CPSU, the Community and Public Sector Union v The Commonwealth of Australia (Acting through and represented by the Australian Electoral Commission and/or the Minister Assisting the Prime Minister for the Public Service)

[2016] FWC 2615

[2016] FWC 2615

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

CPSU, the Community and Public Sector Union
v
The Commonwealth of Australia (Acting through and represented by the Australian Electoral Commission and/or the Minister Assisting the Prime Minister for the Public Service)
(B2016/46)

COMMISSIONER WILSON MELBOURNE, 27 APRIL 2016

Application for a bargaining order.

[1] Staff employed at the Australian Electoral Commission (AEC) are presently employed pursuant to the terms of the Australian Electoral Commission Enterprise Agreement 2011–2014 (the 2014 Agreement) which had a nominal expiry date of 30 June 2014. Bargaining for a replacement agreement has been both protracted and, to date, unsuccessful, with the Community and Public Sector Union (CPSU) formally contacting the AEC on or about 18 December 2013 seeking the commencement of bargaining for a new agreement and the AEC issuing a Notice of Employee Representational Rights to affected employees on 28 July 2014.

[2] Since that time there has been considerable interaction between the CPSU and the AEC relating to the terms of a new agreement. Notwithstanding that agreement in principle had not been reached by the AEC with the CPSU, the AEC put a proposed enterprise agreement to employees in February 2016, which was not approved by employees in the subsequent ballot.

[3] The proceedings before me are an application by the CPSU for bargaining orders pursuant to the terms of Chapter 2, Part 2 – 4 of the Fair Work Act 2009 (the FW Act) for reason of an alleged failure by the AEC to comply with the good faith bargaining requirements set out in s.228. The orders sought by the CPSU are in the following terms;

“Pursuant to s.230 of the Fair Work Act 2009, the Fair Work Commission orders:

1. The Bargaining Representatives for the proposed agreement in the AEC will meet to advance their claims, and respond to the claims of the other bargaining representatives and give reasons, in a manner consistent with the good faith bargaining requirements, with the first such meeting to occur within 7 days from the date of this Order, and at least one further such meeting to occur 14 days thereafter;

2. A representative of the Australian Public Service Commissioner who has the capacity to make decisions about the application of the Workplace Bargaining Policy 2015 to bargaining proposals and to give reasons, will be present during all further bargaining meetings;

3. Where the Australian Public Service Commissioner has referred a matter arising in bargaining to the Minister Assisting the Prime Minister for the Public Service under the Workplace Bargaining Policy 2015, a representative of the Minister Assisting the Prime Minister for the Public Service will be present at any further bargaining meetings in which such a matter is scheduled to be discussed.

4. If the Respondent’s response to a proposal made by the CPSU is based on a decision made in accordance with the 2015 Bargaining Policy, when giving reasons for the Respondent’s response it will:

a) explain the application of the 2015 Bargaining Policy to the proposal;

b) where appropriate to aid understanding, such explanation shall include the provision of information about why a particular proposal of the CPSU may be considered to be inconsistent with the 2015 Bargaining Policy, and why, in the view of the Respondent, it cannot be agreed to.

5. During the first meeting from the date of this order the parties shall discuss the CPSU’s position as expressed in its draft workplace consultation clause.

6. In further bargaining meetings pursuant to these orders the parties shall discuss those proposals previously rejected by the Respondent in reliance on the Workplace Bargaining Policy 2015.

7. The Respondent shall not take steps pursuant to the Fair Work Act 2009 (Cth.) ss 180 & 181 in the Australian Electoral Commission (AEC) for a period of at least 30 days from the date of this order, except by agreement between the parties.

8. A copy of this Order is to be provided to each employee who would be covered by the proposed agreement.

9. This Order will come into operation from today’s date and will remain in operation until such time as it ceases to operate in accordance with s 232(b) of the Act.” 1

RELEVANT LEGISLATION

[4] The FW Act deals with applications for bargaining orders, and when and how orders may be made, in Chapter 2, Part 2 - 4, Division 8, which provides the following;

Division 8—FWC’s general role in facilitating bargaining

Subdivision A—Bargaining orders

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.

(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.

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.

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 – [omitted]

233 Contravening a bargaining order – [omitted]”

SUBMISSIONS AND EVIDENCE

[5] The CPSU argues that the progress of bargaining has been impeded because of the failure of the AEC to either give genuine consideration to proposals made by the CPSU for the agreement, which would be a breach of the good faith bargaining requirements in s.228 (1)(d); and further that the AEC has failed to disclose relevant information about those matters which would be against the requirements of s.228(1)(b).

[6] Evidence was received in the matter, along with the parties’ submissions, from David Stiller, a CPSU Organiser and its bargaining advocate, leading the union’s negotiations for a new agreement, and Kevin Kitson, the AEC’s First Assistant Commissioner, Network Operations, who has also been extensively involved in the negotiations for a new agreement, and has been the AEC’s chief negotiator.

[7] The failings identified of the AEC by the CPSU relate to the AEC’s consideration of and responses to proposals for the terms of a consultation clause, and the AEC’s consideration of and responses to the union in relation to four other clauses, being to reject the CPSU’s proposals only on the basis that they are inconsistent with the Government’s bargaining policies. 2 The relevant matters, referred to in this decision as the Additional Clauses, are;

• a domestic violence leave clause;



• a delegates’ rights clause;



• a NAIDOC/ceremonial/cultural leave clause; and



• a performance management procedural fairness clause.

[8] The union argues that genuine consideration has not been given to the CPSU’s proposals in relation to these matters for the reason, it was alleged, that the AEC representatives at the bargaining table had advised the CPSU in bargaining that the Electoral Commissioner himself “cannot conclude an agreement without the approval of the APSC” 3, being a reference to the Australian Public Service Commissioner.The CPSU’s evidence and submissions before the Commission went both to the framework of bargaining under which the AEC operates, as well as to the conduct of negotiations.

[9] The CPSU wants from these proceedings a process by which fully authorised officers of the APSC or the Minister Assisting the Prime Minister for the Public Service (the Minister) are brought to the bargaining table.

[10] On the part of the AEC, they consider that they have fully and adequately articulated their position to the CPSU on most matters and that there is now but a short distance to travel in relation to the final terms of a relatively small number of clauses. The AEC considers, it appears, that these matters can be dealt with quickly, and that soon thereafter it will be in a position to again put a proposal to staff for an enterprise agreement through another ballot. It both expects and desires to do this before writs for a federal election are issued, after which the AEC can expect to be fully focused upon preparation for and the conduct of a general election.

Consultation clause

[11] The consultation clause that is the subject of discussion between the parties is the term proposed for the replacement enterprise agreement in order to satisfy the requirements of s.205 of the FW Act. That section requires an enterprise agreement to include a term that would require the AEC to consult employees “about major workplace changes that are likely to have a significant effect on the employees” with the term also to allow “for the representation of those employees for the purposes of that consultation”. In the absence of an enterprise agreement not including such a consultation term the Model Consultation Term provided for in the Regulations 4 is taken to be a term of the agreement.

