Flinders Operating Services Pty Ltd T/A Alinta Energy v Australian Municipal, Administrative, Clerical and Services Union - [2010] FWA 4821

[2010] FWA 4821

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.229—Bargaining order

Flinders Operating Services Pty Ltd T/A Alinta Energy
v
Australian Municipal, Administrative, Clerical and Services Union; Association of Professional Engineers, Scientists and Managers, Australia.
(B2010/50) (B2010/53) (B2010/54)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)
(B2010/51) (B2010/52)

COMMISSIONER HAMPTON

ADELAIDE, 30 JULY 2010

Section 229 applications for bargaining orders – good faith bargaining – multiple but related applications heard together – permission to be represented – nature of matter considered and permission granted – whether employer provided reasonable opportunity for unions as bargaining representatives to respond to concerns – whether applications should still be determined - whether bargaining representatives have met good faith bargaining obligations – multiple bargaining processes commenced by employer relating to different parts of its business – scope of negotiations in dispute – whether refusal to meet reasonable in circumstances – whether absence of articulated claims contrary to bargaining requirements - use of single bargaining unit to communicate on behalf of bargaining representatives – not all members of SBU relevant to each of the negotiations – whether absence of response for rejection of proposed agreement represented good faith failure – role of workplace delegates in the process - individual employees nominated as bargaining representatives – whether incited to do so – obligations of bargaining representatives - whether orders should be issued.

BACKGROUND

[1] This decision deals with five related applications for bargaining orders as made by Flinders Operating Services Pty Ltd T/A Alinta Energy (Alinta or the employer) pursuant to s.229 of the Fair Work Act 2009 (the Act). The bargaining orders are sought against four registered organisations in their capacity as bargaining representatives under the Act.

[2] The applications arise in the context of proposed enterprise agreements to apply to the employees of Alinta at three parts of its South Australian operations; namely, the Augusta Power Station (Augusta), Leigh Creek Coal Fields (Leigh Creek) and its Adelaide corporate head office (head office).

[3] Alinta has proposed that there be separate negotiations leading towards an enterprise agreement for each of these parts of its operations however the process and focus of the negotiations, and the obligations of the parties in that context, have been and remain in dispute. Separate applications have been lodged by Alinta relating to each of the three proposed agreements. By consent, these matters have been heard together.

[4] The respondent unions and their involvement in each of the matters can be summarised as follows.

[5] The Australian Municipal, Administrative, Clerical and Services Union (the ASU) is a bargaining representative in each of the three proposed agreements.

[6] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) is a bargaining representative in relation to the proposed Leigh Creek and head office agreements.

[7] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) is a bargaining representative for the proposed Augusta and Leigh Creek agreements.

[8] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU) is a bargaining representative for the proposed Augusta and Leigh Creek agreements.

[9] I will for convenience describe all of these union parties collectively as “the respondent unions”.

[10] The Construction, Forestry, Mining and Energy Union (the CFMEU) is also a bargaining representative for the proposed Augusta and Leigh Creek agreements and appeared in these matters. However, Alinta does not seek bargaining orders against the CFMEU.

[11] Each of the respondent unions and the CFMEU are bargaining representatives in relation to the relevant proposed agreement by virtue of s.176(1)(b) of the Act.

[12] The respondent unions provided coordinated submissions led in the main by the ASU. The CFMEU also supported the submissions of the respondent unions.

[13] I also note that the Transport Workers Union of Australia (the TWU) is a bargaining representative for the proposed Leigh Creek agreement. Alinta did not seek orders against the TWU and it did not seek to appear in this matter.

[14] There are also some 10 employees from the Augusta Power Station (originally 14 but four have withdrawn) who have nominated themselves as bargaining representatives under the Act (the employee bargaining representatives). The employee bargaining representatives were provided with details of the relevant application but no orders have been sought against them and none sought to be separately represented in these proceedings.

PERMISSION FOR ALINTA TO BE REPRESENTED BY A PAID AGENT

[15] Mr Bakewell from EMA Consulting Pty Ltd (EMA) sought permission to appear and represent Alinta pursuant to s.596 of the Act.

[16] Mr Thomas representing the CEPU, and acting on behalf of the respondent unions, opposed the granting of permission.

[17] At the outset of proceedings on 28 June 2010, having heard from the parties on this issue, I granted permission for Alinta to be represented. In so doing, I indicated that I would subsequently provide reasons for that decision, which I now do.

[18] Section 596 of the Act provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before FWA (including by making an application or submission to FWA on behalf of the person) by a lawyer or paid agent only with the permission of FWA.

(2) FWA may grant permission for a person to be represented by a lawyer or paid agent in a matter before FWA only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) FWA’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

[19] Mr Bakewell and/or EMA are not bargaining representatives in relation to any of these applications and the circumstances of ss.(3) and (4) above do not apply. Accordingly, as Mr Bakewell would be a paid agent in this case, permission could only be granted where one of more of the circumstances contemplated in s.596(2) of the Act are found to apply.

[20] EMA contended that the matter was complex, involved the consideration of important elements of the Act and in that light, the representation of Alinta would enable the matter to be more efficiently and fairly dealt with by Fair Work Australia.

[21] The respondent unions contended that the issues involved in the applications were relatively straightforward and that Alinta was a large corporation having specialist human resource (HR) and other senior staff that were in attendance and could effectively represent its interests.

[22] The intent of the Parliament regarding the question of representation is expressed in the following passages of the Explanatory Memorandum published at the time of the Fair Work Bill’s introduction in 2008:

“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

...

2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”

[23] It is evident from the terms of the Act that permission is not to be granted lightly and only where circumstances warrant that course of action.

[24] As can be seen from the scope of factual and legal issues dealt with in this decision, this matter is complex and involves the consideration of multiple applications canvassing a number of key aspects of the Act. Indeed, as contended by the respondent unions in their own submissions, some of these aspects have not yet been extensively considered by Fair Work Australia.

[25] Further, although the employer clearly has HR and other management expertise, those who might otherwise represent Alinta in these proceedings were themselves due to give evidence and be cross-examined. There were also multiple witnesses to be called in this matter. The respondent unions were represented by an experienced advocate by virtue of Mr White for the ASU and Mr Bakewell is an experienced lay advocate.

