Finance Sector Union of Australia
[2010] FWA 2690
•9 APRIL 2010
[2010] FWA 2690 |
|
DECISION |
Fair Work Act 2009
s.229—Application for a bargaining order
Finance Sector Union of Australia
(B2010/2575)
COMMISSIONER SMITH | MELBOURNE, 9 APRIL 2010 |
INTRODUCTION
[1] This is an application by the Finance Sector Union of Australia (FSU) for a bargaining order to be made against the Commonwealth Bank of Australia (CBA). The application is made pursuant to s.229 of the Fair Work Act 2009 (the Act).
[2] Mr G. McConville appeared on behalf of the FSU. The CBA was represented, with permission, by Mr R. Goot, SC.
[3] When the matter first came to the Tribunal, efforts were made to conciliate a resolution. The parties cooperated and produced an agreed statement of facts. It provides the relevant history. Regrettably, total agreement was not achieved and some matters remained in dispute. It is also worth stating that meetings between the parties continued during the hearing of this matter and further information was provided to the bargaining representatives of the employees.
[4] Putting to one side for the moment a jurisdictional point raised by the CBA, the issues between the employees and CBA may be shortly stated.
[5] The CBA has for many years awarded pay increases to its staff on a regular basis without negotiating those matters with the FSU 1 and latterly the bargaining representative. During the last two years the parties have been negotiating for a new agreement, the earlier ones having expired in 2002.2
[6] The approach adopted by CBA to the negotiations was that it would not make a pay offer given the uncertainty created by the global financial crisis (GFC) and that, in addition, it wanted certain conditions to be addressed by its employees in negotiations and advice that agreement was possible.
[7] The bargaining representative was seeking that all matters, including any wage offer, be put into the negotiations.
[8] In July 2009 CBA awarded a base salary increase of 1.5% for employees earning a base salary of less than $100,000 per annum. In January 2010 CBA awarded a further (out-of-cycle) base remuneration increase of 2% to employees below Group Executive level whose most recent performance rating was at least ‘meets expectations’. Both of these increases were awarded without the involvement of the employees bargaining representative.
[9] FSU argue that, by unilaterally implementing a pay offer without returning to negotiations with the employees bargaining representatives, the CBA has not been bargaining in good faith.
[10] FSU seeks the following orders:
“1. That the Commonwealth Bank of Australia provide a negotiating position on pay to the FSU within 7 days of making this order.
2. That any further negotiations on pay increases be facilitated by Fair Work Australia in conference or any other way that FWA sees fit.
3. That CBA provide documentation to the FSU and FWA outlining projected employee budget and spend figures for the next 2 calendar years within 7 days of making this order.” 3
[11] There was a fourth proposed order which was not pressed as CBA, during this process, provided documentation to the employees bargaining representative which meant that it didn’t press the making of the order.
THE JURISDICTIONAL POINT
[12] The CBA argued that one of the prerequisites for making the application had not been met and that the prerequisites must be assessed at the time the application is made.
[13] In particular, CBA submitted that the employees bargaining representative had not complied with s.229(4)(c) of the Act. This section provides:
“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.”
[14] In support of its proposition, CBA drew attention to the timeframe in which it was asked to respond to a letter expressing the concern of FSU.
[15] On 24 December 2009 the FSU wrote to Mr G Fredericks, Executive Legal Counsel and Head of Workplace Advisory Group expressing its concern about the decision of CBA to “unilaterally increase salaries by 2%” despite being engaged in enterprise negotiations. FSU referred to the 1.5% increase granted on 1 July 2009 which it stated was also granted during negotiations. It stated:
“CBA failed to disclose relevant information in a timely manner in accordance with your good faith bargaining obligations. The FSU has requested further details, responses or information from CBA about its pay proposals at a number of negotiation meetings during 2009. CBA has refused on several occasions to respond to FSU proposals in relation to pay, even after months of negotiations, CBA then proceeded to make unilateral payments to employees.” 4
[16] In that letter FSU requested as a matter of urgency:
“
• A written response addressing our concerns provided by 8 January 2010.
• Alongside your written response, documents outlining projected employee budget and spend figures for the next 2 calendar years.