[12] There has been significant discourse between the parties about what would be a suitable consultation term, with the AEC putting to the CPSU that the requirements it is bound to in the form of the Australian Government’s Workplace Bargaining Policy 2015 (the 2015 Bargaining Policy) mean that the AEC must ensure its consultation term reflects the model term without any additional arrangements. 5

[13] Mr Stiller’s evidence is that the CPSU provided the AEC with a draft consultation clause in December 2014. That clause was then responded to by the AEC in July 2015 with the tabling of a draft enterprise agreement containing a draft consultation clause. Mr Stiller’s evidence is that this draft “included many of the elements sought in the CPSU proposed clause”. 6 Shortly after, on 28 July 2015, the AEC revised what it had provided to the CPSU. It provided a further revised consultation clause, along with other revisions to its preferred draft, on 29 September, which was then the subject of discussion during the bargaining meeting on 1 October 2015. A few weeks later, on 13 November 2015, the CPSU responded with a revised position to the AEC which was also the subject of bargaining during a meeting on 24 November 2015.

[14] The evidence of Mr Kitson broadly confirms this chronology but also indicates that by late 2015 assertions were being made to the AEC by the CPSU about alleged failures of the good faith bargaining requirements as they apply to consideration of the consultation clause. The evidence also appears that the AEC’s proposed clause, as it stood in November 2015, did not materially develop between then and the time that the proposed enterprise agreement was put to a staff ballot.

[15] Since that time, and more recently, the clause has been the subject of further bargaining, with the AEC’s proposal being put to the CPSU as recently as 14 April 2016, the day before the hearing of this matter. 7

[16] The complaint made by the CPSU about bargaining over the consultation clause is, in essence, that the AEC representatives were both instructed by the APSC about what could be proposed for agreement on the subject, which failed to genuinely consider the CPSU’s proposals; as well as failing to explain to the CPSU their reasoning when they did return to the CPSU and express what could be agreed to.

Additional Clauses

[17] There is less material before me in relation to the Additional Clauses, however such material as is before me suggests firstly that the CPSU desired that the replacement agreement continue to have clauses on the topics in the enterprise agreement, because they are contained within the 2014 Agreement. The AEC does not wish to have the Additional Clauses be the subject of clauses within a new agreement, for reason of its concern that the terms are inconsistent with the requirements cast by the 2015 Bargaining Policy; that the topics will be satisfactorily dealt with in a “miscellaneous leave” clause 8; and that discussions on the subject matters continues, albeit with the apparent focus, particularly from the point of view of the AEC, being upon whether the detail of the matters can be adequately dealt with in workplace policies which do not form part of an enterprise agreement.

[18] The evidence before me was that bargaining on these subject matters had occurred on the day immediately prior to the hearing and that further discussion of the subjects was expected within the next short period as well.

Evidence

[19] The CPSU invited me to find that Mr Kitson’s evidence should not be accepted. In particular;

“… Mr Kitson was very careful to try and qualify everything he said, and in my submission the Commission would take the view that Mr Kitson was being a bit too careful with his advice, he was careful to craft with his evidence, he was careful to craft his evidence, in my submission, to be consistent with the case that he knows is being run here. It's not credible given the objective realities in which he was operating.” 9

[20] I have carefully considered this submission about Mr Kitson’s evidence and am not prepared to find other than that his evidence is capable of acceptance by me. His demeanour while giving evidence was to carefully consider the propositions put to him, whether adverse or not, and to respond openly without hesitance, prevarication or qualification. When he did not know an answer he said so, and when he wanted to put a contrary position to that within the question asked of him he did so without embarrassment.

[21] That he chose his words carefully is hardly surprising given that he was bargaining on behalf of his agency head and was giving evidence about policies flying from decisions of executive government. Speaking of those matters without care would itself likely leave him open to criticism whether in this forum or elsewhere.

[22] Mr Stiller’s evidence is also generally capable of acceptance. I discerned his evidence also to be open and truthful.

[23] In the context of the oral evidence given, I prefer Mr Kitson’s evidence in relation to the AEC’s conduct and its motives. His evidence in these regards is plausible and capable of acceptance, and to a greater extent than not, corroborated by the documentary evidence.

CONSIDERATION

[24] Through its application, the CPSU’s primary argument is that the AEC did not meet the requirement in s.228(1)(d) of the FW Act which requires a bargaining representative to give genuine consideration to the proposals of others and give reasons for their responses to the proposals. In this regard it is submitted that the effect of the 2015 Bargaining Policy is that bargaining representatives are not permitted to consider proposals which do not comply with the policy and/or which the APSC instructs cannot form part of the agreement. 10

[25] The union’s secondary argument is that there was a failure to meet the provisions of s.228(1)(b), which require a bargaining representative to disclose relevant information (other than confidential or commercially sensitive information) in a timely manner. The alleged failure in this regard is that information was not provided which would allow the CPSU to understand the position of the APSC and the Minister in response to proposals put by the CPSU. 11

Public Sector Employing Authority

[26] The case advanced by the CPSU is that the AEC did not have any capacity to reach or apply to the CPSU’s proposals its own assessment of the 2015 Bargaining Policy, or indeed its predecessor, the Australian Government Public Sector Workplace Bargaining Policy, referred to as the 2014 Bargaining Policy. 12 The CPSU further submits that the context of the bargaining in which it finds itself is such that responses to the CPSU proposals are;

“… determined in part by the AEC, but more significantly by the APSC in accordance with the 2015 Bargaining Policy and by the Minister Assisting the Prime Minister on the Public Service. Both the APSC, actually, and the Minister Assisting the Prime Minister on the Public Service, potentially, make decisions on proposals put by the CPSU without those reasons being provided by the AEC to the CPSU.” 13

[27] Coupled with this proposition is the evidence referred to above which, in context, is to be taken as a complaint firstly that the AEC had to defer to others for instructions about matters to be proposed or agreed within bargaining and secondly that, likely as a consequence of the first, it was then unable, or simply failed, to explain the decision it relayed.

[28] These propositions put by the CPSU, together with its proposed orders, sit within its preferred construction of the FW Act in which the AEC, being a part of the Commonwealth of Australia, is merely one “employing authority” in respect of employment within the AEC and which is now the subject of bargaining, and further that the FW Act contemplates that there are other employing authorities which may be involved for the purposes of bargaining and which the evidence shows that they are. 14

[29] Bargaining orders made by the Commission pursuant to Part 2 – 4, Division 8 of the FW Act may be made against bargaining representatives and must specify the actions to be taken by them, as well as specifying any requirements imposed upon the bargaining representatives for the proposed agreement. 15 As a result, should the construction put forward by the CPSU not be correct and neither the APSC nor the Minister are found to be a bargaining representative, it follows that orders could not be made specifying actions to be taken by them or requirements imposed upon them.

[30] Section 795 of the FW Act deals with public sector employers and the necessity for them to “act only through the employees employing authority acting on behalf of the employer”. The section provides, so far as is relevant;

795 Public sector employer to act through employing authority

Employer to act through employing authority

(1) For the purposes of this Act and the procedural rules, the employer of an employee (a public sector employee) employed in public sector employment must act only through the employee’s employing authority acting on behalf of the employer.

Acts done by or to employing authority

(2) For the purposes of this Act and the procedural rules, anything done by or to a public sector employee’s employing authority acting on behalf of the employee’s employer is taken to have been done by or to the employer (as the case may be).

Application of subsections (1) and (2)

(3) Subsections (1) and (2) apply despite any other law of the Commonwealth, a State or a Territory.

(4) Meaning of public sector employment – [omitted]

[31] The part of the FW Act in which s.795 appears, Part 6 – 5, prescribes that the terms “employee” and “employer” respectively mean a national system employee and employer. That term in turn is dealt with in s.14(1) of the FW Act which provides that the Commonwealth is a national system employer.

