedure adopted by Tahmoor does not meet the good faith bargaining requirements and that a complete stalemate has not yet been reached in negotiations. It seeks relief in the manner set out in the proposed order (see paragraph 3 supra). Tahmoor opposes the order as sought and wishes to proceed to a ballot of its employees.
Evidence
Mr Timbs
[11] Mr Timbs gave sworn evidence and submitted a witness statement 1. He has held a number of elected positions in the CFMEU and has been employed at Tahmoor for 21 years and is currently engaged as a Fitter/Operator. The two Tahmoor CFMEU Lodges commenced joint negotiations with Tahmoor some six months prior to the nominal expiry dates of the two relevant agreements. It has been the CFMEU’s position that there should be only one new agreement to cover all production and engineering employees of Tahmoor. He has been present at all negotiations with Tahmoor except one. All Tahmoor production and engineering employees are members of the CFMEU.
[12] In his witness statement, Mr Timbs also said, in summary:
- Negotiations between October 2008 and early April 2009 “progressed at a slow but steady pace with a consistent procedure and the company was reliable in its attendance at scheduled meetings … Both parties agreed that the replacement agreement would cover all Tahmoor production and engineering employees and would be based upon existing conditions with any necessary agreed changes and a pay increase.”
- The Company then restructured its operations to a five day production cycle and institute redundancy. “It was at this stage that the process for negotiations was progressively derailed by the company, which ceased bargaining for a couple of months, then cancelled meetings, withdrew from positions agreed in principle, added new claims and took philosophical/ideological objections to the continuation of long term conditions without responding to requests for operational or productivity based substantiation of their positions.”
- Tahmoor has recently taken two new draft proposed agreements to employees by way of small group meetings and individual conversations with employees.
- The CFMEU has put alternative proposals to the Company and made concessions and responded to any matters raised by the Company and attended every scheduled meeting.
- In October 2009, following a protected action ballot order, the workforce overwhelmingly voted for industrial action.
- Tahmoor has consistently attempted to bypass the CFMEU.
- It has become company “practice to postpone/cancel or fail to attend numerous meetings whilst the Union negotiators have constantly attended all meetings as scheduled/rescheduled.”
- Changes in upper management and mine site management personnel have led to new positions being adopted by Tahmoor which have “put back [negotiations] by many months”.
- Tahmoor unilaterally stopped taking part in negotiations between approximately 22 April and 25 June 2009.
- “In recent times, the company has tabled and not moved from two new company proposed draft agreements that it produced without any input from the employees’ bargaining representatives and which did not reflect areas where consensus between the parties had been reached over the course of negotiations.”
- “There have been other occasions when the company has not provided the Lodge Officers with sufficient time off work to prepare for negotiation sessions, perform necessary tasks to progress talks or keep our membership fully informed.”
- Union members have unanimously rejected two draft proposed agreements produced by the Company [known as Options 1 and 2].
- Small group meetings called by the Company to consider Options 1 and 2 were held without Lodge Officers being invited to attend and the meetings held compulsorily during work time. At these meetings the Company adopted a ‘hard sell’ position. The meetings lasted approximately four to five hours each.
- No presentation has been made to the day crew at the CHPP and it is in this crew that all of the Lodge Executives and members of the bargaining team, including himself, are employed. The remaining CHPP crews have received presentations.
- CFMEU members have complained about the small group meeting process and the compulsory nature of that process.
[13] Mr Timbs’ witness statement also contained, replies to the evidence of Mr Baker and Mr Nicholls. I have paid regard to that further evidence and to Mr Timbs’ supporting oral evidence.
[14] In cross-examination, Mr Timbs:
- Agreed that Options 1 and 2 contained for the first time, offers in relations to wages and a new bonus scheme. 2
- Agreed that the changes made to Option 3 [the proposed agreement which Tahmoor wishes to put to a vote of its workforce] are relatively minor. 3
- Said that Option 3 did not contain any agreement relating to contractors. 4
- Was questioned extensively in relation to other sections of Option 3 relating to such matters as arbitration of disputes and a seniority system.