• Documents relied upon by the bank for 1 January 2010 performance pay increase which details the PFR rating for the period ending 30 June 2009, that show the number of employees who achieve each performance rating but not limited to “meets expectation” and above and “needs improvement” and “satisfactory” broken down according to grade. We also request that identity and number of employees in each grade who for any reason do not have a PFR rating.
• A meeting following a receipt of your response as soon as possible with the appropriate CBA representative/s that has the necessary authority to discuss the FSU’s pay claim.
• Undertakings that no further unilateral pay offers will be made to CBA employees while negotiations are on foot.”
[17] CBA responded to the letter on 6 January 2010. 5 It advised that Mr Fredericks was on leave but he had asked that a response be given. CBA denied that it had acted in breach of its good faith obligations in relation to the 2% pay increase. CBA drew attention to the fact that the FSU letter was received after noon on 24 December and that the relevant persons were on leave. It further advised that it would not be in a position to respond in detail to the letter until after 18 January. Finally, it stated that it did not understand the matter to be urgent as further negotiations had been scheduled for February.
[18] The application to FWA was made by the employees bargaining representative on 12 January 2010.
[19] CBA referred to authorities 6 about the need to adhere to the prerequisites contained in the Act together with the time for assessing whether or not the prerequisites have been meet.
[20] The need to apply the Act in relation to the prerequisites to establish jurisdiction is self-evident and no challenge is taken with that proposition.
[21] Three issues remain however. Firstly, was the relevant bargaining representative given a reasonable time to respond? Secondly, does s.229(5) have any role to play? Finally, what is the time for assessing whether or not the prerequisites are met?
[22] As to the first point, CBA essentially rely upon the timing of the letter 7 forwarded to it (24 December) and the unavailability of the key personnel who could deal with the matter. FSU, on the other hand submit that the response was made by CBA, namely, that it denied that it had acted in breach of good faith bargaining obligations.
[23] True it is that CBA went onto to say that it would not be able to respond in detail but the fact remains that it considered the extensive allegations made against it by FSU and provided it with a response. The detail of which would be forwarded later. The letter from CBA was sent from its legal services section so I conclude that there was no uncertainly about the denial, nor was it given without proper reflection. In short, it responded and in an informed way.
[24] As Mr Goot correctly submitted, in his application for permission to appear, proceedings of this nature are a mixture of law and fact. These are not inexperienced parties. Even the finest slicing of arguments should not be allowed to give way to technicalities which conceal rather than illuminate the relationship. To do otherwise would be to introduce into notions of good faith bargaining endless technical arguments rather than permitting the process identified by s.3(f) of the Act to operate. Section 3(f) states:
“3 Objects of this Act
………..
(f) Achieving productivity and fairness through an emphasis on enterprise-level collective bargaining by simple good faith bargaining obligations and clear rules governing industrial action.” (The underlining is mine.)
[25] My conclusion is fortified by the fact that subsequent efforts by both the parties and FWA did not advance the matter significantly on the key points. That is, the conclusion expressed in the CBA letter of 6 January 2010 remained true until the matter was reserved on 11 March 2010. Except for the provision of some material and more detail about other matters foreshadowed by CBA in its letter, both it and the employees bargaining representative maintained the views they held when the matter was first agitated between them. The additional passage of time did not demonstrate that further and better reflection may have given rise to a resumption of more informed bargaining. This is not a criticism of CBA or its employees, simply a statement of the factual position which existed between two experienced bargainers.
[26] Against that background I find that the perquisites contained is s.229(4) have been met. Given my conclusion I do not need to turn in detail to s.229(5) although if I am wrong in my primary finding then clearly it would have a role to play but my reasons need not, at this stage, be outlined.
[27] Given that:
- an application has been made, and
- the applicant has complied with the requirements of s 229(4) of the Act,
there is jurisdiction to deal with the matter.
[28] FWA must now be satisfied that it is reasonable in all the circumstances to make an order. Argument was put by CBA that it is only those circumstances which obtained prior to the making of the application which are relevant to what is reasonable in all the circumstances. I disagree. In my view it would be artificial to confine consideration only to those circumstances which obtained prior to the making of the application.
[29] An absurdity could result if during proceedings, one of the bargaining parties made a concession on an important matter which could not be taken into consideration. The discretion contained in s.230(1)(c) must be broad and have regard to all the circumstances up to the making of the order so that the order has real work to do in the dynamic environment of negotiations. However, that said, the conclusions reached in this matter relate to conduct which occurred prior to the application being made.