[32] The combination of the foregoing section and the Fair Work Regulations 2009, in Regulation 6.09, allows the view that there may be several employing authorities who may make decisions about any particular employee or circumstance. The Regulation and the relevant part of the Schedule referred to within the regulation provides that the “employing authority or authorities” in respect of;

“An APS employee, within the meaning of the Public Service Act 1999, performing duties or employed in a particular Agency as defined in the Public Service Act 1999”

is, or are;

“The Public Service Minister, within the meaning of the Public Service Act 1999

The Agency Minister, within the meaning of the Public Service Act 1999

The Agency Head, within the meaning of the Public Service Act 1999

An APS employee, within the meaning of the Public Service Act 1999, authorised by the Agency Head” 16

[33] The scheme of the Public Service Act 1999 is such as to reinforce the proposition that there may be several employing authorities in respect of particular employment; see for example s.20.

[34] I therefore accept the proposition that the correct construction of s.176 of the FW Act, when it refers within s.176(1)(a) to “an employer that will be covered by the agreement” being a bargaining representative for the agreement, is, for the purposes of this situation, a reference to the employer being the Commonwealth, with the employer acting either through an employing authority; or through another person appointed in writing as a bargaining representative pursuant to the provisions of s.176(1)(d) of the FW Act. Consequently, any one of the four categories referred to within schedule 6.3 of the Fair Work Regulations 2009 may be an employing authority so far as it is concerned with bargaining.

[35] Notwithstanding the provisions in the FW Act relating to public sector employment, the provisions of the FW Act dealing with bargaining representatives do not restrict who is a bargaining representative of an employing authority. Section 8 of the Public Service Act provides that the Act has effect subject to the FW Act and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[36] On the one hand a bargaining representative is “an employer that will be covered by the agreement” (s.176(1)(a)), with the special circumstance of that entity being required by s.795(1) to act only through one of the employing authorities referred to above. Further, it may also be a person appointed in writing by an employer to be a bargaining representative for the proposed agreement (s.176(1)(d)). Such a person might be an employee of the employer; a lawyer; an employee of a consultant or employer association, or someone else.

[37] Plainly several individuals, perhaps many, could be an employer bargaining representative for any bargaining. Such situation is not a feature that would only arise in the public sector.

[38] The language of section s.176 is such that an employer is, by automatic effect, a bargaining representative. With a public sector employer acting only through the employee’s employing authority, it follows that each of the employing authorities are bargaining representatives for the purposes of s.176(1)(a). However it must be noted that it very commonly will be that many employers are not directly engaged in bargaining. In many cases, the only person or people at the bargaining table for the employer will be those appointed under s.176(1)(d). The provisions of s.795 do not disturb that situation and there is no greater reason to expect that an employing authority will be any more likely to be directly at the bargaining table in respect of public sector bargaining than a private sector Chief Executive Officer or Board Chair. While a public sector employer will act only through the employee’s employing authority, a bargaining representative for the purposes of s.176 will hold that authority because they come to that situation because of the circumstance in either s.176(1)(a) or (d).

[39] Despite that situation, “an employer” is still in all cases a bargaining representative and is thus bound by the good faith bargaining requirements as much as the representatives of the employer. The conduct of “an employer” can be called to account under the good faith bargaining requirements set out in s.228 even though they do not attend the bargaining room because the discourse of bargaining is being undertaken by others. Many forms of conduct away from the bargaining table could be contemplated as failing to meet the good faith bargaining requirements.

[40] However, as with complaints about the conduct of persons actually at the bargaining table, complaints about the conduct of those not at the table will be viewed objectively.

Good faith bargaining requirements generally

[41] The question in this matter then is whether any of the bargaining representatives did not meet the good faith bargaining requirements.

[42] Bargaining in this matter is for the purposes of a replacement agreement to cover only employees employed by the AEC. The Notice of Employee Representational Rights, issued on 28 July 2014, refers to that coverage being “all AEC non-Senior Executive Service staff, employed under the Public Service Act 1999”. 17 Resolution of the question posed above, of whether any of the bargaining representatives did not meet the good faith bargaining requirements, requires a consideration of the interactions of all involved in the course of bargaining, and whether they have complied with the good faith bargaining requirements. Resolution of the question will require an objective consideration of the conduct of the parties, including towards each other and the matters in dispute.

[43] Determination of whether a party has complied with the good faith bargaining requirements is dependent on all the circumstances of the matter; per s.230(1)(c). In relation to s.228 of the FW Act generally, the Federal Court has held the following about what may be compliance or conformity with the requirements;

“The outer limits of the conduct which falls within s 228 is largely dependent upon factual matters which will undoubtedly vary from one situation to another. Certainly, it is neither possible nor prudent to attempt any exhaustive statement as to what will constitute compliance with the “good faith bargaining requirements” in the present statutory context.” 18

[44] In the Full Bench matter preceding the Federal Court’s consideration above, earlier authority that former legislation did not require parties to make concessions in negotiations was referred to with it being observed;

“Although s 170QK contained some provisions somewhat similar to s 228 of the Act, it did not contain any provision equivalent to s 228(2). Notwithstanding this, the Full Bench in Asahi found that the terms of s 170QK of the IR Act did not extend to requiring the parties to make concessions in negotiations. The Full Bench said:

… An Agreement is normally preceded by negotiation. Negotiation normally involves the making of concessions so as to achieve an agreement. The Commission has no power to order a negotiating party to make a concession. In the ABC case (at 12) the Commission said:

Whilst the Commission’s role is to facilitate an agreement this should not involve requiring that concessions be made by a negotiating party.

An agreement cannot be reached with a person who does not want to agree and negotiations for an agreement cannot take place with a person who does not want to negotiate.

It follows from the ordinary meaning of the word “negotiate” that an order that a person negotiate carries the inference that the Commission is ordering that concessions be made. Accordingly such an order is beyond power. Therefore, the Commissioner’s order that Asahi “shall negotiate … with the AFMEU” was beyond power.

Although the concept of not requiring negotiating parties to make concessions has been adopted in s 228 of the Act, there are many differences between the current legislative scheme and that under the IR Act.” 19 (references omitted)

[45] Section 228(2) elaborates that there is neither a requirement for a bargaining representative to make concessions during bargaining, or to reach agreement on the terms that are to be included in the agreement.

[46] Section 228(1)(d) obliges a bargaining representative to give “genuine consideration to the proposals of other bargaining representatives for the agreement, and [give] reasons for the bargaining representative’s responses to those proposals”.