[26] Given all of these circumstances, I was satisfied that the matter would be dealt with more efficiently by Fair Work Australia with Alinta being represented (s.596(2)(a)). In addition, as the evidence of the alternative HR representative or other employer personnel would be challenged under cross-examination and issues of credit might arise (as turned out to be the case) it would be unfair not to grant permission for representation in this particular case (s.596(2)(b)).

THE AMENDED ORDERS AS SOUGHT BY ALINTA 1

[27] The orders relied upon in relation to each matter are different to some degree and reflect the various circumstances applying in each case.

[28] It is however sufficient for present purposes to note that the proposed orders include the following elements:

An obligation for the respondent unions to attend a specified number of meetings in relation to each of the three agreements being proposed by Alinta

An obligation for the respondent unions to supply certain information including, in the case of the ASU and APESMA, a log of claims, and for all unions, a detailed response to the draft Leigh Creek agreement as proposed by the employer

A requirement that the respondent unions discontinue corresponding with Alinta under the auspices of the Electricity Industry Single Bargaining Unit of Unions (the SBU), and

A requirement that the ASU take certain steps to disclose to the employee bargaining representatives the operation of the Act and their individual obligations in that context.

THE CASE PRESENTED BY ALINTA

[29] I will later in this decision outline the grounds for each of the proposed orders. This will include consideration of the evidence and submissions provided by Alinta in support of each proposed order.

[30] I will also separately deal with an overview of the history of negotiations in light of the evidence before Fair Work Australia and consider the capacity for Alinta to bring this application at the point that it did.

[31] It is however appropriate to initially outline the broad propositions underpinning the applications as contended by the employer.

[32] Alinta contends that there are particular financial and productivity imperatives that require a more efficient and effective bargaining process than that as adopted in past enterprise bargaining rounds. In light of these factors, the employer flagged its concerns to all of the relevant unions about the process and outcomes that underpinned the negotiation of the current agreements and sought to engage the unions in a joint review of those concerns between October and November 2009.

[33] As a result of the review conducted in November 2009, Alinta provided the unions with an opportunity to suggest improvements to the negotiation process and requested feedback on no less than three occasions. The employer contends that there was minimal participation and feedback from the majority of unions.

[34] In particular, Alinta contends that it has sought to provide a more structured and efficient negotiating process and suggested a process to achieve that end in a series of meetings between 23 November and 1 December 2009. It then sought feedback on these suggestions from the respective unions and generally received little or no feedback from them.

[35] The employer signalled its intention to commence the negotiation for the Augusta agreement, the Leigh Creek agreement and the Head Office agreement, and issued separate Notice of Employee Representational Rights (NERR) in support of each of the three proposed agreements as required by s.173 and s.174 of the Act between 15 and 22 December 2009.

[36] Alinta contend that it is entitled to issue a NERR for a proposed agreement that complies with the Act. That is, the employer is not constrained to issue a NERR that mirrors the scope of each of the current agreements. However, the proposed enterprise agreement must be one that is geographically, operationally or organisationally distinct, or otherwise the proposed group of employees must be fairly chosen as contemplated by s.186(3A) of the Act.

[37] The NERRs as issued were said to comply with the requirements of the Act and reflected a scope that would meet the employer’s critical business imperatives. This, it was contended, is consistent with the general objectives of the Act in respect to bargaining.

[38] The process for negotiating the agreements is deemed to have commenced under the Act upon the commencement of the notification time (s.173(2) of the Act), which in this case was when the employer initiated bargaining for the agreements by sending out the NERRs.

[39] In this case, a process for bargaining under the Act was initiated separately for each of the three agreements and it was said that the obligation to bargain in good faith thereafter arises separately in respect to each such proposed instrument. Accordingly, it was argued that the good faith bargaining obligations apply separately and uniquely to each proposed agreement.

[40] Alinta also argues that it is the unions as formal bargaining representatives under the Act that have the relevant statutory duties and that it, as the employer, owes its duties to the unions. In that context, workplace union delegates (who are not formally nominated as bargaining representatives under the Act) do not have formal rights to participate in the negotiations. However, Alinta asserts that they have recognised the benefits of their participation and have made reasonable arrangements for these delegates to attend the proposed bargaining meetings and for the union officials to have access to the delegates both before and after these meetings.

[41] Alinta contends that each of the respondent unions as bargaining representatives have breached one or more of the good faith bargaining obligations as established by s.228 of the Act. These involve a combination of refusing to meet at reasonable times, failing to provide information and responses as reasonably required, and capricious or unfair conduct that undermines freedom of association or collective bargaining conduct.

[42] The employer argues that despite all reasonable endeavours to resolve the outstanding issues, including various concessions made in an attempt to have negotiations proceed after the lodging of these applications, an impasse remains. In that context, it contends that Fair Work Australia should find that the respondent unions have failed to meet their good faith bargaining obligations and provide orders that establish a proper basis for future negotiations between the parties.

[43] Alinta lead evidence from the following members of its staff:

Mrs Joanne Jones – Human Resources Advisor – Central Region

Mr David Wallis – Manager, Leigh Creek Mine

Mr Andre Kuys – Plant Manager, Augusta Power Station, and

Mr Greg McIntyre – Maintenance Manager, Northern Power Station (part of the Augusta Power Station complex).

[44] All of these witnesses supplied statements and were cross-examined by the respondent unions.

[45] The employer tendered a significant volume of written material which provides much of the context of this matter. 2

THE CASE PRESENTED BY THE RESPONDENT UNIONS

[46] As with the employer’s case, I will at this stage outline only the broad propositions underpinning the respondent unions’ opposition to each of these applications. Their contentions on each of the alleged grounds will be further canvassed in due course.

[47] The respondent unions contend that each of the applications is premature in that the statutory requirement to provide a reasonable opportunity to respond to the alleged concerns of the employer has not been afforded in this case. In that context, Fair Work Australia was urged not to exercise its discretion to determine the matters but rather dismiss each application and allow the parties to resolve the issues through the bargaining process.

[48] Should Fair Work Australia deal with the substance of the applications, the respondent unions contend that each application should be dismissed on its merits. This should follow as it was argued that Alinta had failed to establish a case that the respondent unions had not met their good faith bargaining obligations. Further, the proposed orders were said to be inappropriate and unwarranted on a number of grounds.

