EBAIR v Coles Group Supply Chain Pty Ltd
[2022] FWC 1228
•19 MAY 2022
| [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 fairly and would ensure Coles could give appropriate time and attention to all bargaining representatives and consider their claims. Mr Barkatsas also stated that the interests of individual bargaining representatives were often particular to their own constituents, and that it was inefficient to tie up other bargaining representatives with those matters. Mr Barkatsas stated that Coles wished to meet with EBAIR and invited Mr Koka to a meeting. A meeting was scheduled for 22 April 2022. Coles sent Mr Koka a copy of its log of claims, and that of the UWU, and asked Mr Koka to provide Coles with EBAIR’s log of claims, which he did.
On 22 April 2022, Mr Koka attended a bargaining meeting on site with Mr Barkatsas and other representatives of Coles. Mr Koka stated that he could not support a process that did not abide by the good faith bargaining requirements in the FW Act, and that in his view Coles’ proposal to negotiate separately with EBAIR was in breach of clause 4.2 of the 2019 Agreement, which provides that negotiations for a new agreement ‘will be conducted on a collective basis between the parties with the negotiated outcome being subject to approval of a vote of the Team Members collectively.’ Mr Koka asked that EBAIR be allowed to join a bargaining meeting scheduled to take place between Coles and the UWU on 28 April 2022. Mr Barkatsas said that Coles would consider the request, but in the meantime the parties should continue the current meeting and outline their bargaining claims. Mr Koka declined, as he did not want to acquiesce in Coles’ preferred approach to bargaining.
On 26 April 2022, Mr Barkatsas wrote to Mr Koka and advised him that Coles maintained the views expressed in its letter of 14 April 2022 and would continue to bargain separately with the UWU and EBAIR. Mr Barkatsas invited Mr Koka to another bargaining meeting.
In a letter to Mr Barkatsas dated 28 April 2022, Mr Koka stated that his request of Coles to participate in bargaining together with the UWU was not unreasonable. He asked Coles to reconsider its position, which he again said was in breach of the good faith bargaining requirements in the FW Act. Mr Koka asked Coles to refrain from any further negotiations with other bargaining representatives until the matter was resolved and stated that if there was no resolution by 29 April 2022, he would make an application to the Fair Work Commission.
In a letter to Mr Koka dated 4 May 2022, Mr Barkatsas denied that Coles had contravened the good faith bargaining requirements and maintained that having separate bargaining meetings was the most efficient way to proceed, particularly in light of the fact that five of the eleven items on EBAIR’s log of claims pertained only to EBAIR, rather than to the single Coles employee it represented, and that the remaining items had little in common with the proposals of other bargaining representatives. Mr Barkatsas again invited Mr Koka to a bargaining meeting. Shortly afterwards EBAIR filed its application for bargaining orders in the Commission.
Consideration
Section 229(1) of the FW Act allows a bargaining representative to apply to the Commission for a bargaining order. Section 230(1) provides that the Commission may make a bargaining order if the requirements in s 230 have been met. Those requirements are as follows:
· the employer has agreed to bargain; or a prescribed instrument is in operation (s 230(2)); and
· one or more of the bargaining representatives have not met, or are not meeting the good faith bargaining requirements (s 230(3)(a)(i)); or the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement (s 230(3)(a)(ii)); and
· the applicant for the order has complied with the notification requirements in s 229(4), unless the exception in s 229(5) applies (s 230(3)(b)); and
· the Commission is satisfied that it is reasonable in all the circumstances to make the order (s 230(1)(c)).
A bargaining order must be in accordance with the requirements of s 231, which deals with what a bargaining order must specify (s 230(4)).
Section 228(1) sets out the good faith bargaining requirements. It states:
“(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.”
It is not in dispute that EBAIR has made a valid application under s 229, that bargaining had been initiated by the company, and that EBAIR has complied with the notification obligation in s 229(4). The question for determination is whether the Commission is satisfied that Coles has not met, or is not meeting, the good faith bargaining requirements.
In its application EBAIR contended that Coles had breached all of the good faith bargaining requirements in ss 228(1)(a) to (f) of the FW Act. EBAIR clarified at the hearing that its contention was rather that Coles had not met, or is not meeting, one or more of the requirements in ss 228(1)(d), (e) and (f). I reject this contention.