[47] In the matter of Endeavour Coal v APESMA, later the subject of judicial review by the Federal Court, the Full Bench found that “[i]n effect the parties must take reasonable steps and make reasonable efforts towards making an enterprise agreement” and that;

“The objects of the Act and Pt 2-4 support an interpretation of s 228 as requiring parties to approach bargaining on the basis that they are to attempt to conclude an enterprise agreement. The object of the Act as set out in s 3 includes reference to: “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations …” Good faith bargaining is intended to bring about enterprise agreements and the parties are under an obligation to try and conclude an agreement. The objects of Pt 2-4 (which contains s 228) support this view. Subsection 171(b) states that one of the objects of the Part is to: “enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through (i) making bargaining orders …” In general the legislative scheme might be described as one which seeks to promote agreement making but which does not compel parties to make concessions or to reach agreement. There is nothing inconsistent about encouraging parties to make agreements — and imposing an obligation upon them to try to do so — but at the same time not compelling parties to make concessions in bargaining. An agreement remains what the name implies.” 20

[48] Further, the Full Bench found that participation in the bargaining process without making any substantive contribution to the possible content of an enterprise agreement or to put proposals of its own left it open to the Commission in first instance;

“… to conclude that the good faith bargaining requirements envisioned by s 228(1)(d) were not being met by the Company in that it was not giving “genuine consideration” to the proposals being put by APESMA.” 21

[49] Upon consideration in the Federal Court, Flick J confirmed that proposition with the finding;

“But, in the course of “bargaining”, if Endeavour Coal sits “mute” and merely reject proposals or terms which are being advanced for its consideration, it may fail to meet the “requirements” set forth in s 228(1). A party who participates in bargaining that is subject to the requirements of s 228(1) must genuinely participate in the bargaining process; it cannot adopt the role of a disinterested suitor, only rejecting offers and proposals made by other “bargaining representatives”.” 22

[50] The same matter laid out a practical application of the legislation; one in which the limits of the duties held of giving genuine consideration and giving reasons for responses will be tempered by the direct circumstances of the situation, varying from case to case;

“Construed in its entirety, the “good faith bargaining requirements” impose conditions which are “called for or demanded …”. That which will satisfy those “requirements” will vary from case to case. At the outset of bargaining, one party’s “bargaining representative” may consider it in that party’s best interests to merely solicit or determine that which is being sought by another party. It may be that what the other party seeks is less than or within the range and scope of what may be on offer. In such cases, bargaining may well be completed quickly — one party seeking less than the other is prepared to give with both parties presumably happy to reach agreement. In other circumstances, one party’s representative may again attempt at the outset to merely ascertain what the other party is seeking. The bargaining may proceed by one party’s “bargaining representative” repeatedly making requests which may be repeatedly rejected. But at some stage during the process there may come a time when the combined effect of the “good faith bargaining requirements” requires the proffering of a counter-proposal. To progress “bargaining” in compliance with s 228, participants may be required to disclose what they may be prepared to tentatively accept — even if all that has so far been put to them for consideration has been rejected. A party may be required to advance for consideration a proposal which it may be prepared to accept, albeit a proposal which may well be subject to qualifications or reservations. The point in time when a “bargaining representative” may be required to positively respond to proposals being advanced for its consideration — or to put its own proposals — will vary from case to case. It is both impossible and imprudent to devise a set course which all bargaining must follow.” 23

[51] In relation to s.228(1)(b), concerning the provision of information during bargaining, the Commission has noted that the reason for disclosure of information is to allow the other bargaining representative(s) to give consideration to the position being advanced; per National Union of Workers v Defries Industries Pty Ltd. 24Further, parties are required to disclose relevant information in a timely manner, subject to it not being confidential or commercially sensitive; per Australian Nursing Federation v Victorian Hospitals' Industrial Association.25A critical part of the bargaining process is for parties to disclose their bargaining proposals and responses; with bargaining being a process and not a unilateral act of one party to present a proposal to the other on a take it or leave it basis; per National Union of Workers v Linfox Australia Pty Ltd.26In some cases a party may be required to compile information.27

[52] The Commission’s approach to determination of what is confidential or commercially sensitive will involve a decision on a question of fact; per Endeavour Coal v APESMA. 28The context of the matter will be relevant to such consideration.29Information may be confidential because it pertains to persons other than the one who has been asked to provide it; per APESMA v Peabody Energy Australia Coal Pty Ltd.30

[53] It has also been held that a relationship between one employer and other employers, being contractors to the first, may give rise to a commonality of interests and that it becomes in the interests of the contractor to ensure their client is satisfied with any agreement that they may make; per Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 31 (Esso). Whereas the AEC sought to rely on that proposition, the CPSU distinguished its circumstances from the proposition laid down in that matter by the Full Bench.

The CPSU’s application generally

[54] In this matter the allegations of contravention of the good faith bargaining requirements go, as referenced above, firstly to a failure by the AEC to genuinely consider the CPSU’s proposals or to provide sufficient reasons for the positions it had articulated in bargaining. Secondly, the allegations go to whether relevant information has been disclosed.

[55] The matters in contention are the ones referred to above; that is, the bargaining over a consultation clause and the Additional Clauses, dealing with the topics of domestic violence leave; delegates’ rights; NAIDOC/ceremonial/cultural leave; and performance management procedural fairness.

[56] The AEC objects that, as matter of form, the CPSU has not validly brought forward its objections in relation to the Additional Clauses. About this, the AEC submitted that the CPSU had only previously raised good faith bargaining objections in relation to the consolation clause, and not the Additional Clauses. The AEC further submits that the subject matter of the Additional Clauses is not referred to within the CPSU application, and that the first time it was raised as an alleged failure to meet the good faith bargaining requirements was in Mr Stiller’s statement, filed on 13 April 2016. 32

[57] The AEC concedes that the Commission has the discretion in s.229(5) to dispense with the notice requirements if satisfied it is appropriate to do so. About this proposition, the AEC argued that not only have the Additional Clauses not been raised as a failure to meet the good faith bargaining requirements but that there continues to be bargaining in relation to those matters, as recently as the day before the hearing. 33

[58] I do not have material before me as to the CPSU’s log of claims on the Additional Clauses.

[59] It is recognised that eventually bargaining may come to an end for a reason other than that all matters in question have been agreed between the parties. That is, bargaining may conclude through a situation other than agreement. That may be because one or other of the bargaining representatives says that they cannot meet the claims of the other and that there is no further debate to be had on the matters. That, in itself, is neither unusual or a breach of the good faith bargaining requirements.

Consultation Clause

[60] In respect of the debates over the consultation clause, the evidence leads to a finding that there has been genuine consideration on the part of the AEC to the matters sought by the CPSU. Demonstrably the CPSU wanted a clause that bound the AEC to consult about matters before decisions were taken. The proposal it provided in November 2014 is lengthy and surrounded these “principles”;

“1. AEC Employees and their Representatives which may be the union shall have the right to be consulted on matters that affect employees. This shall occur where ever possible prior to the making of any final decision and provide a genuine opportunity to influence the decision-maker.

2. In unusual circumstances, when consultation prior to the decision being made is not possible the, AEC will undertake to commence consultation as soon as practicable after the time that the decision was made.

3. Employees have the right to be represented in consultative processes, including by their union, and that the AEC will deal with that representative in good faith.” 34

[61] The AEC responded to the proposal in December 2014, advising that its “preference” was to incorporate the Model Clause prescribed in the Fair Work Regulations 2009. 35

[62] Over the following year, there was only slow progress on the content of the clause. The evidence though shows a genuineness to bargaining in respect of the consultation clauses on both sides of the table. On the part of the AEC it shows there was an endeavour to walk between the limits of the 2014 policy and the CPSU’s proposals which appear not to have shifted from the principles document referred to above.