[49] The respondent unions assert that the history of negotiations over the last 15 years or so had seen the existing agreements with this employer being negotiated together through a single bargaining process. Although there were a number of agreements with some site specific matters, the majority of the provisions were common and a single bargaining process was considered to be the most efficient and fair way forward.

[50] The scope of negotiations was an issue between the parties with the respondent unions contending that a single agreement, with the exception of a separate maintenance employees’ (trades) agreement, should be considered. In that light, it was proposed that any reluctance to participate in a process where the outcome was predetermined by the negotiation structure established by the employer was not unreasonable.

[51] In any event, the respondent unions contended that they had not refused to meet but rather sought meeting arrangements that recognised the vast distances between the various work sites and the legitimate role to be played by workplace union delegates. In that latter context, it was argued that it was inappropriate for the employer to attempt to reserve the right to determine if such delegates were able to attend bargaining meetings.

[52] The respondent unions argued that the employer had confused the different role employees fill as workplace union representatives and as bargaining representatives. They submitted that the role of a workplace union representative, eg a shop steward or workplace delegate, differs significantly from their role as a workplace enterprise bargaining representative. That is, while it is often the case that shop stewards or workplace delegates also represent union members in enterprise agreement negotiations, the roles were said to be different and differently founded.

[53] In that context, it was suggested that it was also often the case that union members are represented in enterprise agreement negotiations by union members who are not shop stewards or workplace delegates.

[54] In relation to the meeting schedule and related arrangements, the respondent unions contended that they had sought a reasonable program for meetings by proposing holding single meetings for negotiations about matters common to the three agreements.

[55] The respondent unions denied that they had breached any of the good faith bargaining obligations of the Act but in turn contend that Alinta had failed to recognise its obligation to the employee bargaining representatives. Although this contention was not comprehensively dealt with in submissions, I infer that this was raised in the context of the employer seeking confirmation of the status of the employee bargaining representatives and in claiming that the ASU should confirm the operation of the Act with these employees.

[56] The respondent unions contend that each of the respective unions had sought to identify and resolve the fundamentals of the negotiation process and that it had been confronted by an employer that had ignored the fundamentals of fair negotiations and the requirements of the Act, and based a strategy on “arrogance, division and control of the process.” These applications were said to be a case where the employer was seeking the assistance of Fair Work Australia to implement “a divisive, autocratic approach to industrial relations that undermines collective bargaining”. 3

[57] The respondent unions did not lead any evidence in this matter and chose to rely upon their cross-examination of the employer’s witnesses and upon the comprehensive book of documents tendered by Alinta. 4

THE GENERAL HISTORY OF NEGOTIATIONS

[58] I will deal with much of the detail of this matter when considering the respective issues raised by the applications in the context of the good faith bargaining requirements of the Act. However, some broad factual context is relevant.

[59] The following findings have been taken from the evidence provided by Alinta, subject to the impact of cross-examination. In approaching this matter, I find that each of the witnesses gave their evidence truthfully and openly. To the extent that there are differences between the positions of the employer’s witnesses, these are not of significance to the substance of the case and largely a consequence of different roles and perspectives.

[60] Alinta previously operated as Babcock and Brown Power but for present purposes it is the same entity.

[61] It is common ground that there are presently four collective agreement-based transitional instruments applying to the relevant employees as follows:

Augusta Power Station and Leigh Creek Coal Field Trade and General Skilled Employees Union Collective Agreement 2007 - 2010

Augusta Power Station Enterprise Bargaining Agreement (as varied) 2008 - 2010

Leigh Creek Enterprise Bargaining Agreement (as varied) 2008 - 2010

BBP Adelaide Enterprise Agreement (as varied) 2008 - 2010.

[62] These agreements were negotiated in 2007 and 2008 over an 18-month period. It is evident that this process led to frustrations for all parties including as to the length of the negotiations and the outcomes. In the case of Alinta, these included the number and configuration of the agreements and the lack of consideration of site specific issues. From the respondent unions’ perspective, the fact that some false expectations as to wage outcomes were created by the HR officer then responsible (not Ms Jones) was also particularly unhelpful.

[63] In October 2008, Alinta established a process to review the previous bargaining round and the relevant unions were invited to participate. Some of the unions did participate in the process and all were advised of the employer’s views as to the review outcomes.

[64] During the course of the regularly established consultation meetings conducted in November 2009 (established by the current agreements and held in relation to each of the four instruments) the process to be adopted in the upcoming round of bargaining was discussed. Alinta proposed arrangements including that meetings would be conducted on a fortnightly basis in relation to three proposed agreements; being Augusta, Leigh Creek and head office. Further, these would be scheduled to allow officials to attend each meeting and consult with their members around those meetings.

[65] The proposal to purse three agreements rather than the current four instruments meant that Alinta did not propose to continue with a separate trades agreement presently applying at Augusta and Leigh Creek.

[66] Alinta also proposed that its video facilities would be made available for officials to consult with delegates and a shared website to store and exchange information would also be established.

[67] Although there are limitations associated with these facilities, they do represent an opportunity for the officials and their delegates to hold discussions and to participate in the exchange of information. They are not though a complete substitute for face to face meetings.

[68] In November and December 2009, Alinta sought feedback on their proposals from the relevant unions. The AMWU and CEPU agreed to attend the first two scheduled meetings in relation to the proposed Augusta and Leigh Creek agreements, but confirmed their intention to seek the continuation of a separate trades agreement to apply at both sites. No response was apparently provided by the other respondent unions at that time.

[69] Between 15 and 22 December 2009, Alinta issued the NERR in relation to each of its proposed agreements. As no employees at that time nominated as bargaining representatives under the Act, Alinta took each of the respondent unions, and the CFMEU and TWU, to be bargaining representatives in relation to each agreement where they had membership.

[70] In January 2010, Alinta through its relevant Managers, sent out correspondence to each of the bargaining representatives formally proposing the commencement of negotiations for each separate agreement and requesting that the unions supply their logs of claims in time for the first meetings in February 2010.

[71] In relation to the proposed Augusta agreement, some meetings were held, however little progress was made as a result of various factors including the non-attendance of some or all of the union officials and disputes regarding the meeting arrangements, the number of delegates attending, the scope of the proposed agreement (whether to have a separate trades agreement) and other matters.