- Agreed that the CFMEU was seeking to revert to the pre-November 2009 negotiating context. 5
- Agreed that Tahmoor had rejected the Union’s proposals. 6
- Disagreed that negotiations between the parties have finished. 7 “We believe that if we were to sit down and continue to negotiate with the company, that we may be able to make further concessions and come to some type of agreement on a lot of these parts that we are apart on.”8
- Was asked if Mr Nicholls had made a clear statement to the CFMEU “that things were going nowhere”. He replied that “It was more that we were not making enough concessions to appease the company.” 9
- Said he believed that union concessions “were starting to close the gap” between the parties. 10
- Agreed that negotiations commenced during a boom and that by the middle of 2009 “the company was in the situation of being stock bound and in a situation of an operation in extreme difficulty”. 11
- Was asked: “And you would agree with me, wouldn't you, that a company in that situation would be irresponsible if it didn't review the way in which it was conducting the operations at its mine and coal washery?” and replied “Yes, that's correct.” 12
- Agreed that changes had occurred in rostering and other organisational areas together with retrenchments. 13
- Did not agree that the economic circumstances of the Company should have affected matters previously agreed ‘in principle’. 14
- Said that he objected to the Company bypassing the Union in communicating with employees concerning Option 3 without the Union being given time to present its side of the story to the workforce. 15
- Agreed that Tahmoor supplied the CFMEU Lodge with a computer and the use of the workshop office. 16
- Was asked: “… the stage many months ago where you say there was in-principle agreement on certain items … that arrangement that you described, that was all subject to there being an ultimate package agreement, wasn't it?” and replied: “Yes.” 17
[15] In re-examination, Mr Timbs said that wages and bonus arrangements were being left by the CFMEU until the end of negotiations 18 and that there had been little negotiating done in relation to wages and a bonus system.19
Mr Webb
[16] Mr Webb gave sworn evidence and tendered a witness statement 20. Mr Webb has worked at Tahmoor Colliery for about 23 years and is currently employed as an underground coalminer in the classification of Electrician and supervises the Development electricians. Much of Mr Webb’s witness statement was supportive of evidence of Mr Timbs concerning the progress of negotiations.
[17] It was broadly Mr Webb’s evidence that the Company had reneged on previously agreed matters, had bypassed the CFMEU by communicating directly with employees, had sought to pressure employees into agreeing with Company’s proposals, to have been unhelpful by cancelling and rescheduling meetings and by changing its personnel involved in negotiations.
[18] Mr Webb’s witness statement also contained replies to the evidence of Mr Baker and Mr Nicholls. I have paid regard to that further evidence and to Mr Webb’s supporting oral evidence.
[19] In cross-examination, Mr Webb:
- Said that he objected to Tahmoor putting material directly to the workforce when “it wasn’t material that we had specifically agreed upon.” 21
- Was asked: “And the company wants to put it to a vote?” and replied: “Well, I don't know how the company can do that, because I mean negotiations, we believe, were nowhere near finished. I can't see how you can present something to a workforce that's not agreed in total and expect them to vote on it.” 22
- Agreed that Tahmoor had given him and his Lodge colleagues a paid day to examine Option 3. 23
[20] In re-examination, Mr Webb:
- Was asked: “Why are there no current negotiations occurring?” and replied: “Well, the company said that there was - they had finished negotiating with us, that we just couldn't give them enough to satisfy the wants of the business.” 24
- Said that approximately 20% of a mine worker’s remuneration at Tahmoor comes from the bonus scheme. 25
- Was asked: “And not having had any negotiations on either the wages or the bonus scheme, do you regard the negotiations as concluded?” and replied: “Absolutely not.” 26
- Was asked: “However, the company is refusing to meet again?” and replied: “The company has said that she's all over red rover, basically.” 27
Mr Baker
[21] Mr Baker gave sworn evidence and tendered a witness statement 28. In summary, it was Mr Baker’s witness statement that:
- He was Tahmoor’s Operations Manager from April 2008 to November 2009 and was responsible for the day to day running of the Tahmoor site, including underground operations and surface facilities. He was also the lead negotiator with the CFMEU in relation to a new enterprise agreement.