BARGAINING IN GOOD FAITH—THE BACKGROUND
[30] I now turn to the central complaint by the employees bargaining representative that CBA has failed to bargain in good faith. That is, the two unilateral pay increases given by CBA to its staff whilst it was negotiating.
[31] Witness evidence was called by both CBA and FSU which gave the circumstances surrounding the negotiations. Those witnesses were:
- Ms Wendy Streets (FSU)
- Mr Geoff Derrick (FSU)
- Ms Julia Angrisano (FSU)
- Ms Louise Arnfield (FSU)
- Mr Glen Federicks (CBA)
[32] Whist the evidence is helpful in understanding the full dynamics of the negotiations and informs the background to the conclusions, it is the agreed facts document which is of the most assistance.
[33] There is no dispute that:
- bargaining was taking place between CBA and the employees bargaining representative.
- CBA decided on two occasions to grant an increase to its employees independent of its negotiations with its employees which were occurring at the time. The first was by way of a letter from the CEO to all staff 8 and the second was, again, by way of a letter from the CEO addressed to all staff.9
[34] There are a number of views expressed by the witnesses about the nature of the negotiations and the reasons why the decisions were taken, which are relevant, but again I need go no further than the statement of agreed facts.
[35] The relevance of the first increase of 1.5% paid in July of 2009 was addressed by FSU. It submitted that Part 5 of Schedule 13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that FWA may take into account conduct engaged in by bargaining representatives while bargaining for a collective agreement. CBA submitted that good faith bargaining provisions did not apply at the time the decision was made in April of 2009 and therefore it could not have breached good faith bargaining requirements.
[36] It is clear that I can take the July increase into account but it would be wrong to regard that as overly prejudicial to CBA. At the time the decision was taken CBA was acting in a manner which was consistent with its approach since 2004 when the agreements expired. However, what is relevant is the negotiating position of CBA at the time. It is to that matter to which I now turn.
[37] The negotiating position of CBA during 2009 was dealt with by Mr Fredericks in his witness evidence. Mr Fredericks stated:
“During the negotiations, the FSU sought to discuss pay with the Bank. During meetings in 2009, the Bank explained to the FSU its reasons for not making a pay offer. The reasons given by the Bank included the impact of the global financial crisis on the market outlook for different parts of the Bank’s business, as well as the Bank’s preference to negotiate conditions first. The global financial crisis created very significant difficulties in terms of the Bank formulating a pay offer for the proposed 18 month duration of an enterprise agreement.” 10
[38] Later he went to the period after 1 July 2009:
“At the next meeting on 4 August 2009, Ms Chapman said that the Bank would not be tabling an offer at the next scheduled meeting on 20 August 2009 and that it would not be agreeing to the pay rise the FSU had claimed effective in January 2010, as there was no market certainty for the business at that time. Ms Chapman indicated that she anticipated the Bank would consider whether agreement on conditions was sufficiently advanced to make a pay offer in September 2009, after a meeting of its Executive Committee.” 11
[39] In putting the position of the Bank at the time of the hearing, Mr Fredericks stated:
“In the Bank’s view, there is little point in making a pay offer if the parties do not genuinely believe agreement can be reached between them on the other important conditions. At the time of making this statement significant items from each party’s ‘big ticket items’ identified in paragraph 21 remain outstanding.” 12
[40] It can be seen that as at 25 January when Mr Fredericks signed his witness statement there had been no wage offer from CBA to its employees in the collective bargaining forum. To my knowledge, this position has not changed.
[41] It is plain that CBA began with two reasons for not making a pay offer. The first was the uncertainty created by the GFC and the second was the need to see some movement in the ‘big ticket items’ in relation to conditions.
[42] Notwithstanding those concerns expressed to the employees bargaining representative two unilateral wages increases were granted to employees without preconditions.
[43] It is worth pausing and noting that the FSU is the bargaining representative of the employees and that the agreement, if reached, will be between the employees and the CBA. This is unlike previous legislation where a registered organisation could have been the party bound. Under the Act it is the employees with whom the agreement is made. 13
[44] The complaint made by the employees bargaining representative is that whilst CBA is telling its employees, through the bargaining representatives, that it will not make any offer on wages unless some preconditions are met, it has on two occasions implemented a wage increase without those preconditions. In short, CBA appears to have a more onerous approach to wage increases when its employees seek to be represented collectively.