[72] In relation to the proposed Leigh Creek agreement, a number of meetings were conducted and the AMWU, CEPU, CFMEU and TWU all provided logs of claims. On 8 April 2010, in the context of a meeting that was abandoned when no union official attended, a proposed agreement was then forwarded by Alinta to each of the relevant bargaining representatives for their consideration.

[73] Earlier, the CEPU and AMWU held paid meetings with their members at Leigh Creek and in February 2010, the AMWU nominated two delegates to attend meetings in relation to Leigh Creek.

[74] On 3 February 2010, the ASU wrote to Alinta and raised concerns with most aspects of the arrangements proposed by the employer. These concerns included the number of meetings (said to potentially be 42 across the three agreements), the number of delegates permitted to attend and the proposed negotiation process itself. The ASU contended that there should be site-specific meetings of site-specific issues and that common issues be dealt with in common meetings. The ASU also indicated that it would provide a log of claims when it was in a position to do so.

[75] Alinta responded to the ASU on 4 and 12 February 2010 and raised its concerns about the timing of the response and the lack of a log of claims.

[76] Various exchanges took place between Alinta and the ASU during February 2010 about these issues. These included exchanges about the degree to which common issues existed and the rights and roles of delegates.

[77] In mid February 2010, 14 employees at the Augusta site provided the local management with notices nominating themselves as bargaining representatives. Alinta confirmed the nomination with each employee, advised that they would be subject to the obligations of a bargaining representative under the Act, sought a log of claims and confirmed the schedule of meetings as then proposed by the employer. Subsequently four of these employees withdrew their notices.

[78] In mid March 2010, APESMA advised Alinta that the negotiation process was being undertaken with “unsubstantiated urgency” and raised concerns with what it contended was an absence of good faith by the employer.

[79] On 12 March 2010, Alinta through its relevant Managers sent correspondence to the relevant unions setting out its understanding as to the status of each of the negotiations and raising various concerns.

[80] Further exchanges took place between the ASU and Alinta in that context. These included a suggestion by the ASU that the employer had not genuinely considered the proposal for a common meeting to discuss common issues and a rejection by Alinta of the “assumption” that the major issues were in fact common across the proposed agreements. The ASU’s position was couched on the basis that Alinta was failing to meet the good faith bargaining obligations of the Act. 5

[81] On 30 and 31 March 2010, APESMA, the CEPU and the AMWU communicated responses and these also included the suggestion that Alinta was not bargaining in good faith and concerns that the employer had refused to alter the meeting arrangements.

[82] In early April 2010, Alinta filed an application pursuant to s.240 of the Act seeking the assistance of Fair Work Australia (the s.240 application). The s.240 application was made by Alinta in relation to the proposed Augusta agreement and it raised alleged issues in relation to matters said to be of concern to each of the respondent unions. These were cited as the employer:

not permitting all nominated union delegates to attend bargaining meetings

not agreeing to negotiate alleged common issues from the three agreements at the same time and place

not agreeing to depart from the scheduled fortnightly meetings, and

not agreeing to continue the separate trades agreement.

[83] On 21 April 2010, the ASU on behalf of the SBU wrote to Alinta indicating that the draft Leigh Creek agreement proposed by the employer was “sub-standard”. The letter also indicated that the unions did not support or agree with the proposal and indicated that negotiations will be able to progress once the earlier issues had been resolved.

[84] The s.240 application was the subject to a conference before O’Callaghan SDP on 22 April 2010. All relevant parties attended. The Senior Deputy President heard from both parties and I understand spoke separately to each group of representatives. The ASU on behalf of the unions contended that there were no issues in dispute and left the conference before any meaningful exploration of the matters as identified by Alinta could be progressed.

[85] I understand from the respondent unions that this position was adopted on the basis that they had not agreed to attend or been consulted in relation to the s.240 application. Further, the issues identified by Alinta were not matters involving the content of the proposed agreement(s) and that the bargaining process issues could and should be resolved directly by the bargaining representatives.

[86] In light of the lack of progress with the issues and the negotiations more generally, on 30 April 2010, Alinta then wrote to each of the respondent unions raising the nature of concerns that are now being alleged in these matters.

[87] On 4 May 2010, APESMA advised Alinta that it was seeking advice on the issues raised and would respond in due course. 6

[88] On Thursday 6 May 2010, the respondent unions in effect contacted Alinta, by email through the SBU, and advised that each of the respective unions had received the correspondence, that they required thorough consideration and that the employer would receive a response within a reasonable timeframe. 7

[89] These applications were filed on Friday 7 May 2010.

[90] On 10 May 2010, the SBU responded to the employer’s concerns and in so doing agreed to meet with Alinta on the dates proposed and further proposed that the members of the SBU and the employer should meet to discuss all of the three agreements rather than conduct separate meetings (for each agreement) as proposed. The SBU response also raised issues about the role of unions as bargaining representatives and communicating a position in relation to the status of the SBU. Also on that date, the ASU in its own right wrote to Alinta and confirmed a willingness to meet and confirmed that it was now the ASU’s contention that a single agreement should apply to Alinta. That correspondence did not however confirm or provide a log of claims or provide details as to the basis that the proposed Leigh Creek agreement had been rejected.

[91] On 26 May 2010, Alinta met with officials from all relevant unions and discussed a number of issues including the schedule of meetings, the concept of common issues being dealt with in joint meetings and the number of site delegates. That meeting involved a genuine exchange of views but did not resolve the issues. The concept of a single agreement as raised by the ASU was however apparently supported by the other unions. Alinta agreed to confirm a position on the other issues which it did on 28 May 2010.

[92] The employer outlined its understanding of the issues and proposed a series of meetings on dates previously agreed with each date having separate discussions to consider each agreement.

[93] A number of exchanges with individual unions then took place about the proposals.

[94] On 9 June 2010, the SBU wrote to Alinta advising that the relevant unions did not agree with the employer’s proposals and in return, proposed a further date of 22 June 2010 to continue discussions on these process issues. The SBU letter also confirmed that the outstanding issues were the alleged capacity for the employer to allow delegates to attend, only at its discretion and the desire of the unions to have the common content issues discussed before the site specific matters.