- He attended the majority of meetings held with CFMEU representatives during his time as Operations Manager. Most of the meetings took place from 9 am to 2 pm.
- No agreed minutes were taken of meetings between the parties.
- “During the negotiations, provided the CFMEU representatives who were employees continued to perform their normal shifts (that is, did not swap shifts), they were paid their applicable rates for the shift. If CFMEU representatives attended meetings when they were not rostered on, they were paid at overtime rates for the time they attended the negotiation meetings.”
- “Tahmoor Coal also gave the CFMEU representatives the opportunity on a number of occasions of meeting on Tahmoor Coal’s time, that is, without loss of pay or on paid overtime, to discuss the negotiations amongst themselves.”
- There were a number of key issues which Tahmoor coal wished to address during the negotiations. These included:
(a) minimum manning (viewed by Tahmoor Coal as a form of demarcation);
(b) shift senority (that is, allocation to shifts according to seniority);
(c) gate seniority/reverse seniority to apply on retrenchment and for re-employment;
(d) use of contractors;
(e) employee representation/union business (that is, the circumstances in which Tahmoor Coal would and would not pay employee representatives for performing union functions and payment to employees for attending union meetings);
(f) removal of the Memorandum of Understanding which included provisions on contractors;
(g) removal of ‘personal’ leave.”
- Tahmoor kept the CFMEU informed of its business situation and market conditions. The Union did not object to negotiations being placed ‘on hold’ for some two months after April 2009 “while the future of the Tahmoor Colliery was being discussed”. On 10 July 2009 a further negotiation meeting was held. “During this meeting, I advised the CFMEU representatives that, in addition to the business review, the negotiating mandate was under review by the senior management of Xstrata Coal NSW due to changes in business circumstances. These issues resulted in meetings scheduled for 27 and 28 July 2009 being cancelled. The date of 29 July 2009 had only been set aside as a contingency if needed. The CFMEU representatives were given advance notice of the cancellations.”
- On 30 July 2009 a company restructure was announced and also a significant number of redundancies.
[22] Mr Baker’s evidence went on to set out in some detail the history of negotiations between the parties. Mr Baker said: “I ceased employment at Tahmoor Coal on 13 November 2009. At this time, the majority of issues which were outstanding at the commencement of the negotiations wee still outstanding. Some ground had been given by both parties but, of the key issues, only shift seniority and payment for attendance at union business had been agreed in principle.”
[23] Mr Baker’s witness statement also contained replies to the evidence of Mr Timbs and Mr Webb. I have paid regard to that further evidence and to Mr Baker’s supporting oral evidence.
[24] In cross-examination, Mr Baker:
- Agreed that by the end of 2008 it remained his expectation that there would be a rollover of the former colliery agreement into a new agreement. 29
- Agreed that after the Company moved from a 7 to a 5 day operation and the retrenchments have been effected, Tahmoor produced a new set of negotiating guidelines. 30
- Was questioned extensively concerning both the process and progress of negotiations between the parties.
[25] There was no re-examination.
Mr Nicholls
[26] Mr Nicholls gave sworn evidence and submitted a witness statement 31. Mr Nicholls took up the position of Operations Manager at Tahmoor in mid November 2009, replacing Mr Baker. It was, in summary, his evidence that:
- On taking up his position, he was briefed by Mr Baker that agreement had been reached in principle with the CFMEU on some issues such as shift seniority but the parties remained apart on a number of important matters such as contractors, shift and roster arrangements, arbitration of disputes and seniority.
- “Mr Baker also informed me of the process which had been utilised during the negotiations. In summary, the process involved the parties trying to reach an agreement in principle on particular issues. Once agreement in principle had been reached on all issues, the Company would then consider the remuneration to be offered based on what had been agreed in principle. However, there was no final agreement on any specific issue until all issues, including remuneration, had been agreed between the parties.”
- Options 1 and 2 were tabled in a meeting on 27 November 2009. The Options were explained in detail to the CFMEU representatives and a powerpoint presentation was used. “The Union representatives were extremely critical of the presentation which discussed the options. They said words to the effect, ‘this is fucken shit’ and ‘we may as well tear this up’.”