[63] A proposal was put by the AEC to the CPSU on 20 July 2015 36 which appears to have been drafted on the part of the AEC to comprehensively address, at least from the perspective of what they might be prepared to agree, the earlier principles based documents provided by the CPSU. That AEC document was amended later in July 2015 which contains tighter drafting that one might expect an employer such as the AEC to put forward, apparently drawing on advice received from the APSC.37 The drafting within that document was further updated in September 2015.38

[64] Both versions allowed for consultation with employees about matters that significantly affected them. Both specified the consultation would occur after a definite decision to introduce major change within the AEC. A further amended proposal was put to the CPSU by the AEC on 1 October 2015. The principal change was to the following clause, with certain words struck out by the AEC;

“8 Principles of consultation and communication

8.1 The Electoral Commissioner will consult Employees in accordance with clause 9 on workplace matters that significantly affect them, as Employees are responsible for delivering business outcomes and implementing major changes.” 39 (strike out in original)

[65] A marked up comment included in the document indicated the following about the struck out words;

“Comment [AA2]: 29/09/15: In order to comply with section 7.1(a) of the APS Bargaining Policy, the AEC has amended clause 8.1.” 40

[66] The workplace bargaining policy to which the comment refers is apparently the 2014 Bargaining Policy. Clause 7.1 of the policy is in lengthy terms, however it is principles based. To the extent that it is relevant it provides the following terms;

“7.1 Streamlined enterprise agreements

7.1.1 Agencies will be required to demonstrate that a proposed enterprise agreement does not contain clauses which may unduly restrict management's ability to operate efficiently and effectively.

7.1.2 Enterprise agreements should be straightforward and user-friendly documents that simply set out the entitlements employees have in their employment in the workplace, and provide maximum flexibility for agencies to carry out their functions.

…

Consultation term

7.1.10 Agencies should seek to implement the model consultation term, or an equivalent term, without any additional prescriptive and/or restrictive arrangements that would confine managerial decision-making and the operations of the agency. For example, enterprise agreements should not include any requirements to consult on the engagement of employees or contractors.

…” 41

[67] The proposition that the struck-out words needed to be removed for reasons of consistency either with the policy or the model term appears, at least at this distance from the direct bargaining, to be somewhat odd, since striking the words out appears to not only broaden the effect of the clause rather than reigning it in, but to omit words similar to those contained within the Model Clause which refers to there being consultation over significant change “that is likely to have a significant effect on the employees”. 42Irrespective though of that oddity, there appears to have been no lack of genuine endeavour on the part of the AEC at that time to work towards meeting the CPSU’s stated objectives in respect of the consultation clause.

[68] Having received the October 2015 amendments, the CPSU put forward its own proposed amendments for the entire proposed agreement, including putting forward that restriction of the proposed consultation clause to circumstances where the AEC has made a definite decision was not appropriate because;

“Wording is not in the context of what the standard dictionary definition of consultation, where two parties have input to determine an agreeable outcome.” 43

[69] In November 2015, there were further exchanges between the parties on the consultation clause, including when Mr Kitson emailed Mr Stiller of the CPSU on 11 November 2015 and advised the following position;

“Streamlining the consultation term

In accordance with clause 29 of the APS Bargaining Policy, the AEC is required to ensure that the EA does not include or impose any restrictive work practices that confine the operations of the agency. To satisfy the policy requirements, the AEC must ensure that its consultation term accurately reflects the model term in the Schedule 2.3 of the Fair Work Regulations 2009 (Cth) without any additional arrangements. The AEC has unequivocal advice that changes to this clause will not succeed in achieving APSC approval and we do not intend to cause further delay by continuing to contest in vain.

That being said, and as has been our practice to date, the AEC remains committed to effective consultation with employees; and their representatives (if applicable on major changes and/or changes to regular rosters or ordinary hours of work. This includes our commitment to maintain the AEC Consultative Forum as a mechanism for consulting with employees and/or their representatives on the operation of the EA and changes to policies that support the EA.” 44

[70] The same correspondence advised an intention to proceed to a ballot. There were then exchanges between the parties about the CPSU’s contentions of failures by the AEC to comply with the good faith bargaining requirements. An unsuccessful ballot on a proposed enterprise agreement was conducted in February 2016. 45

[71] Following the ballot’s failure bargaining resumed, and the bargaining parties returned to the subject of the consultation clause in April, if not earlier.

[72] The CPSU put forward its proposed clause in a bargaining meeting on 5 April 2016, with the proposal in the following terms (noting there are two clauses numbered “8.2”);

“Proposed Clause

8 Principles of consultation and communication

8.1 The AEC will consult with staff about impending changes, decisions or other issues that significantly affect Employees by:

• providing all relevant information to Employees on a timely basis, wherever possible,



• allowing Employees and any relevant employee organisation to express their views and have those views considered by the decision maker, and



• explain the decisions that have been made, including how the views expressed were taken into account.

8.2 The AEC will operate with a national consultative forum and a consultative forum in each State and Territory comprised of management and Employee Representatives. Employees may choose to have an employee organisation represent their interests in the forums. Consultation and these forums will operate in accordance with the respective Terms of Reference and facilities for co-operation and consultation which shall only be altered by agreement of those involved.

8.2 Policies that support this Agreement will only be updated following reasonable consultation with Employees through to the national consultative forum.” 46

[73] In the same meeting, the AEC put an “exploratory draft consultation clause” to the CPSU for its consideration. 47 That clause was in these terms;

“AEC Enterprise Agreement - Draft clause 8 'Principles of consultation and communication'

Provided to bargaining representatives in a bargaining meeting and via email on 5 April 2016

8.1 To the extent reasonably practical in the circumstances, the AEC will consult with Employees about matters that significantly affect Employees by:

a) Providing all relevant information to affected Employees on a timely basis;

b) Allowing affected Employees and their nominated representatives (if any) to have their views considered by the decision maker; and

c) Explaining how the views expressed were considered.

8.2 The AEC will operate with a national consultative forum and a consultative forum in each State and Territory comprised of management and Employee Representatives. An Employee may choose to nominate a representative to represent their interests in the forums. Consultation and these forums will operate in accordance with respective Terms of Reference or Facilities for Cooperation and Consultation, which shall only be altered by agreement of those involved.

8.3 Policies that support this Agreement will only be updated following reasonable consultation with Employees through to the national consultative forum.” 48

[74] A contest then emerged between the parties about whether the clause had been agreed within the meeting. In any event, Mr Kitson contends that it was not. 49

[75] Part of Mr Kitson’s response on the subject included him reiterating concerns about the CPSU’s proposal for the first part of the clause, 8.1. In particular he advised that the AEC considered the clause represented “an unnecessary expansion of the obligations contained in the model clause and that it will affect the AEC’s decision-making responsibilities”. The correspondence also proposed amendments to the CPSU’s proposals for clauses 8.2 and 8.3. 50

[76] In the course of the hearing of the matter on 15 April 2016, it was indicated that the content of the consultation clause had been discussed in the meeting the day before the hearing. 51

[77] Having considered all the evidence and material provided in these matters, I am not satisfied there has been a failure by the AEC to meet the good faith bargaining requirements.