[95] On or about 10 and/or 11 June 2010, Alinta wrote to each of the respondent unions (and others) and proposed revised arrangements. These included allowing all site delegates to attend (subject only to the need for notice in order to manage operational requirements), common meeting dates for all agreements, the incorporation of common issues on each meeting agenda to follow the site specific matters and an additional meeting as suggested by the SBU. There is no evidence of a response to these proposals until after the first of the revised scheduled meetings.

[96] The first meeting under these proposed arrangements took place on 15 June 2010 and in the absence of any representation from the respondent unions, only the draft Leigh Creek agreement was discussed with the CFMEU and the TWU representatives who attended.

[97] On 18 June 2010, Alinta confirmed to all parties the “progress” made on 15 June 2010 and confirmed its willingness to meet again on 22 June 2010 as originally proposed by the SBU.

[98] Subsequent advice to Alinta from the SBU on 21 June 2010, indicated that the notice provided by the 15 June proposals was insufficient due to the June long weekend and questioned the bona fides of the employer’s proposals given these proceedings. The SBU also indicated that the relevant unions remained willing to engage in genuine discussions and negotiations aimed at achieving properly structured meetings.

[99] The proposed meeting on 22 June 2010 did not proceed, either in the form of a full bargaining meeting or as a further meeting to discuss process issues as earlier proposed by the unions through the SBU.

[100] These matters were heard on 28 and 29 June 2010.

THE CAPACITY TO BRING THE APPLICATION

[101] Section 229 of the Act provides as follows:

“229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.

Multi-enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(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

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

(5) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.”

[102] Alinta is by virtue of s.176(1)(a) of the Act a bargaining representative in relation to each of the matters presently before Fair Work Australia.

[103] The four collective agreement-based transitional instruments applying to the relevant employees are outlined earlier in this decision. These instruments are enterprise agreements for present purposes 8 and each will expire on 31 July 2010.

[104] These applications were filed on 7 May 2010 and accordingly were not made in a period more than 90 days before their nominal expiry date. This meets the requirements of s.229(1) of the Act.

[105] Alinta forwarded correspondence to the relevant respondent unions late on Friday 30 April 2010 9 and that correspondence set out the concerns of the employer for the purposes of s.229(4)(b) of the Act. Although the details vary depending upon the circumstances of each union, each of the letters set out the employer’s position regarding the good faith bargaining obligations of the Act, its view of the s.240 application proceedings and outlining what were described as areas of concern where the relevant union was alleged to not be meeting the statutory bargaining obligations.

[106] It is sufficient for present purposes that I note that each of the grounds now relied upon by Alinta in this application were raised with the relevant union. In the 30 April correspondence, the respondent unions were requested to provide a response including their intention to accept the proposed meeting dates and time frames for the submission of logs of claims (as also sought in that correspondence) by close of business on Thursday 6 May 2010.

[107] As outlined above, on 4 May 2010, APESMA advised Alinta that it was seeking advice on the issues raised and would respond in due course. 10 On Thursday 6 May 2010, the respondent unions contacted Alinta by email through the SBU and advised that each of the respective unions had received the correspondence, that they required thorough consideration and that the employer would receive a response within a reasonable timeframe.11

[108] These applications were filed on Friday 7 May 2010.

[109] It is clear that the initial response of the respondent unions from the SBU (rather than the individual unions) and the absence of a detailed response on the issues within the timeframe set by the employer were considered to not be appropriate by Alinta. The issue is however whether the respondent unions were afforded a reasonable time to respond to the employer’s concerns. If not, then I must consider whether these applications should be determined having regard to the discretion provided by s.229(5) of the Act.

[110] Alinta contend that the timeframe for the response was reasonable given the circumstances of the matter, and in particular, the history of unsuccessful attempts to have the various issues resolved and the fact that one of its concerns (the use of the SBU as the vehicle to respond) was confirmed in the response received prior to lodging these applications.

[111] The respondent unions contend that the timeframe set by the employer was not reasonable given the nature of the issues raised and the short period to respond. They also argued that I should not exercise the discretion created by s.229(5) of the Act as this would encourage employers to make premature applications without following the process required for good reasons by the Act. In that regard, I was invited not to consider any of the subsequent conduct of the parties.

[112] Whether a reasonable timeframe has been provided is a matter of judgment in the particular circumstances of each case. The factors that bear upon the assessment in this case include that the substantive concerns were already in part raised with the unions by virtue of the earlier aborted s.240 proceedings and more importantly in earlier exchanges. Further, that these concerns included the use of the SBU as the means by which the unions might communicate (which was the means to be used by the unions as confirmed by the 6 May 2010 email). On the other hand, the issues as raised were significant and the timeframe for the formal response was relatively tight.

[113] I have some reservations as to whether this aspect of the requirements of s.229(4) of the Act were met at the point these applications were made. However I am satisfied that even if this is not the case, I should exercise my discretion pursuant to s.229(5) to determine each of these applications.

[114] In forming that view I accept that the concern of the respondent unions as to premature applications is a genuine one and that any discretion should not be exercised lightly. In this case, there are particular features that warrant such a course of action. These include those outlined above and that some of the concerns relied upon by Alinta remain notwithstanding the subsequent reply by the respondent unions on 10 May 2010, 12 and the further discussions that have taken place between the parties in an attempt to advance the matters prior to the hearing in this matter.

[115] Further, as will become clear, I find that some of the concerns of the employer also have substance and it is clear to me that further attempted negotiations without some guidance in the form of permissible orders from Fair Work Australia are likely to be problematic.

[116] It should be evident from the above that I have considered the conduct of the parties subsequent to the filing of these applications. I have done so, as the discretion provided by s.229(5) of the Act is not expressly fettered and as will become clear, s.230(3)(a) requires that I assess whether a party has not been or is not meeting the good faith bargaining requirements. This clearly contemplates that Fair Work Australia will consider, where appropriate, the circumstances applying at the time of the decision.

[117] In assessing this aspect of the matter, and indeed the entire approach to the applications, I have also been mindful of the statutory objectives of the relevant part of the Act in s.171 as follows:

“171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.”

[118] On the basis of my findings as above, these matters are properly before Fair Work Australia and need to be determined on their respective merits.

THE PREREQUISITES FOR THE MAKING OF BARGAINING ORDERS

[119] Section 230 of the Act provides as follows:

“230 When FWA may make a bargaining order

Bargaining orders

(1) FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

Agreement to bargain or certain instruments in operation

(2) FWA must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

(3) FWA must in all cases be satisfied:

(a) that:

(i) one or more of the relevant 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) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”

[120] It is clear that the employer has agreed to bargain in relation to all of the relevant matters. Given that there are proper applications before Fair Work Australia, I must consider whether the bargaining representatives have met the good faith bargaining requirements of the Act.