[45] Putting to one side the July 2009 increase, it is clear that the January 2010 increase was done against the background of new legislation and a continuation of the view put to the bargaining representative that no offer would be made to employees without preconditions.
THE LEGISLATIVE SCHEME AND ARGUMENT
[46] Section 228 of the Act provides:
“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.”
[47] These obligations must also be seen against the background of the objective contained in s.3(f) of the Act as referred to earlier.
[48] FSU argue that CBA has not met the obligations contained in s.228(1)(b) and (c) in that it has not “disclosed relevant information in a timely manner” and has not refrained from “capricious or unfair conduct that undermines freedom of association and collective bargaining”. It submits that the exemptions contained in s.228(1)(b), namely the information being confidential or commercially sensitive, must be asserted and demonstrated. No such argument was advanced.
[49] As to the disclosure of relevant information, other than confidential or commercially sensitive material, FSU submits that two areas are relevant. The first is its current position on pay and the second is such information as CBA possesses relating to its capacity to pay. In both of these matters FSU submits that CBA has not responded appropriately to the proposals it has put in negotiations. FSU referred to the decision in National Union of Workers v Defries Industries Pty Ltd where Whelan C granted bargaining orders. FSU drew attention to two paragraphs in the decision:
“Section 228(1)(b) refers to disclosing relevant information in a timely manner. The reason for the disclosure of information is to allow the other bargaining representative(s) to give consideration to the bargaining representative’s position. In my view, the employer failed to provide relevant information on two occasions. First, prior to the meeting on 24 July 2009 Mr Poxon had prepared a document which included the company’s position on what matters in the NUW draft were ‘negotiable’ and what were ‘non-negotiable’. By failing to reveal the employer’s position, the NUW had no opportunity to consult its members on whether it should continue to pursue ‘non-negotiable’ matters or not or whether to narrow the agenda to the matters which were ‘negotiable’.
Second, the failure to indicate to the NUW that any changes to the employer’s draft provided to them on 30 July 2009 could only be considered if they were provided by 2 August denied the employees represented by the NUW the ability to put a position which could be considered by the employer, prior to a final document being distributed.” 14
[50] FSU submitted that this decision supported its proposition that CBA should have responded to its proposals so that it could discuss how to continue with the negotiations with those on whose behalf it was bargaining.
[51] As to the proper application of s.228(1)(e), FSU submitted that CBA’s position was deceptive in that it repeatedly advised that it could not give a position on pay and yet it gave two unilateral increases to employees. It submitted: “We say it’s self evident that there was a point in time that the bank had such a position. This was not communicated to us.” 15 In relation to the January 2010 increase the FSU was advised the day before employees were advised but some time after the decision was taken.16
[52] FSU further submitted that the bank had undermined collective bargaining:
“In relation to 228(1)(e) we submit that the actions of the bank undermine collective bargaining in the following ways: the respondent implemented pay rises outside of the negotiating process; a process where the FSU is the negotiator and, after 1 July 2009, was the sole bargaining representative. We voiced a clear expectation that pay would be negotiated and that expectation was also communicated to the employees who were to be covered by the proposed agreement.
The actions of the respondent, we say, undermined the relevance of the FSU in negotiations and disregarded the desires of employees to have the FSU negotiate collectively for an enterprise agreement concerning employment conditions and pay increases. We further say that we were provided with such little notice prior to the bank’s pay announcements that there was no opportunity for us to consult directly with the employees we were representing in the negotiations or to put forward a counter-offer. We also say that the respondent's written communications to staff made no reference to enterprise bargaining, nor the ongoing negotiations with the FSU, effectively sidelining us in relation to pay increases.” 17
[53] FSU then turned to authorities 18 under the National Labour Relations Act in the United States of America to demonstrate the scope of orders made. In particular my attention was drawn to a reference to the decision in Bottom Line Enterprises [302 NLRB 373 (1991)] where the Board held that during negotiations, “an employer’s obligation to refrain from unilateral changes extends beyond the mere duty to give notice and the opportunity to bargain, it encompasses a duty to refrain from implementation at all, unless and until an overall impasse has been reached in bargaining as a whole”.