[27] Mr Nicholls’ evidence went on in some detail to examine the process and progress of negotiations. On 12 January 2010 he noted two CFMEU negotiators that little progress had been made on key issues despite approximately ten negotiation sessions/meetings since he took up his position.
[28] It was his view that the CFMEU was not prepared to move on a number of issues which the Company viewed as critical. By January 2010, Tahmoor had reached the conclusion that agreement was not possible on several key issues and that it wanted to put Option 3 directly to employees. “The parties conferred again on Wednesday 20 January 2010 while present in the Sydney premises of Fair Work Australia to see whether there was a purpose and willingness of the parties to meet again on Friday 22 January 2010. Following brief without prejudice discussions between the parties it was again clear that the Union representatives’ position was not acceptable to the Company and that we remained at an impasse. The parties agreed that there was no purpose to be served by meeting again on Friday 22 January 2010.”
[29] Mr Nicholls’ witness statement also contained replies to the evidence of Mr Timbs and Mr Webb. I have paid regard to that further evidence and to Mr Nicholls’ supporting oral evidence.
[30] In cross-examination, Mr Nicholls:
- Said that there had been no presentation of Option 3 yet. 32
- Said that money items in Option 3 are the same as in Option 2. 33
- Agreed that negotiations have not yet occurred on wages and a bonus system. 34
- Was asked why the negotiation meeting on 19 January 2010 had not set any forward negotiating date, and replied: “It set no forward dates because we had reached a position of impasse, where we had gained no traction and hadn't really moved in our discussions since early November.” 35
- Agreed that he had told employees at one presentation that the Company had the option to lock them out if agreement wasn’t reached. 36
- Denied that employees had been told that protected industrial action could lead to closure of the mine. 37
- Was questioned extensively about discussions directly with employees.
- Agreed that a lockout was an option for Tahmoor. 38
- Agreed that he had told employees that a lockout may be selective. 39
[31] In re-examination, Mr Nicholls said that the Company had not taken any ‘response action’ to protected industrial action taken by CFMEU members. 40 He was then asked: “In relation to the matter of negotiation that was raised with you regarding remuneration, was there any basis for negotiation on remuneration in the absence of a meeting of minds on conditions?” and replied: “There was no basis.”41
Submissions
The CFMEU
[32] The CFMEU filed written submissions 42, supported by oral submissions. In summary, it was the CFMEU’s argument that the order should be granted in the terms sought as Tahmoor had not met the good faith bargaining requirements. It was further argued that the order sought is in accordance with s.231 of the Act in that it specifies:
“(i) The actions to be taken by, and requirements imposed upon the respondent to meet the good faith bargaining requirements (s231(1)(a));
(ii) Requirements on the Respondent not to take action that would constitute capricious or unfair conduct that undermines freedom of association and collective bargaining (s231(1)(b)); and
(iii) Actions to be taken by the respondent that deal with the effects of its capricious action or unfair conduct (s231(1)(c)).”
[33] The CFMEU further submits: “The good faith bargaining requirements are set out in s228(1). The CFMEU submits that the Respondent has acted contrary to each of the requirements in s228(1) and seeks orders to rectify that conduct.”
[34] The Union went on to submit that:
- Tahmoor has cancelled or postponed agreed negotiation meetings and ceased meeting to negotiate with the Union between 22 April and 25 June 2009 and again from 19 January 2010.
- Cancelling or postponing meetings is contrary to the good faith bargaining requirements which require bargaining representatives to attend meetings.
- Tahmoor has sent different representatives to meetings and in so doing has frustrated the bargaining process.
- Tahmoor representatives have on occasions lacked authority to negotiate.
- Tahmoor changed the methodology of negotiation documents from 27 November 2009 and then presented Options 1 and 2 as the documents to be discussed.
- Tahmoor has exhibited a lack of genuineness by changing the method of negotiation and withdrawing from previously agreed matters without valid reason.
- Tahmoor has rejected some CFMEU claims on the basis that they are not ‘permitted matters’ and provided this information to employees by conveying that view directly to them.