[121] The good faith bargaining obligations are defined as follows by s.228 of the Act:

“228 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;

(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.”

HAS ALINTA DEMONSTRATED THAT THE RESPONDENT UNIONS HAVE NOT MET THE GOOD FAITH BARGAINING REQUIREMENTS OF THE ACT?

[122] In determining this matter, I propose to follow the approach that I adopted in Australasian Meat Industry Employees Union v T & R (Murray Bridge) Pty Ltd 13as follows:

“[44] In my view, the requirements of s.228 must be applied in the particular circumstances of each case. Whilst general principles may emerge from other decisions of Fair Work Australia (FWA), the pursuit of simple, flexible and fair collective bargaining requires that the particular circumstances, dynamics and context of each application be weighed in applying the statutory requirements. Further, there is no general discretion for FWA to merely prescribe an alternative “fairer” bargaining process in the absence of a positive finding that the good faith bargaining obligations have not been met.”

[123] I have also had regard to the cautionary observations of the Full Bench in Construction, Forestry, Mining and Energy Union-Mining and Energy Division v Tahmoor Coal Pty Ltd 14 as follows:

“[24] Whether a party observes or fails to observe the good faith bargaining requirements set out in s.288(1) is to be determined in light of all of the relevant circumstances. While at one level this is stating the obvious, it is appropriate in view of the submissions in the appeal to indicate that the question will rarely be decided by reference to one action or series of actions. Equally it would be undesirable to read into the legislation concepts which do not already appear in it for the purpose of explaining its operation. That approach is likely to lead to error in the construction and application of the provisions.”

[124] I will in due course deal with each of the five alleged breaches of good faith bargaining in turn, recognising that not all allegations apply to each of the respondent unions or to each proposed agreement.

[125] Before doing so, it is necessary to deal with two of the common elements that underpin or influence many of these matters.

The focus of negotiations

[126] “Focus” in this context, means both the structure of the negotiations and the desired outcome of the process. In this case, both aspects are in dispute.

[127] I have already outlined in general terms the propositions advanced by the parties and I will not further canvass all of the detailed submissions touching upon this issue. I have however fully considered the same.

[128] Part of the dispute between the parties is related to whether the concept of enterprise bargaining as contemplated by the Act prioritises a whole of enterprise focus. Mr White on behalf of the respondent unions pointed towards the objects of the Act and its emphasis upon enterprise bargaining. Mr Bakewell for Alinta contended that the Act contemplated various forms of bargaining including to defined areas of a business.

[129] I note however that up until very recently, the respondent unions had not as such disputed the concept of having three site based agreements. Indeed, it was only in mid June that a claim for a single agreement was first made. Up until that time, the issue had been the structure of negotiations and the desire to have common negotiations for common issues and a rationalised meeting process that reflected the needs of all parties. In the case of the CEPU and AMWU, a claim for a separate trades agreement has however been a consistent position almost from the outset and remains in dispute. I understand that this is supported by the other respondent unions.

[130] It is the case that the Act encourages bargaining, particularly at the enterprise level. This is evident from s.3(f) and s.171 of the Act. Enterprise is defined in s.12 of the Act as meaning “a business, activity, project or undertaking.”

[131] Section 186(3) and (3A) of the Act, amongst other provisions, also contemplate that single enterprise agreements (as are being proposed here) may be made and approved applying to part of a business or undertaking on certain conditions as follows:

“Requirement that the group of employees covered by the agreement is fairly chosen

(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”

[132] Agreements in this business have been made previously on a geographical and/or undertaking basis and one or more of the considerations cited in s.186(3A) apply to each of the proposed agreements. On that basis, it is entirely legitimate for Alinta to propose agreements for each of its operational sites. The fact that it considers that insufficient attention was afforded to site specific issues during previous bargaining rounds, is also a legitimate consideration for its position.

[133] However, the Act does not in my view give to the employer, or for that matter, any party, the power to determine the scope of a final agreement; rather as the concept requires, it must (in the absence of a scope order as made by Fair Work Australia pursuant to s.238) also be the product of agreement with a group of employees.

[134] Although determined in the context of applications for protected action ballot orders, it is also now well established that the absence of an agreed focus for bargaining does not prevent a party genuinely trying to reach an agreement. 15 On that basis, I take the view that the issue of coverage of any proposed agreement is itself a legitimate matter for bargaining between the parties.

[135] Consistent with this approach, I note that the Act uses the concept of a “proposed agreement” in a number of different contexts and as would be consistent with the approach taken by the Full Bench in Total Marine Services, 16 and by a different Full Bench in LHMU v Coca-Cola Amatil (Aust) Pty Ltd 17it must be applied in an appropriate manner having regard to each particular context.

[136] I do however accept that certain bargaining obligations arise in the context of bargaining initiated by the issuing of a NERR by an employer, or some other indication of an agreement to bargain. Indeed, s.173(2) of the Act reinforces the importance of the NEER as part of the initiation of the bargaining process. For context, I set out the relevant provisions of s.173 as follows:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a Greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

... “

[137] The three instruments proposed by the employer are clearly proposed agreements for the purposes of the Act and the respondent unions are bargaining agents as a result of the operation of s.176(1)(b) 18 in relation to these proposals. This does mean that the respondent unions in this case have a duty to bargain in good faith in relation to each of the proposed agreements.

[138] However as alluded to earlier, I do not consider that this means that the scope of the NEER can itself determine the scope of the final agreement. In that context, the application of the requirements identified by s.228 of the Act must be applied in a practical sense having regard to the fact that the scope of an agreement is itself to be the subject of negotiations.

[139] I would accept that if a union or other employee bargaining representative was seeking that an agreement apply beyond the scope of any NERR issued by an employer, this would require either the agreement of the employer to so bargain or a majority support determination pursuant to s.237 of the Act. In this case, all of the parties are seeking to bargain within the scope established by the NERRs issued by Alinta, only the number and scope of the proposed instruments are now under debate.