[54] In response CBA argues that it employs a large number of people where about slightly less than half are covered by the current enterprise agreements 19 and that its practice of reviewing employee remuneration annually since 2004 is a well established practice. It further submitted that at the time the increase was given to staff on 1 January 2010, any negotiated pay increase would not take effect until July 2010 and that negotiations would not re-commence until February 2010.
[55] As to the allegation that CBA did not respond to its employees pay claim it submitted that it did. CBA submitted that it responded by advising that in light of the GFC and the approach it had taken on conditions matters it would not be making a pay offer. In short, it submitted that it did respond but that the employees bargaining representatives did not like the response.
[56] In addressing the allegation that its conduct was capricious or unfair and undermined collective bargaining, CBA submitted:
- the January pay increase was in the context of earlier pay increases and was not capricious or unfair,
- it had already given two pay increases during negotiations (2008 and April 2009),
- the January pay increase was a follow-up increase from the July increase,
- the next increase was not due to occur until July 2010.
[57] FSU submitted that it expressed concern about the unilateral pay increases when they took place because of the existence of negotiations. Further it did not concede that any negotiated increase would operate from 1 July 2010.
CONCLUSION
[58] To begin I have decided not to deal with the authorities from the NLRB in relation to bargaining in good faith. As it will be seen, this is a matter which I believe is of relatively short compass. Further, there are a number of extra factors which may bear upon the establishment of the US jurisprudence in relation to good faith bargaining, including the establishment of exclusive bargaining rights, which do not find legislative parallels in Australia. I don’t find it necessary to examine the reasoning why certain conclusions have been arrived at and any parity of reasoning which may apply to the particular circumstances of this case.
[59] It is convenient to deal with the conclusions in relation to each of the orders sought.
Order 1
That the Commonwealth Bank of Australia provide a negotiating position on pay to the FSU within 7 days of making this order.
[60] CBA attack this proposed order on the basis that it requires CBA to negotiate and that s.228(2)(a) of the Act prohibits such an order together with the authority established in Asahi Diamond Industrial Australia Pty Ltd v Automotive, Food Metals and Engineering Union [59 IR 385] (Asahi). The approach by FSU to this order is to express its concern that unilateral pay increases are being granted in circumstances where CBA is saying it will not make an offer on wages. FSU seek that CBA put its bargaining position on the table so that it can consider the all the elements of any proposal by CBA.
[61] I disagree with CBA that such an order would be contrary to both the Act and the authority found in the Asahi decision. CBA has decided to bargain and in an appropriate case it may be that the position adopted by the parties in bargaining is such that orders may be made about the disclosure of relevant information. In this case, for example, the stance adopted by CBA is that it has two positions on wages. The first position it portrays to its employees directly is that it will grant wages increases without requiring anything from them. This is evident from the decision to increase wages in January 2010. The second position is that before it will make an offer to its employees through the collective bargaining forum in relation to a wage increase, the employees must meet certain hurdles in relation to conditions of employment and the position in relation to the GFC must be clearer.
[62] I shall return to this shortly but on the general proposition that an order should be made requiring CBA to put a wages offer on the table I decline to do so.
[63] I concur with the decision of His Honour Senior Deputy President Kaufman where he said:
“In my view FWA should be slow to interfere in the legitimate tactics undertaken by parties during the bargaining process unless an applicant for a bargaining order has demonstrated that there are sound reasons for so doing. There needs to be satisfaction that the good faith bargaining requirements are not being met. An order under s.230 is discretionary and may only be made if FWA is satisfied that it is reasonable in all the circumstances to make the order.” 20
[64] There are arguments which support the proposition that all matters over which there is bargaining taking place should be open so that each party can cost its proposals against the others objectives. In some cases a wages offer may lead to the removal of a claim for a particular conditions matter. On other occasions an employer may be concerned that its overall labour costs may be unsustainable unless it achieves certain conditions matters and to put a monetary figure on the table may create a floor it can not go below. Each negotiating party will act in their own interests and levels of confidence must be established if progress is to be made.
[65] However, in my view, and in the circumstances of this case, the tactics of negotiation have not been such so as to warrant intervention by requiring CBA to decide on a wages offer and put it on the table.