- “The rejection of claims by bald assertion as to their legal status is contrary to the good faith bargaining requirement that the Respondent give genuine consideration to the CFMEU claims and to give reasons for responses.”
- Tahmoor has not provided adequate responses before rejecting CFMEU claims particularly after Mr Nicholls took over as Tahmoor’s lead negotiator.
- Tahmoor “has undermined freedom of association and collective bargaining by approaching employees directly with its proposed agreements.”
- Tahmoor required employees to attend presentations by Mr Nicholls without prior discussion or advice to the CFMEU. This was not the wish of many members of the CFMEU and Mr Nicholls was reported to have engaged in “aggressive and intimidatory behaviour at small group meetings.”
- Tahmoor has acted so as to deny Officers of the Lodges the opportunity to attend meetings at which Mr Nicholls addressed employees.
- “By its conduct the Respondent has acted capriciously and/or unfairly to undermine the employees right to be represented in bargaining by their union. It has also acted capriciously and/or unfairly to undermine collective bargaining.”
- Tahmoor managers have been engaging individual members of the CFMEU in discussions concerning the possible effects on future employment if protected action continued and employees did not support Tahmoor’s proposed agreement.
- The CFMEU “requires the Respondent to cease direct contact over bargaining matters with individuals or small groups of individuals, verbally or in writing in the absence of their union representatives/bargaining representative.”
- Negotiations would be continuing if the Company had not refused to continue. Wages and bonus payments have not been negotiated and no impasse has been reached “which would justify the employer putting an agreement to the employees. By putting the agreement to the employees the Respondent is not dealing openly and honestly with the CFMEU and is going behind the CFMEU in circumstances where no challenge is made to its bona fides.”
- Tahmoor’s behaviour has had an intimidatory effect on some employees.
- The CFMEU seeks that no ballot of employees be held unless Fair Work Australia “has determined that the negotiations have reached an impasse or 60 days have passed.” A period of 60 days should provide sufficient time to rectify Tahmoor’s conduct and enable the parties to reach a joint agreement which can then be put to employees in a ballot.
Tahmoor
[35] Tahmoor filed written submissions 43, supported by oral submissions. The Tahmoor submissions went on to detail the history of negotiations and I have paid regard to that material.
[36] Tahmoor submits: “The Respondent’s firm view, unchallenged in the cross examination of Mr Nicholls, is that it will not make further concessions on the key issues. It is objectively clear beyond any reasonable doubt that the Applicant and the Respondent are substantially apart on key issues and that neither side is prepared to make further concessions in these circumstances that would provide agreement between the Respondent and the Applicant as bargaining representatives.”
[37] Tahmoor further submits: “Whilst the negotiations have been long and tortuous, the conduct of the Respondent cannot, on any reasonable basis be described as capricious, unfair or in undermining collective bargaining. Section 228 of the Act is explicit that 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.”
[38] Tahmoor submits that the onus is on the CFMEU to prove a failure by Tahmoor to meet the good faith bargaining requirements of the Act. If Fair Work Australia was to find that Tahmoor had not failed to meet the good faith bargaining requirements that this would preclude the making of any bargaining orders. The Union’s case rests on assertions which are not borne out by the evidence.
[39] In any event, the Tribunal should decline to make bargaining orders “on the grounds they will serve no useful purpose given that the Respondent’s proposed agreement is now to be voted on by employees.”
Conclusions
[40] The onus in this case is on the CFMEU to positively convince me that I should issue the proposed order in whole or in part. I am unable to conclude that the Union has done so.
[41] The evidence and materials before me show a history of vigorous, often acrimonious, negotiations between the parties. From my experience, that is not unusual in the coal mining industry.
[42] The prerequisites for making a bargaining order application are set out at s.229(4) of the Act. Broadly, the CFMEU has met those prerequisites. In any event, failure to meet the prerequisites does not preclude me from considering such an application (see s.229(5)).
[43] Section 230(1)(c) requires that I be “satisfied that it is reasonable in all the circumstances to make the order”. Relevantly, section 230(3)(a)(i) requires me to be satisfied in considering whether the good faith bargaining requirements have been met, whether “one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements …”. I am not satisfied that this has occurred in this case.
