E Morcom
[2009] FWA 694
•20 OCTOBER 2009
[2009] FWA 694 |
|
DECISION |
Fair Work Act 2009
s.229 - Application for a bargaining order
(B2009/10795)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 20 OCTOBER 2009 |
Application for bargaining order - whether requirements of s.229(4) have been met - application dismissed.
The following decision, now edited, was given at the conclusion of proceedings on 13 October 2009.
[1] This is an application, pursuant to s.229 of the Fair Work Act 2009 (the Act), by Mr E Morcom for a bargaining order in relation to a proposed enterprise agreement with Wilson Transformer Company (the Company).
[2] There appears to be no contest to the proposition that Mr Morcom is a bargaining representative for himself in relation to the bargaining occurring in respect of the power business unit of the Company. Therefore, Mr Morcom is entitled to bring an application, subject to the requirements of s.229 of the Act. He asserts that he is a bargaining representative for others, but there is no evidence to that effect.
[3] Section 229(4) of the Act, which sets out certain prerequisites for the making of an application, is in the following terms:
“(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.”
[4] In the present circumstances, the position put by Mr Morcom is that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), as bargaining representatives for other employees, are not recognising the bargaining with himself as a bargaining representative for the agreement.
[5] It may be noted from s.230 of the Act that one of the requirements for the making of a bargaining order is that the applicant has complied with s.229(4), unless s.229(5) permitted the applicant to make the application without complying with those requirements. Mr Morcom has sought to rely on s.229(5), on the basis that he does not wish to have any delay in an order being considered and made. I am not satisfied that it is appropriate for that reason to dispense with the requirements of s.229(4) of the Act, which is the general position applicable in the Act. The requirements are readily rectified by providing the appropriate written advice of the concerns and an opportunity for those concerns to be addressed. I do not think it is appropriate that they be set aside simply on the basis that Mr Morcom seeks to obtain immediate access to a bargaining order.
[6] Accordingly, I am not satisfied that the requirements for the making of a bargaining order have been met in this case. It is in a sense premature, having been done without providing the relevant bargaining representatives with an opportunity to address Mr Morcom’s concerns. Obviously Mr Morcom is able to comply with s.229(4) and having done that to make further application.
[7] I note that there appears to be an issue in the minds of the AMWU and CEPU, as bargaining representatives, that Mr Morcom’s participation in the bargaining is impeding the bargaining. In relation to that, the bargaining scheme within the current Act clearly recognises the possibility of multiple bargaining representatives. The Act is premised on the requirement for an employer to provide notices of bargaining representational rights and employees have rights under the Act to determine their bargaining representative, either themselves or other representatives. In circumstances where the exercise of those rights results in multiple bargaining representatives and, following bargaining, it is thought that the fact of multiple bargaining representatives is impeding bargaining, the Act does not envisage that it is in the hands of one bargaining representative to unilaterally seek to exclude another bargaining representative from the bargaining process. If there is a concern, to use the words of s.233(a)(ii) that “the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement”, the appropriate course is for the bargaining representative with those concerns to make application for a bargaining order and obviously, in doing so, to comply with the processes set out in s.229(4) of the Act.
[8] It is open to any of the bargaining representatives to make such application, or in the case of Mr Morcom for him to make a further application, after having raised their concerns with the other bargaining representatives and provided an opportunity for a response to those concerns.
SENIOR DEPUTY PRESIDENT
Appearances:
E Morcom on his own behalf.
E McGrath for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
P Larkins for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Hearing details:
2009.
Melbourne:
October 13.
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