[78] The CPSU has put forward its position on the consultation clause, most recently on 5 April 2016, with the AEC reciprocating on 14 April 2016. The difference between the parties on the subject matter within the clause includes whether the commitment to consult should not only be in connection with definite decisions about significant changes, but also impending changes. There are further differences between the clauses favoured by the respective parties, and potentially important ones at that, however those differences do not appear to be insurmountable. In any event, the evidence does not show a failure on the part of the AEC in relation to the consultation clause to “disclose what they may be prepared to tentatively accept” or “advance for consideration a proposal which it may be prepared to accept, albeit a proposal which may well be subject to qualifications or reservations”. 52

[79] In fact, the evidence takes me to the opposite point. Mr Kitson’s correspondence of 7 April 2016 to the CPSU 53 shows consideration was given to the CPSU proposal. The correspondence, together with his evidence relating to discussions of the matter in the bargaining meeting on 5 April 2016, shows the AEC received the CPSU’s proposal, engaged with it and reflected upon it. Further, it put back an alternative in the form of an “exploratory draft consultation clause”.54 It then decided its views on the subject and communicated those to the CPSU on 7 April 2016. When it did so it said it was prepared to accept clauses 8.2 and 8.3 of the CPSU’s draft, but that it could not agree to the proposed clause 8.1. Its reasons for doing so, short and succinct though they may have been, were informative – the clause could not be agreed because it was viewed by the AEC as “an unnecessary expansion of the obligations contained in the model clause and that it will affect the AEC’s decision making responsibilities”.55

[80] The context of the duration and content of the parties’ bargaining allows a finding, which I make, that the communication was reasonably informative of what the AEC had decided and why. Construed objectively, and in the context of the bargaining that had taken place, the response reasonably met the requirements in s.228(1)(d) for “giving reasons for the bargaining representative’s responses” to the proposals in question.

Additional Clauses

[81] The course of negotiations over the Additional Clauses covers a similar period as the consultation clause. The evidence records a relatively consistent view of the AEC of an inconsistency of the proposals, or part of them, with the 2014 Bargaining Policy and the 2015 Bargaining Policy, or at least that for reason of partial inconsistency it was undesirable for the AEC to agree to the claims.

[82] Mr Kitson’s evidence is that on 30 June 2014 he wrote to the CPSU and expressed views about the CPSU’s request to commence negotiations. He referred to the applicability of the 2014 Bargaining Policy and that the initial approval process for the AEC’s bargaining position “will be quicker if the AEC’s proposals remain within the framework of the Policy”. 56 His evidence is that he provided a written response to the CPSU on domestic violence leave together with reasons for the response on 26 September 2014.57

[83] On 16 October 2015 Mr Kitson responded in detail to feedback received by the CPSU to what was then the AEC’s proposed enterprise agreement. 58 Neither specifically refers to the additional clauses subject matters.

[84] In correspondence dated 9 November 2015, summarising discussions in a meeting in the past week, the CPSU referred only obliquely to the subject matters that might be covered by the Additional Clauses, when it stated;

“As you will know we are still not in agreement with AEC about the notion that some elements of the current agreement must be removed, thereby reducing some conditions, on the basis that they represent "restrictive work practices". These are particularly directed at changes to consultation and representation.

We also have major reservations about specifically placing all policies outside the agreement. We have offered several alternate options to accommodate this with little success. We still believe that a fair compromise could be reached by amending the clause to read “The operation of this Agreement is supported by policies, procedures and guidelines. Such policies, procedures and guidelines do not form part of this Agreement other than ones which directly support workplace conditions or entitlements. If the is an inconsistency ..........”” 59 (original italics)

[85] Mr Kitson’s response on 11 November 2015 also dealt with the additional clauses subject matters but also somewhat indirectly;

“Policies that support the EA

As noted in correspondence provided to you on 16 October 2015, and in a previous bargaining meeting on 1 October 2015, the AEC cannot amend clause 4.3 as you suggest in your email below. Despite our efforts, the AEC has been advised by the APSC on numerous occasions that the current clause (as reflected in the attached copy of the EA) cannot be amended in order to comply with the APS Bargaining Policy. The AEC has unequivocal advice that changes to this clause will not succeed in achieving APSC approval and we do not intend to cause further delay by continuing to contest in vain.” 60

[86] Correspondence from the CPSU to the AEC indicates the union tabled its “bargaining outcomes position on 13 November 2015. 61 The correspondence is dated 18 November 2015 and expresses the view that while “some attention” has been paid to the CPSU outcomes position, “insufficient regard” has been had by the AEC to several aspects of the CPSU’s proposals. The correspondence then proceeds to assert several breaches of the good faith bargaining requirements. It does not make direct reference to the Additional Clauses subject matters.

[87] The subject matters within the Additional Clauses are referred to in correspondence from the AEC to the CPSU dated 7 April 2016 in which Mr Kitson advises that the “AEC expects to be in a position to respond to the CPSU’s other proposals with respect to Flexitime, EL TOIL and domestic violence leave in advance of the next bargaining meeting” scheduled for Friday, 8 April 2016. 62

[88] The CPSU application in these proceedings was made on 23 March 2016.

[89] The AEC’s evidence about its bargaining position on two aspects of the Additional Clauses includes that it discussed domestic violence leave and performance management matters in the bargaining meeting held on 5 April 2016 and that;

“The CPSU undertook to provide a draft underperformance clause at the meeting on 5 April 2016. No such clause has been received.” 63

[90] In relation to the Additional Clauses matters, the evidence about the state of bargaining is slight, but allows a finding that the matters were the subject of bargaining the day before the hearing and that it was to continue the day after. The evidence also shows the AEC is prepared to deal with claims through organisational policies and procedures, instead of being placed in a clause within an enterprise agreement. For its part, the CPSU wants the matters dealt with through clauses in the enterprise agreement.

[91] It is apparent from the evidence and submissions that the AEC has given genuine consideration to the claims made by the CPSU for the Additional Clauses subject matters to be included in the enterprise agreement; that it has decided it does not wish to accede to the claims, at least insofar as they relate to a claim for the matters to be dealt with through enterprise agreement clauses. It also communicated that decision to the CPSU and stated the reasons for its response to those proposals.

[92] There is nothing within the AEC’s conduct on these matters that would cause me to find it has not met the good faith bargaining requirements.

Competence of the CPSU’s application in relation to the Additional Clauses

[93] As set out earlier, the AEC objected to the form of the CPSU application for bargaining orders insofar as it deals with the Additional Clauses. That claim is made because the AEC considers that the prerequisites for making an application for bargaining orders pursuant to s.229 have not been met, and in particular that the CPSU has not followed the requirement in s.229(4)(b) for an applicant to give written notice to the relevant bargaining representatives setting out its concerns about a good faith bargaining failure and giving them time to respond to those concerns.

[94] Factually the CPSU has not complied with the requirement in s.229(4)(b). The evidence does not lead me to find that it is appropriate in all the circumstances for the Commission to consider the application, notwithstanding that it is not made in accordance with the provisions of s.229(4)(b) or (c). The evidence does not show the allegations that the AEC has not complied with the good faith bargaining requirements in relation to the Additional Clauses has previously been put to the AEC; and it has not had an opportunity to consider the CPSU’s complaint that it has not genuinely considered the proposals, or given reasons for its position about those proposals. This is not a case where, but for strict compliance with the notice and response requirements of s.229(4)(b) or (c), the applicant has ensured the respondent is on firm and unambiguous notice that it regards the respondent as being in breach of the good faith bargaining requirements. I also take into account, as a reason for not exercising a discretion to waive compliance with the notice requirements, my findings about the strength of the argument that the AEC has not complied with the good faith bargaining requirements on these matters.

Good faith bargaining generally; relevance of conduct of the APSC or the Minister

[95] Having reviewed the conduct of the AEC representatives at the bargaining table, I find no evidence that any other employer bargaining representative did not meet the good faith bargaining requirements.