[44] Section 228 of the Act sets out the good faith bargaining requirements that a bargaining representative must meet. I am not satisfied that Tahmoor has not met those requirements. I note in particular the provision set out at s.228(2)(a) and (b) which says:
“(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.”
[45] The history of negotiations between the parties is long and complex . What is not complex is the conclusion that after November 2009 there has been little if any substantive movement in positions taken by each side. On the question of wages and a bonus payment system I accept Tahmoor’s assertion that the negotiation of such money matters was to be left until all other substantive matters had been agreed upon.
[46] The negotiation process and history does not reveal a pattern of action on Tahmoor’s part that could be held to be aimed at frustrating the process. In particular, the change in lead negotiator from Mr Baker to Mr Nicholls is not a cause for concern given that Mr Baker left the employ of Tahmoor and was replaced by Mr Nicholls. There appears to have been a reasonable handover/takeover procedure adopted in relation to this. It is true that some meetings were cancelled or deferred but when the individual circumstances are analysed, it appears that both sides have done this for good reason.
[47] The break in negotiations between April and June 2009 was a reasonable response to the GFC and the subsequent restructuring, change in operation from seven days to five and the retrenchment of around 35% of the workforce are evidence of this. Tahmoor adopted a different approach to negotiations from June 2009 onwards but this appears to have been an economic response rather than an attempt to derail negotiations. Those negotiations ended in a stalemate between the parties over a number of issues which were considered crucial to both of them.
[48] The CFMEU made much of the change in the manner that the progress of negotiations was set out in documentary form. That issue does not appear to me to be an important one in the scheme of this decision. The Union also strongly objects to the Company’s practice of discussing a proposed agreement directly with employees, either individually or in small groups and claims such actions undermine the role of the CFMEU as the bargaining agent for employees and impacts on freedom of association. In this regard, I respectfully agree with the observations of Vice President Watson in Liquor, Hospitality and Miscellaneous Union v Mingara Recreation Club Ltd 44 (Mingara) where he says:
“[18] In my view, communicating with staff is good management practice. If such communications are not accompanied by a refusal to meet and communicate with a bargaining representative, then in my view there is no breach of the good faith bargaining requirements of the Act.
[19] The obligations under the Act relate to genuine recognition and genuine bargaining activities with other bargaining representatives. They do not preclude concurrent communication and discussions with the employees who may be requested to approve the agreement. In my view, an employer is free to meet with its employees to discuss employment issues, including matters relevant to enterprise bargaining in the absence of bargaining representatives. Widespread communication is to be encouraged – not regulated, diminished or monopolised.”
[49] Given that some forty to fifty meetings occurred between Tahmoor and CFMEU representatives, the Company’s action in communicating directly with employees might be inconvenient and offensive to the CFMEU but it is not improper. This being said, it does appear that the Company made it less than convenient for CFMEU Lodge Officers to attend the small group meetings. That and the general practice adopted by Tahmoor in communicating directly with employees do not constitute an undermining of the CFMEU’s role as bargaining representatives. It is obvious to me that the Company’s wish was to put its view to employees in as unencumbered manner as possible. As Vice President Watson again noted in Mingara, the absence of a bargaining representative at a meeting held between the company and its staff is not inconsistent with the good faith bargaining requirements. 45 I presume that the CFMEU has also held meetings with its members without a Tahmoor representative being present. The holding of small group meetings on paid time was a legitimate device by the Company to ensure maximum access to its workforce.
[50] There was much made during the case of alleged pressure and intimidation by Mr Nicholls in particular in Tahmoor’s discussions with its employees concerning an enterprise agreement. I broadly accept that Mr Nicholls adopted a very aggressive approach in such dealings and probably crossed the line of what is reasonable in such circumstances. However, this is the coal industry and aggressive tactics appear to be almost the norm. I have paid little or no regard to the two individual statements tendered as Exhibits CFMEU 2 and CFMEU 4 as those persons were not called to give evidence.
[51] Tahmoor now wishes to put its proposed agreement (Option 3) directly to its workforce and has scheduled a ballot for 18-19 February. The CFMEU seeks an order that would have the effect of staying such a ballot. The Union only wants a proposed agreement to be put to the workforce which represents an agreed position between it and Tahmoor. It claims that to do otherwise would undermine collective bargaining.
