David John McLeod v Forest Coach Lines Pty Ltd T/A Forest Coach Lines
[2023] FWC 248
•30 JANUARY 2023
| [2023] FWC 248 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute
David John McLeod
v
Forest Coach Lines Pty Ltd T/A Forest Coach Lines
(B2022/1569)
| DEPUTY PRESIDENT CROSS | SYDNEY, 30 JANUARY 2023 |
Application for scope order; giving notice of concerns to other bargaining representatives; Applications dismissed.
David John McLeod (the Applicant), in his capacity as a bargaining representative, filed the following documents:
(a) A Form F11, Application for the Commission to deal with a bargaining dispute, on 16 October 2022;
(b) A Form F31, Application for a scope order, on 17 October 2022; and
(c) A Form F32 Application for a bargaining order, on 17 October 2022.
(Cumulatively referred to as the Applications)
The relief sought in the Applications overlapped, and it became apparent that the relief sought by the Applicant was a scope order requiring Forest Coach Lines Pty Ltd T/A Forest Coach Lines (the Respondent) to bargain for one enterprise agreement that would cover the Respondent’s two depots at Terrey Hills and Cromer, in New South Wales (the Depots).[1]
Background
The matter was originally scheduled for hearing on 12 December 2022. The matter could not proceed on that day as it became apparent that not all bargaining representatives had been notified of the proceedings. The matter was adjourned to 17 January 2023.
The Applicant said he had conducted a “poll” of bus drivers at the depots and “70 per cent of them said that they want one EA, not two. All of the drivers at Cromer said that they wanted one EA”.[2] Though the result at Cromer was subsequently put as “Cromer drivers on the majority, vast majority of them out of the 28 were opposed to two EAs”,[3] and the Applicant accepted that the employees he asserted he had polled were well below a majority of employees.[4] The Applicant, however, failed to lead any evidence regarding the conduct of the poll or the alleged result, and accepted “You may have to disregard the poll if I haven't put the evidence on”.[5]
The Applicant accepted that he was the bargaining representative of six to eight drivers out of a total of well over 200 drivers who worked at the Depots and would be covered by any enterprise agreement.[6]
In the Form F31 Application for a scope order, the Applicant answered “yes” to the question: “Have you attached a copy of the written notice of concerns to this application”. The Applicant further asserted that the notice was given on 7 October 2022, to five persons who all appeared to be management representatives of the Respondent.[7] That answer was false, and the Applicant stated in proceedings that, regarding the notice of concerns, he “Probably didn't have one”.[8] Apparently concerns were identified orally.[9]
The Legislation
S.238 of the Fair Work Act 2009 (Cth) (the Act) provides:
A scope order in relation to a proposed single‑enterprise agreement:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation at the earliest of the following:
(i)if the order is revoked- the time specified in the instrument of revocation;
(ii) when the agreement is approved by the FWC;
(ii)when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;
(iii)when the bargaining representatives for the agreement agree that bargaining has ceased.
The above current legislative provision incorporates an amendment contained in Sch.4 item 6 of the Fair Work Amendment Act 2012(Cth), which inserted the current form of “has taken all reasonable steps to give a written notice”, replacing the previous provision of the strict requirement to have provided the notice.
Additionally, Rule 29 of the Fair Work Commission Rules 2013 provides:
29 Application for a scope order
An application under section 238 of the Act for a scope order must be accompanied by a copy of the written notice, setting out the concerns referred to in subsection 238(1) of the Act, given to relevant bargaining representatives for the agreement under subsection 238(3) of the Act.
Consideration
In Construction, Forestry, Mining and Energy Union v Ostwald Bros Pty Ltd[10], Richards SDP observed:
At this juncture I point out that s.229(4) of the Act posits a different statutory context in which written notice is required to be provided to that of s.238(1) and s.238(3) of the Act. At s.238(3) of the Act the concern bears on the scope of the proposed agreement, which invariably impinges upon all those who may have a material interest in the coverage of the agreement.
The circumstance of numerous employee appointed bargaining representatives was considered in Construction, Forestry, Mining and Energy Union v Veolia Environmental Services (Australia) Pty Ltd) (Veolia)[11]. After recording the legislative provision, Cartwright SDP found:
[13] These subsections set out the requirements to be satisfied for a scope order application to be made. Veolia concedes that they have been met, but with one exception - failure to send written notices required by s.238 to other appointed bargaining representatives whom it says are “relevant bargaining representatives” for the purposes of s.238(3).
[14] The uncontested evidence is that employees, whom Veolia proposes be covered by separate agreements in South Australia and Tasmania, have appointed bargaining representatives and that the CFMEU has not sent them written notices of the Union’s concerns before making the application under s.238. I am satisfied on the evidence that such bargaining representatives are “relevant” within the meaning of s.238(3), because their responses on issues about negotiating for separate state agreements or a different scope would be significant for Veolia and for the CFMEU, particularly in South Australia, where it would seem that by 9 November any negotiations were in the final stages. I note in passing that their views would also be of significance in any considerations under ss.238(4) and 238(4A), though I have not considered that as a factor in weighing the requirements of s.238(3).
[15] The CFMEU rightly points to its difficulty in knowing of the appointment and identity of other appointed bargaining representatives. However, there is insufficient evidence of any attempts to establish whether other bargaining representatives had been appointed before lodging the application, in circumstances where the obligation to give written notice of its concerns to relevant bargaining representatives rests solely with the CFMEU. Indeed, Mr Winn’s letter to the CFMEU on 3 November referred to Veolia’s approach being “supported by a number of bargaining representatives outside of the CFMEU.” That is, it is apparent that before making the application, the CFMEU was on notice that there were other bargaining representatives to be considered.
[16] Without labouring the point further, it seems to me that the better course in this case is for the CFMEU to remedy the current deficiency in its application which, given my findings above, I am obliged to dismiss.
[Emphasis added]
While Veolia was decided when the Act contained the previous provision of the strict requirement to have provided the notice, I consider it is nonetheless apposite to the matter at hand as the scope order sought impinges upon the other bargaining representatives who may have a material interest in the coverage of any agreement.
The Applicant failed completely to take any reasonable steps to give a written notice setting out concerns to relevant bargaining representatives. Contrary to the answer given in the Form F31, no written notice of concerns was ever given. While I accept there was difficulty in knowing the appointment and identity of other appointed bargaining representatives, the Applicant, representing only six to eight of a total of well over 200 employees, took no steps to provide other appointed employee bargaining representatives with a written notice of concerns.
Having failed to take any reasonable steps to provide other appointed employee bargaining representatives with a written notice of concerns, the Applicant cannot apply for a scope order.
Disposition
The Applications are dismissed as the Applicant has not met the requirements of s.238(3) of the Act. In those circumstances, there is no need for the Commission to deal with the merits of the Applications.[12]
DEPUTY PRESIDENT
[1] Transcript 17 January 2023, PN 6 and PN 36.
[2] Transcript 17 January 2023 at PN 50.
[3] Transcript 17 January 2023 at PN 611.
[4] Transcript 17 January 2023 at PN 604 to 621.
[5] Transcript 17 January 2023 at PN 58.
[6] Transcript 17 January 2023 at PN 614, 618, and 678 to 683.
[7] Transcript 17 January 2023 at PN 698.
[8] Transcript 17 January 2023 at PN 557.
[9] Transcript 17 January 2023 at PN 576.
[10] [2012] FWA 1870, at [14].
[11] [2010] FWA 9211.
[12] Construction, Forestry, Mining and Energy Union v CUB Pty Ltd [2015] FWC 4556.
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