[66] However, CBA appears to have two rules for dealing with its employees who are seeking to bargain. In the first place it expresses concerns about the GFC and reaching agreement on conditions matters before any wage increase can be discussed but at the same time it is prepared, outside of the collective bargaining forum, to deal with those same employees and to commit itself to a wages outcome. It is besides the point to argue that slightly less than half of the employees are the subject of bargaining. The point is whether or not there can be a different position put to the employees through their bargaining representative as opposed to the employees directly.
[67] This approach can be viewed as undermining collective bargaining. The FSU make a strong point that its interaction, of behalf of CBA employees, with CBA on wages is far more onerous that CBA is prepared to be with its employees directly.
[68] Without travelling more broadly into the concept of unilaterally altering terms and conditions of employment during bargaining, it can not be that an employer is negotiating in good faith if it is able to alter terms and conditions or employment of persons, on whose behalf bargaining is taking place, for reasons other than those advanced to the bargainers.
[69] In accordance with s.230(3)(a)(i) of the Act, I am satisfied that CBA has not met the good faith bargaining requirements for the disclosure of relevant information. I am also satisfied that its conduct in having two different positions on wages: one for its employees in the collective bargaining forum and one for its employees directly, is unfair conduct which undermines collective bargaining.
[70] However, I decline to go as far as the FSU would want in its proposed order. I am prepared to take a small step, with limited intervention, and to make an order that CBA advise the employees bargaining representatives within 24 hours of any decision which changes its position of not considering increasing wages to employees. In my view this is relevant information which should be disclosed in a timely manner. The order I will make is clearly within the scope of the relief sought and over which there has been considerable argument and evidence. Section 599 of the Act provides that FWA is not required to decide an application in the terms applied for.
Order 2
That any further negotiations on pay increases be facilitated by FWA in conference or any other way that FWA sees fit.
[71] FSU argue that the negotiations may progress better if FWA facilitates them given that a level of trust with the CBA, it submits, has been lost.
[72] I do not propose to make such an order. Section 240 of the Act provides that a bargaining representative may apply to FWA for it to deal with a bargaining dispute. In my view, given the existence of a specific provision dealing with when FWA may or may not assist with bargaining it would be more appropriate for any application to be made in accordance with that section.
Order 3
That CBA provide documentation to the FSU and FWA outlining projected employee budget and spend figures for the next 2 calendar years within 7 days of making this order.
[73] CBA argue that it does not have any documents of this kind and this has not been challenged by FSU. Accordingly no order will be made.
COMMISSIONER
Appearances:
G. McConville for the Finance Sector Union of Australia.
R Goot, SC on behalf of the Commonwealth Bank of Australia.
Hearing details:
2010.
Sydney:
January, 27,
February, 2,
March, 2, 3 and 11.
1 See paragraph 17 to 24 of the agreement statement of facts.
2 The Commonwealth Bank of Australia (Core) Enterprise Bargaining Agreement; The Commonwealth Bank of Australia Direct Banking Enterprise Bargaining Agreement 2002; the Commonwealth Bank of Australia Retail Banking Service Enterprise Bargaining Agreement 2002 and the Commonwealth Bank of Australia Technology, Operations and Procurement Enterprise Bargaining Agreement 2002.
3 See letter dated 1 March 2010 letter on file from Mr G. McConville addressed to Mr J. Fox.
4 Attachment 6 to Statement of Agreed Facts.
5 Attachment 7 to Statement of Agreed Facts.
6 Liquor, Hospitality and Miscellaneous Union v Mingara Recreation Club [2009] FWA 1442; Liquor, Hospitality and Miscellaneous Union c Coca-Cola Amatil (Aust) Pty Ltd [2009] FWA 153.
7 See letter dated 24 December 2009 on file from Ms J. Angrisano addressed to Mr. G. Fredericks.
8 Attachment 2 to Statement of Agreed Facts.
9 Attachment 4 to Statement of Agreed Facts.
10 Exhibit G3, paragraph 16.
11 Ibid, paragraph 20.
12 Ibid, paragraph 39.
13 See s.172(a) of the Act.
14 [2009] FWA 88 at paragraphs 64 and 65.
15 Transcript PN1910.
16 Transcript PN1455—1478.
17 Transcript PN1914 and 1915.
18 353 NLRB No 28—Hanson Aggregates BMC, INC and 353 NLRB No 60 Pavilions at Forrestal.
19 Transcript PN1805.
20 [2009] FWA 750 at paragraph 20.
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