[96] The invitation is made to the Commission by the Applicant to find that the involvement of the Minister or the APSC is such that findings must be made that either or both have contravened the good faith bargaining requirements and that representatives of each should be brought to the bargaining table.

[97] That there is a policy of some kind, of that title or not, and whether written or not, is not unusual in bargaining. Neither for that matter is it unusual for there to be negotiating instructions or parameters that guide and eventually limit the authority of bargaining representatives at the bargaining table. To that extent the 2015 Bargaining Policy and the matters it deals with is also unexceptional. So too is it unexceptional that a bargaining representative, actually involved in bargaining, does their best to give life to the policies or parameters set for them by those for whom they bargain.

[98] The question of involved other parties was considered by the Full Bench in Esso 64, a decision under the former legislation. One of the questions in that matter, relating to applications to terminate certified agreements applicable to contractors to Esso, involved a finding in the decision at first instance “that the contracts gave Esso a great deal of control over changes sought to be implemented by the contractors and over the bargaining process as a whole”.65The Full Bench found that;

“Esso’s role in the negotiations should be seen in its full context. That context includes the following circumstances. Esso is the operator of the offshore platforms and onshore facilities at which work was carried out by the contractor’s employees. Esso has its own employees at these locations. It is to be inferred that in these circumstances Esso has a legitimate interest in the conditions to be offered to the employees of the contractors. It is not surprising that the claim by the contractors for the adoption of the 14 day roster was rightly seen by all parties and by the Commissioner as having implications not only for the contractors’ offshore employees, but for Esso’s offshore employees as well. It is also relevant that under the contracts Esso was obliged to reimburse the contractors for increases in labour costs. Given these considerations we are unable to attribute to Esso’s involvement in the negotiations the characterization which the Commissioner gave to it. Furthermore we do not regard Esso’s role in this case as unusual. Other examples can be found in contemporary industrial relations of head contractors and indeed Governments reserving a right to influence or even to control the outcome of negotiations between their contractors or agencies and the employees of the contractors or agencies. Nothing in Pt VIB prohibits conduct of this type, provided there is no coercion.” 66

[99] Within a different legislative context, of whether conduct in bargaining under the current FW Act did not meet the good faith bargaining requirements, the Commission has applied this reasoning with approval even where it was found a close relationship between a hospitals’ industrial association and a Government “exerts an influence in the bargaining process” including in the development of strategy and claims. 67 After considering the applicability of Esso, the Commission held;

“In the present circumstances, the Employers whom the VHIA represents, are publicly funded by the State of Victoria and the State of Victoria has set the parameters for wage increases for public hospitals, as it has done in other public employment sectors. The VHIA and Department of Health share a commonality of interest in the outcomes of bargaining and, given the funding arrangements; it is clearly in the interests of Employers and the VHIA, to ensure the Department of Health is satisfied with any agreement made. There is no evidence to suggest that this circumstance is unusual having regard to public sector employment generally in the State of Victoria.

Accordingly, I am not satisfied that the relationship between the VHIA and the State of Victoria is such that the VHIA is precluded from bargaining genuinely or in good faith.” 68

[100] I respectfully concur, and apply this earlier reasoning to this matter.

[101] There is not, within the legislation, an obligation for a bargaining representative, in any setting, to be the person who decides those policies or parameters or even how they are to be applied. 69 Instead the legislation casts obligations on those involved in bargaining.

[102] However, a bargaining representative’s duty is to give genuine consideration to all matters raised in bargaining, including ones that, on their face, are beyond their negotiating authority.

[103] A bargaining representative can seek to give effect to that obligation by seeking to understand what is sought and why; by endeavouring to ascertain how the elements of the proposal may align with the bargaining policy or parameters to which they work; and by seeking to understand which parts of the proposal may be negotiable, and to what extent.

[104] If they are unfavourably disposed to a proposal they are obligated to communicate their reasons. It can reasonably be expected that they do so in a manner that gives the other parties sufficient insight to understand what room for negotiation on the proposal remains.

[105] The giving of reasons is, within the scheme of the legislation, for the purposes of those receiving the reasons to develop an understanding about what scope for further discussion or negotiation remains. The reasons are also for the purposes of giving information to the other parties about how they may respond, whether that is by debating the matter further for persuasive effect; through modifying or withdrawing the proposal being responded to; by modifying existing claims or making entirely new ones.

[106] Alternatively, the party being given the reasons may take an entirely different tack. In the case of an employee bargaining representative, that may include consideration of seeking authorisation for the taking of protected industrial action, after seeking a protected action ballot order and having the proposed industrial action carried in a ballot, if such has not already occurred.

[107] The point with the giving of the reasons pursuant to s.229(1)(d) is that the respondent party has enough insight into the first party’s position in order to decide what to do next. That obligation has been well satisfied by the AEC in the case of both the consultation clause and the Additional Clauses.

[108] That the CPSU does not like the insight it has been given and would like what they are being told to change is not sufficient ground for there to be an order made under the FW Act.

Whether there should be disclosure of relevant information

[109] The CPSU draft order, its case to the Commission and evidence, also seeks an order to be made for the alleged failure of the AEC to meet the good faith bargaining requirements in s.228(1)(b) which requires a bargaining representative to disclose relevant information (other than confidential or commercially sensitive information) in a timely manner.

[110] The CPSU argues about this aspect of its case;

“55. In the context of:

a. the APSC and the Minister Assisting the Prime Minister on the Public Service being the ultimate decision makers in relation to proposals of the CPSU, in accordance with the 2015 Policy;

b. the AEC advising that it wanted to include a workplace consultation clause similar to the clause proposed by the CPSU but that it could not negotiate the term that it wanted with the APSC;

c. the AEC refusing to agree to a representative of the APSC attending a bargaining meeting; and

d. the Minister Assisting the Prime Minister on the Public Service refusing to intervene, the provision of information which would allow the CPSU to understand the position of the APSC and the Minister Assisting the Prime Minister on the Public Service in response to proposals put by the CPSU is necessary to facilitate good faith bargaining, in the sense contemplated in NUW v Defries Industries Pty Ltd[2009] FWA 88, such as to allow the CPSU to give consideration to the Commonwealth’s position.

56. It is submitted that the information sought by the CPSU is of this kind, and the AEC’s refusal to provide it has prevented the CPSU from being able to understand the Commonwealth’s position in response to its proposals and to engage in good faith in bargaining to put further proposals that attempt to thereby address the Commonwealth’s position.” 70

[111] Part of the CPSU’s case in this regard is that it has highlighted to the AEC its desire for further information about certain matters and requested the following (amongst other requests on the subject) within a letter from the CPSU to the AEC on 18 November 2015;

“Remedy

We understand that the Electoral Commissioner, and the employer's negotiating team occupy a delicate position. We understand, particularly from the negotiating team's advice on 24 November, that the negotiating team and the Electoral Commissioner have had their decision making power curtailed by a range of factors. In that light, we know that resolving this dispute, and in particular ensuring genuine consideration of the CPSU proposal requires the involvement of parties beyond the Electoral Commissioner and the employer's negotiating team.