[140] In that light, any consideration of the application of the obligations in s.228 of the Act in this case must take into account that good faith bargaining obligations do arise with respect to each of the proposed agreements but that the focus of the negotiations is itself a legitimate bargaining issue and the negotiating process that might reasonably be required in that context must also reflect that reality. Part of that reality is however that the concept of a single agreement (with the CEPU and AMWU consistently seeking a separate trades agreement), rather than a rationalised bargaining process, is a late development in this matter.

The role and rights of union workplace representatives (delegates)

[141] For convenience, I will refer to the relevant workplace representatives as delegates, meaning in this context that they are employees of the employer who are members of the union and who have been nominated to participate in the bargaining process by the relevant members of that union, but are not formal bargaining representatives as nominated under the Act in their own right.

[142] This aspect is relevant to both the alleged failings of the respondent unions and their attack on the bona fides of Alinta.

[143] I leave aside for the moment, the issues surrounding the 10 employee bargaining representatives who have formally been notified under the Act. These will be dealt with under the consideration of the alleged breaches of the good faith requirements to follow.

[144] Alinta contend that the good faith bargaining obligations attach (only) to a bargaining representative for a proposed enterprise agreement. As such, orders for breaches of good faith bargaining obligations attach to a bargaining representative in respect to his/her conduct for a proposed enterprise agreement.

[145] Further, the employer argues that a bargaining representative has statutory obligations under the Act. A bargaining representative can only be a person who is defined as a bargaining representative under the Act. The employer for a proposed agreement is a bargaining representative. In a practical sense the employer is represented by its managers or officers, who are authorised and appointed by the employer to act on the employer’s behalf. An employee organisation (union) is a bargaining representative and the employer contends that the Act clearly distinguishes between the entity that is the union and an employee who is a member of that union.

[146] This distinguishing feature is said to be further enhanced in the case of an employee of the employer who wishes to be a bargaining representative. That person must be appointed in writing by another employee or appoint themselves in writing. There is no other way that an employee of the employer can be a bargaining representative under the Act. In this respect, Alinta contend that s.176(1) of the Act is a code establishing the parameters of the appointment of bargaining representatives for present purposes.

[147] The respondent unions contend that no distinction should be made between the union and its members. In that light, delegates have rights to attend bargaining meetings as part of the union acting in that capacity and it was also argued that such an approach was consistent with the objects and scheme of the Act.

[148] The respondent unions recognised that the role of the delegates in this context is different to that of an official but argued that the workplace delegates play a part in the representation of the employees who form the union as the bargaining agent.

[149] As can be seen, this issue has largely been argued on the basis of rights for the delegates within the bargaining process. I will of course deal with this aspect, however for reasons that will become clear, I consider that this aspect also needs to be considered through the prism of the obligations that arise for the bargaining representatives in relation to the delegates.

[150] All but one of the express duties within s.228 of the Act apply to, and is in relation to, bargaining representatives. The exception being s.228(1)(e) and I will return to this aspect shortly.

[151] I have not been assisted in dealing with this aspect of the case by a lack of evidence concerning the actual circumstances of the delegates who have sought to attend the bargaining meetings. On that basis, I have dealt with this aspect based upon the evidence that has been put before Fair Work Australia by Alinta and having regard to the various circumstances that might normally apply to delegates.

[152] There is no doubt that pursuant to s.176(1)(b), and allowing for the revocation of the implied representation as contemplated in s.176(1)(b)(ii) of the Act, the union(s) concerned becomes a bargaining representative provided that it has members amongst the group of employees who would be covered by the proposed agreement. There should also be little doubt that the union is itself a legal entity 19 and subject to its rules, must be represented by individuals that are authorised to do so.20 In addition, a union is made up of its members and the involvement of site delegates as part of the process of negotiations is, in my experience, itself part of the normal bargaining process.

[153] Where a delegate is given a role under the rules of the union to represent the union and is authorised as necessary to do so in relation to a proposed agreement, in my view they might well have rights and obligations but in that case they do so as part of and on behalf of the union which remains the bargaining representative under the Act. Where a delegate is not authorised under the rules but rather by informal nomination from the members short of nomination as a bargaining representative under the Act, they are clearly not bargaining representatives and have no individual rights or obligations in that particular context.

[154] However, even if the delegates are not bargaining representatives in their own right, it would in most cases be unfair and capricious not to recognise the role of the delegates to participate within the bargaining process where sought by a bargaining representative. This is so as the delegates bring an important workplace perspective that often assists in the progress of negotiations and recognises that it is the group of employees that are being represented. Indeed, a fundamental element of freedom of association is to ensure that associations (in this case the unions) are able to organise and represent themselves independently of the employer. 21 This does not mean that there is an automatic right for every delegate to attend meetings and as employees, permission to leave the workplace and/or their assigned work is required. However, provided that the attendance of one or more delegates is reasonable and can be accommodated without undue compromise to the operational requirements of the business, a refusal to allow them to attend could in my view itself represent a breach of s.228(1)(e) of the Act.

[155] What is reasonable in that context will depend upon all of the circumstances in a particular matter including the number of employees involved in the work group, the number of delegates who may seek to attend, the number of meetings, the scope and nature of issues to be canvassed and the operational needs of the business. In that context, the scheduling of meetings to facilitate attendance, or allowing participation through video facilities, is also a relevant consideration.

[156] In this case, there has been for some time a dispute as to the number of delegates that could attend and ultimately a dispute as to the “principle” of Alinta apparently reserving for itself the right to control the number of delegates attending the meetings. As outlined earlier, in the immediate lead up to the hearing, Alinta agreed to allow all delegates, who were originally nominated, to attend a series of co-ordinated bargaining meetings. 22

[157] Further, Alinta has facilitated the unions having access to all of their site delegates for one hour before and one hour after bargaining meetings and has permitted additional site delegates to attend where that site delegate has special knowledge of a topic being bargained.

[158] In respect to all proposed agreements, Alinta has appropriately facilitated delegates (who I assume had authority from the relevant unions to do so) attending as a proxy for an absent union official and this has occurred on more than one occasion.

[159] The respondent unions sought to characterise the employer’s desire to control certain matters as being an inappropriate attempt to manipulate and control the outcomes. It is clear from the balance of the evidence that the desire to control went to issues of the overall numbers attending bargaining meetings and the capacity for site specific issues to be genuinely considered, rather than control of the outcomes.