[52] Tahmoor submits that s.255 of the Act precludes the issuing of an order which would cancel or defer the ballot planned by Tahmoor. That section provides:
“255 Part does not empower FWA to make certain orders
(1) This Part does not empower FWA to make an order that requires, or has the effect of requiring:
(a) particular content to be included or not included in a proposed enterprise agreement; or
(b) an employer to request under subsection 181(1) that employees approve a proposed enterprise agreement; or
(c) an employee to approve, or not approve, a proposed enterprise agreement.
(2) Despite paragraph (1)(a), FWA may make an order that particular content be included or not included in a proposed enterprise agreement if the order is made in the course of arbitration undertaken when dealing with a dispute under section 240.
Note: FWA may only arbitrate a dispute under section 240 if arbitration has been agreed to by the bargaining representatives for the agreement (see subsection 240(4)).”
[53] In National Union of Workers v CHEP Australia Limited 46(CHEP), Vice President Watson considered s.255 of the Act in this context. I respectfully agree with his observation that an order to defer or cancel a ballot could be construed to require employees not to approve an agreement and therefore not be compliance with the Act. Like Vice President Watson in CHEP, I am unable to reach a concluded view on that question. However, in the circumstances of this case, I am not prepared to make an order which would cancel or defer the proposed ballot.
[54] Ultimately, section 172(2)(a) of the Act makes it clear that enterprise agreements are entered into between an employer and its employees. In the current context, I agree with Tahmoor that negotiations for an enterprise agreement have reached a stalemate, or using Tahmoor’s words: ‘an impasse’. Option 3, and here I note the evidence of Mr Timbs, is largely a reworking of Options 1 and 2. The CFMEU contends that its members have already unanimously rejected Options 1 and 2. It is free to recommend to its members that Option 3 be rejected in the forthcoming ballot. Given that Tahmoor’s employees all belong to the Union, a rejection of Option 3 would itself provide an impetus for negotiations to recommence.
[55] In short, I see no reason on the evidence and materials before me to act to defer or cancel the proposed ballot even if I possess the power to do so. I also am not satisfied “that it is reasonable in all the circumstances to make the order” sought.
[56] All in all, and after considering all the materials and evidence available to me, I refuse the CFMEU’s application and dismiss it.
COMMISSIONER
Appearances:
J Gray for the Construction, Forestry, Mining and Energy Union.
J Murdoch SC, with A Morris for Tahmoor Coal Pty Ltd.
Hearing details:
2010.
Sydney:
January 25, 29.
1 Exhibit CFMEU 1.
2 Transcript PN239.
3 Transcript PNs262-263.
4 Transcript PN307.
5 Transcript PN332.
6 Transcript PN334.
7 Transcript PN336.
8 Transcript PN339.
9 Transcript PN347.
10 Transcript PN348.
11 Transcript PNs374-375.
12 Transcript PN376.
13 Transcript PN378.
14 Transcript PNs386-387.
15 Transcript PNs391-394 and following.
16 Transcript PNs399-405.
17 Transcript PNs410-411.
18 Transcript PNs418-419.
19 Transcript PN457.
20 Exhibit CFMEU 3.
21 Transcript PN659.
22 Transcript PN662.
23 Transcript PN679.
24 Transcript PN806.
25 Transcript PN815.
26 Transcript PN817.
27 Transcript PN818.
28 Exhibit Tahmoor 2.
29 Transcript PN898.
30 Transcript PN916.
31 Exhibit Tahmoor 4.
32 Transcript PN1044.
33 Transcript PNs1046 and 1047.
34 Transcript PN1049.
35 Transcript PN1051.
36 Transcript PN1053.
37 Transcript PN1058.
38 Transcript PN1118.
39 Transcript PN1122.
40 Transcript PN1146.
41 Transcript PN1147.
42 Exhibit CFMEU 5.
43 Exhibit Tahmoor 7.
44 [2009] FWA 1442.
45 Ibid at [17].
46 [2009] FWA 202.
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