On this basis, and in satisfaction of the concerns we have outlined above, we request that the employer take the following steps:

1. Schedule further bargaining meetings with the CPSU (and other bargaining representatives if any).

2. Invite to be present at those meetings (or some of those meetings) the Minister Assisting the Prime Minister for the Public Service and/ or her delegate (which may include an APSC representative), to ensure that genuine consideration of the CPSU proposal, including the CPSU Outcomes Position, particularly insofar as it relates to workplace consultation and other matters that the Electoral Commissioner and the employer's negotiating team consider their decision making power to be curtailed on, can occur and that appropriately reasoned responses can be provided;

3. Agree with the CPSU an acceptable time line to put any proposed agreements to a vote, whether by agreement or otherwise, but allowing such time for each party to meet the good faith requirements and consistent with the parties obligations to ensure employees to be covered by the agreement fully understand the changes that are proposed.” 71

[112] The invitation was declined, not the least by the Minister who suggested in response to similar correspondence sent to her, that the request was mischaracterised, and confused the FW Act’s concepts of employing authority and bargaining representative. 72

[113] I agree that, within the context of the findings I have made that the good faith bargaining requirement within s.228(1)(d) has been met, it follows, in this matter at least, because of its particular circumstances, that there is not the requisite foundation for a finding of a failure to meet the requirements of s.228(1)(b). The information sought for disclosure, in this case, is that which I have held has already, and sufficiently, been provided to the CPSU by the AEC. In that regard, I take into account that it has been held by the Commission that the requirement for the disclosure of information in s.228(1)(b) is to allow the other bargaining representative(s) to give consideration to the bargaining representative’s position. 73

[114] Accordingly, the CPSU’s application also fails in respect of s.228(1)(b) of the FW Act.

Conclusion

[115] In summary;

• I am satisfied that the CPSU application has been properly made, pursuant to the provisions of s.229(4) in relation to its complaint about the consultation clause, but not the Additional Clauses;



• I am satisfied that the employer and employees have agreed to bargain and have initiated bargaining for a proposed agreement (s.230(2));



• I have considered whether the bargaining representatives for the AEC have met and are meeting the good faith bargaining requirements, either by 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; or of disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner, in relation to the following matters;



• bargaining over the consultation clause; and



• bargaining over the Additional Clauses.



• In relation to these matters;



• I am satisfied that the AEC’s bargaining representatives have given genuine consideration to the proposals of other bargaining representatives about these matters, and have given reasons for their responses to those proposals; and



• I am satisfied that the AEC has disclosed relevant information on these matters (other than confidential or commercially sensitive information) in a timely manner.

[116] As a result, I must now dismiss the CPSU’s application and an order doing so is issued at the same time as this decision.

[117] In the course of the hearing, I was informed that the AEC wishes to draw bargaining to an end in the near future and to proceed to a ballot on its proposed enterprise agreement, after endeavouring to finalise bargaining on the remaining matters discussed within this matter.

[118] I can see no impediment to that being done within the timeframe proposed by the AEC. The making of an enterprise agreement is ultimately a democratic process, and whether the AEC’s proposal is sufficiently meritorious for an agreement to be made by a majority of AEC employees is a question only they can answer, and they should be permitted that opportunity if the AEC so desires.

COMMISSIONER

Appearances:

Mr A Rich (Slater & Gordon lawyers) for the CPSU

Mr Y Shariff, of counsel, (instructed by Ashurst Australia lawyers) for the AEC

Hearing details:

2016.

Canberra:

15 April.

 1   Exhibit A3, Draft Orders of the CPSU.

 2   Exhibit A1, Witness Statement of David Stiller, [14]; Exhibit A2, Outline of Submissions of the CPSU, [5].

 3   Exhibit A1 Attachment G, 3.

 4   Fair Work Regulations 2009, Schedule 2.3.

 5   Exhibit R2, Witness Statement of Kevin Kitson, [23], Attachment KK-13.

 6 Exhibit A1 [17].

 7   Transcript PN 132.

 8   Ibid PN 219.

 9   Ibid PN 644.

 10 Exhibit A2 [48].

 11 Ibid [55].

 12 Ibid [13].

 13 Ibid [51].

 14   Ibid [38], [51]-[52].

 15   Fair Work Act 2009 (Cth), s.231(1).

 16   Fair Work Regulations 2009, Schedule 6.3 — Public sector employment — employing authorities.

 17   Exhibit A1 Attachment B.

 18   Endeavour Coal v APESMA [2012] FCA 764 [31].

 19   Endeavour Coal v APESMA[2012] FWAFB 1891, at [22]–[23]; with reference to “Asahi”, Asahi Diamond Industrial Australia Pty Ltd v Automotive, Food, Metals and Engineering Union (1995) 59 IR 385 at [422] and “ABC”, Public Sector, Professional, Scientific, Research, Technical, Communications, Aviation and Broadcasting Union v Australian Broadcasting Corp (unreported, AIRCFB), Print L4605, 31 August 1994.

 20   Endeavour Coal v APESMA[2012] FWAFB 1891 [27].

 21 Ibid [33].

 22   Endeavour Coal v APESMA [2012] FCA 764 [35].

 23 Ibid [43].

 24   [2009] FWA 88 [64].

 25   [2012] FWA 285 [99].

 26   [2013] FWC 8428 [30].

 27   Australian Nursing Federation v Victorian Hospitals’ Industrial Association [2012] FWA 285 [101].

 28   [2012] FWAFB 1891 [64].

 29   National Union of Workers v Linfox Australia Pty Ltd [2013] FWC 8428 [33].

 30   [2015] FWCFB 1451.

 31 (2005) 139 IR 34 [33]; see also Australian Nursing Federation v Victorian Hospitals’ Industrial Association[2012] FWA 285 [85].

 32   Transcript PN 703–706.

 33   Transcript PN 735.

 34   Exhibit R2 Attachment KK-4.

 35   Ibid Attachment KK-5.

 36   Ibid Attachment KK-6.

 37   Ibid Attachment KK-7.

 38   Ibid Attachment KK-8.

 39   Ibid Attachment KK-9.

 40   Ibid.

 41   Exhibit A1 Attachment C.

 42   Fair Work Regulations 2009, Schedule 2.3—Model consultation term.

 43   Exhibit R2 Attachment KK–10, correspondence from Michael Slater, 9 October 2015.

 44   Ibid Attachment KK-13.

 45   Transcript PN 50.

 46   Exhibit R2 Attachment KK-15.

 47   Ibid [35]-[37].

 48   Ibid Attachment KK-16.

 49 Ibid [37].

 50   Ibid Attachment KK-18.

 51   Transcript PN 132.

 52   Endeavour Coal v APESMA [2012] FCA 764 [43].

 53   Exhibit R2 Attachment KK-18.

 54 Ibid [35].

 55   Ibid Attachment KK-18.

 56   Ibid Attachment KK-1.

 57 Ibid [44].

 58   Ibid Attachments KK-10, KK-11.

 59   Ibid Attachment KK-13.

 60   Ibid.

 61   Ibid Attachment KK-14.

 62   Ibid Attachment KK-18.

 63 Ibid [49].

 64 (2005) 139 IR 34.

 65 Ibid [28].

 66 Ibid [30].

 67   Australian Nursing Federation v Victorian Hospitals’ Industrial Association[2012] FWA 285 [78].

 68   Ibid [86]-[87].

 69   Endeavour Coal v APESMA [2012] FCA 764 [73].

 70   Exhibit A2 [55]-[56].

 71   Exhibit A1 Attachment G, 5.

 72   Ibid Attachment J.

 73   National Union of Workers v Defries Industries Pty Ltd[2009] FWA 88 [64].

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