EBAIR v Coles Group Supply Chain Pty Ltd - [2022] FWC 1228

[2022] FWC 1228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.229—Bargaining order

EBAIR
v

Coles Group Supply Chain Pty Ltd

(B2022/413)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 19 MAY 2022

Application for bargaining order under s 229 requiring joint bargaining meetings between EBAIR, Coles and the UWU – application dismissed

This is an edited version of a decision given ex tempore yesterday afternoon, to which I have added an introduction, as well as a brief summary of the factual background that is reflected in correspondence that passed between the parties in April and early May 2022. The decision concerns an application made for a bargaining order under s 229 of the Fair Work Act 2009 (Cth) (FW Act) by an organisation known as ‘EBAIR’, which is an acronym for ‘Enterprise Bargaining Agents and Industrial Relations’. The order sought would have the effect, among other things, of requiring Coles Group Supply Chain Pty Ltd (Coles) to permit EBAIR to participate jointly in enterprise bargaining negotiations between Coles and the United Workers Union (UWU) for an agreement to replace the Coles Laverton CDC and NUW Enterprise Agreement 2019 (2019 Agreement). It is the position of Coles that it will negotiate separately with the UWU and EBAIR in relation to the terms of the new agreement. The UWU supports this position.

The background is as follows. On 20 January 2022, Coles issued to relevant employees a notice of employee representational rights (NERR) initiating bargaining for a proposed new agreement referred to in the NERR as the Coles Laverton CDC Enterprise Agreement 2022 (2022 Agreement), which would apply to employees who undertake work at the company’s chilled distribution centre in Truganina in Victoria. The UWU is a bargaining representative for the 2022 Agreement and is covered by the 2019 Agreement. Negotiations between Coles and the UWU commenced in April 2022.

An employee of Coles who would be covered by the 2022 Agreement appointed EBAIR as a bargaining representative. EBAIR then contacted Coles and sought to become involved in the enterprise bargaining negotiations for the 2022 Agreement. On 7 April 2022, a video meeting took place between Mr Nicholas Barkatsas, Coles’ employee relations manager, and Mr Efu Koka of EBAIR. Mr Koka told Mr Barkatsas that EBAIR wanted to participate in the same bargaining meetings as the UWU. Mr Barkatsas declined this request and told Mr Koka that Coles would negotiate with EBAIR in separate meetings.

On 10 April 2022, Mr Koka sent to Mr Barkatsas a letter in which he objected to Coles’ proposal to have separate bargaining meetings with EBAIR and stated that he expected to be able to participate in joint negotiations with other bargaining representatives.

In a letter to Mr Koka dated 14 April 2022, Mr Barkatsas stated that Coles’ preferred approach of having separate bargaining meetings was commonplace, and that the FW Act did not require there to be a ‘single bargaining unit’. Mr Barkatsas stated that Coles believed that this approach would allow bargaining to proceed efficiently and…

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

Case: [2022] FWC 1228
Decision Date: 19 MAY 2022

CaseChat Overview and Summary

The Fair Work Commission recently considered an application by EBAIR for a bargaining order under section 229 of the Fair Work Act 2009 (Cth) (FW Act) that would require Coles Group Supply Chain Pty Ltd (Coles) to permit EBAIR to participate jointly in enterprise bargaining negotiations between Coles and the United Workers Union (UWU) for a new enterprise agreement. EBAIR, an acronym for Enterprise Bargaining Agents and Industrial Relations, is a bargaining representative for a Coles employee who would be covered by the proposed agreement. The UWU is also a bargaining representative for the proposed agreement and is covered by an existing agreement. Coles has declined to have joint meetings with EBAIR and the UWU, preferring to meet separately with each bargaining representative. The Deputy President found that Coles had not contravened the good faith bargaining requirements in the FW Act and dismissed EBAIR’s application for a bargaining order. The Deputy President found that Coles had given genuine consideration to EBAIR’s proposal for joint meetings and had provided clear and sensible reasons for its response. The Deputy President found nothing capricious or unfair about Coles’ view that enterprise bargaining meetings with EBAIR should take place separately from enterprise bargaining meetings with the UWU. The Deputy President also found that Coles had recognised and bargained with EBAIR as a bargaining representative for the proposed agreement and that Coles’ approach did not contravene any of the good faith bargaining requirements.

Orders