First, I am not satisfied that there has been any contravention of s 228(1)(d). In my view Coles gave genuine consideration to EBAIR’s proposal to allow it to participate in enterprise bargaining meetings together with the UWU. Coles provided reasons for its response to EBAIR’s proposal for joint meetings. Those reasons, set out in Mr Barkatsas’ letters to Mr Koka, are clear and sensible.
Secondly, I am not satisfied that Coles has engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining (s 228(1)(e)). I find nothing capricious or unfair about Coles’ view that enterprise bargaining meetings with EBAIR should take place separately from enterprise bargaining meetings with the UWU. Coles has a cogent rationale for its position. It does not consider that it would be efficient to have joint meetings, at which the UWU would need to listen to claims that concern EBAIR only, and vice versa. The approach of having separate meetings with different bargaining representatives is not uncommon and may be desirable for various reasons. As the Full Bench noted in Ferguson v Path Transit Pty Ltd[2021] FWCFB 1663, a bargaining representative does not contravene the good faith bargaining requirements simply by conducting separate bargaining meetings with different bargaining representatives (at [11]). The good faith bargaining requirements do not mandate a single forum for enterprise bargaining to which all bargaining representatives must be invited. That is not to say that a refusal to agree to joint bargaining meetings could never give rise to concerns about compliance with the requirements in s 228. Whether the good faith bargaining requirements have been met depends on all of the circumstances. In this case, EBAIR has not established that Coles’ position is ‘capricious’ or ‘unfair’, or that its conduct ‘undermines freedom of association or collective bargaining.’
Thirdly, it is not the case that Coles has failed to recognise or bargain with EBAIR as a bargaining representative for the agreement (s 228(1)(f)). Coles has agreed to meet and bargain with EBAIR. It continues to wish to meet with EBAIR to discuss the proposed agreement.
EBAIR contended that Coles had contravened Regulation 2.06, which concerns the process for the appointment of bargaining representatives. Mr Koka explained that he believed Coles was trying to control the bargaining process by insisting on separate meetings with EBAIR. But the regulation is not concerned with this. And Coles is no more seeking to control the terms of engagement for bargaining than EBAIR.
I reject EBAIR’s contention that Coles’ position is contrary to clause 4.2 of the 2019 Agreement, which concerns the arrangements for the renegotiation of that agreement. The clause simply requires that there be collective negotiations between the parties, with the negotiated outcome being subject to approval by vote. EBAIR is not a party to the 2019 Agreement. And EBAIR is not correct to say that Coles is refusing to negotiate collectively. It is in fact EBAIR that is currently refusing to negotiate with Coles unless it is allowed to negotiate in the same meetings with the UWU.
Finally, I reject EBAIR’s contention that because Coles wishes to meet separately with EBAIR, which represents a single employee, it is therefore engaged in individual rather than collective bargaining. As Coles explained, it wishes to meet separately with EBAIR as a bargaining representative, irrespective of the number of employees whom EBAIR represents. This does not mean that Coles in seeking to bargain on an individual basis. Coles considers it most efficient to meet separately with the UWU and EBAIR. Even if Coles is wrong about this, that does not mean that it has contravened any of the good faith bargaining requirements. Reasonable minds may differ about what approach should be taken to the structure of enterprise bargaining negotiations.
Conclusion
Section 230(3) of the FW Act requires that, before making a bargaining order, the Commission must in all cases be satisfied that a bargaining representative has not met or is not meeting the good faith bargaining requirements, or that the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement (s 230(3)(a)). I am not satisfied that Coles has not met or is not meeting the good faith bargaining requirements. And it was not contended, nor is there any basis to conclude, that bargaining is not proceeding efficiently or fairly because of the presence of multiple bargaining representatives. I therefore have no power to make a bargaining order. Even if I had power, I find nothing in the present matter that would persuade me to exercise the discretion to grant a bargaining order.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
E. Koka for EBAIR
N. Barkatsas for Coles Group Supply Chain Pty Ltd
Hearing details:
2022
Melbourne
18 May
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