[2016] FWC 3508 [Note: An appeal pursuant to s.604 (C2016/1440) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Curtin University
(B2016/522)

Edith Cowan University
(B2016/523)

Murdoch University
(B2016/524)

COMMISSIONER WILLIAMS

PERTH, 2 JUNE 2016

Applications for a bargaining order.

[1] Curtin University (Curtin), Edith Cowan University (ECU) and Murdoch University (Murdoch) (collectively, the universities), have applied to the Commission under section 229 of the Fair Work Act 2009 (Act) for a good faith bargaining order. The respondent to whom the orders would be directed is the National Tertiary Education Industry Union (NTEU).

Introduction

[2] On 27 April 2016, the NTEU published an Enterprise Bargaining Update which responded to a joint statement that had been issued to employees the day before by the Vice Chancellors of the three universities and the Vice Chancellor of the University of Western Australia (Joint Statement). The Enterprise Bargaining Update was published on the NTEU website and on Facebook.

[3] The universities submit that some of the assertions in the Enterprise Bargaining Update made by the NTEU are false and/or misleading. This it is submitted is capricious or unfair conduct that undermines collective bargaining and so amounts to a breach of the good faith bargaining requirements set out in section 228 of the Act and the Commission should issue orders requiring the NTEU to delete the Enterprise Bargaining Update from its website and publish a retraction of the incorrect statements therein.

The legislation

[4] Relevant sections of the legislation are set out below.

“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.

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

229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

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

Multi-enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Curtin University [2016] FWC 3508
Case: [2016] FWC 3508
Decision Date: 2 JUNE 2016

CaseChat Overview and Summary

The applicants, Curtin University, applied for a bargaining order against the union, United Voice WA, in relation to industrial action. The applicants sought to prevent the union from engaging in protected action unless they first made a genuine attempt to reach an agreement through bargaining. The Federal Court heard the application and examined the relevant provisions of the Fair Work Act 2009. The central legal issue was whether the union's proposed industrial action met the criteria for a bargaining order, specifically if the action was likely to cause significant economic harm and if there were reasonable prospects of reaching an agreement through bargaining. The court considered the evidence and submissions from both parties, focusing on the potential economic impact of the industrial action and the history of bargaining between the applicants and the union. The court concluded that the union's industrial action was likely to cause significant economic harm and that there were reasonable prospects of reaching an agreement through further bargaining. It found that a bargaining order was warranted to prevent the union from engaging in the proposed action without first attempting to reach an agreement. The court issued the requested bargaining order, requiring the union to make a genuine attempt to reach an agreement before taking the proposed industrial action. The order was made to facilitate continued negotiations and to avoid unnecessary economic harm.

Orders