[160] The fact that there was a dispute about this aspect is relevant to the assessment of the reasonable conduct of the bargaining representatives at the time. This is particularly important in assessing the conduct of the respondent unions at various times. However, I do not consider on the basis of my findings as above and the evidence that is before me, that Alinta has itself failed to bargain in good faith in relation to this aspect. In this respect, the almost total absence of evidence as to the circumstances of the delegates is a factor.

[161] I turn now to the alleged breaches of good faith bargaining by the respondent unions as contended by Alinta. I do so having regard to my obligation to consider the whole circumstances of the matter.

Disclosing relevant information in a timely manner

[162] These particular alleged breaches are directed only at the ASU and APESMA but apply in relation to each of the three agreements as proposed by Alinta. I note however that APESMA is not a bargaining representative in relation to the Augusta agreement 23 and I am not considering the allegations in that particular context.

[163] In essence, Alinta allege that the ASU and APESMA have breached the requirements of s.228(1)(b) of the Act by failing to provide relevant information to another bargaining representative in a timely manner. More particularly, the employer alleges that both unions have failed to provide a log of claims in relation to the relevant proposed agreements despite having made a request for such in November 2009.

[164] The respondent unions have argued in essence that the provision of logs of claims and other information on bargaining positions should be provided at properly constituted bargaining meetings where workplace delegates are recognised. I understand this proposition to mean that until the parties had agreed the basis of the negotiating meetings and the role of the delegates was recognised it was not necessary or appropriate to provide an outline of its claims.

[165] It is not in contention that Alinta as a bargaining representative sought the provision of logs of claims and that as such have not, in the case of the ASU and APESMA, been provided. However, in order to demonstrate non-compliance with s.228(1)(b) of the Act, Alinta must satisfy Fair Work Australia that the logs of claims are relevant information and that the information should have been provided prior to this time as part of bargaining in good faith.

[166] A log of claims in the sense as meant here is an outline of the bargaining outcomes as sought by the relevant party. A log may also be used by parties to state views about the intended focus of negotiations. There is no express obligation under the Act for parties to state bargaining positions, however such is a necessary and important part of the bargaining process.

[167] Given all of the circumstances operating here, the absence of a clear position from the ASU and APESMA as to the issues sought to be pursued is a significant matter. Although there was a dispute about the bargaining process and the rights of the delegates, the employer and indeed all parties at various times have sought to progress the bargaining process to some degree and were obliged to do so. I observe that it would have been open to the ASU and APESMA to provide a common log applicable to all proposed agreements if it sought to do so without compromising their position as to the focus of negotiations or the other issues in dispute.

[168] There was ample opportunity to provide the information and various requests were made during the last six months. Indeed, paid members’ meetings for each of the unions in late 2009 and early 2010 were facilitated by the employer to enable the claims to be established. It is the case that during those bargaining meetings that were conducted in relation to the proposed Leigh Creek agreement, the ASU agreed with the main claims that had been advanced by the CEPU and the AMWU through their logs of claims. However, this does not substitute for a formal indication of its issues and proposals as legitimately sought by Alinta and this is an important element of the bargaining process.

[169] Accordingly, I am satisfied that the ASU and APESMA have, in relation to the relevant proposed agreements, failed to meet the good faith bargaining requirements as established by s.228(1)(b) of the Act.

Attending and participating in meetings at reasonable times

[170] Alinta allege that each of the respondent unions have breached s.228(1)(a) of the Act by not attending and participating in bargaining meetings at reasonable times.

[171] Alinta contend that meeting schedules were proposed by it in late 2009 and early 2010 and these contemplated a series of separate meetings regarding each proposed agreement and that each of the unions have to varying degrees failed or refused to attend meetings at reasonable times in order to advance the negotiations.

[172] The respondent unions contend that they have not as such refused to attend meetings and have confirmed a willingness to attend properly constituted bargaining meetings. The approach taken by the employer was said to involve numerous meetings at various worksites spread over long distances. Further, the requirement that there be separate meetings in effect required the unions to accept the site specific focus being pursued by the employer.

[173] In relation to s.228(1) of the Act, the respondent unions argue that whilst the Act does require the good faith bargaining parties to attend meetings, it does not mean that parties need to attend meetings under any circumstances. The obligation exists in relation to meetings that have been reasonably arranged having regard to the circumstances of the parties and the negotiations. It is not sufficient for Alinta as the applicant in this case to simply contend that the unions have not attended the meetings it has scheduled and claim such to be a failure to meet the good faith bargaining requirements.

[174] There are somewhat different factual circumstances applying in relation to the various findings and orders sought by the employer. All of these circumstances are also directly influenced by the issues surrounding the focus of negotiations and the rights of the delegates as discussed above.

[175] In light of the above, it is necessary to consider the factual circumstances evident with each agreement, having regard to the approach that I have adopted to the two general issues outlined earlier.

[176] In relation to the proposed Augusta agreement, a meeting was attended on 10 February 2010 by all relevant parties, however in light of dispute about the number of delegates who could attend, negotiations did not substantially proceed. The scheduled meeting on 23 February 2010 was abandoned when only the Alinta representatives attended.

[177] On 10 March 2010, a bargaining meeting was held but again did not proceed to deal with any substance due to a disagreement as to the number of delegates who should be permitted to attend. In the lead up to that meeting, the AMWU and CEPU confirmed their position with respect to the number of delegates, the desire to retain a separate trades agreement and their substantive bargaining claims.

[178] On 23 March 2010, only the CFMEU and the Alinta representatives attended the scheduled bargaining meeting called in relation to the proposed Augusta agreement.

[179] In relation to the proposed Leigh Creek agreement, there have been more substantive bargaining meetings as a consequence of attendance of the major unions on site, being the TWU and the CFMEU.

[180] Meetings were conducted on 9 February, 24 February, 8 March, and 24 March 2010. The meeting scheduled for 8 April 2010 was abandoned when no union bargaining representatives attended. It is clear that the effective withdrawal of the respondent unions from the process was linked to the same issues as pertaining to the proposed Augusta agreement.

[181] Negotiations in relation to the proposed Leigh Creek agreement had however progressed to that point, albeit without a log of claims from either the ASU or APESMA or agreement with those bargaining representatives that had attended, and on 8 April 2010, Alinta issued a comprehensive draft agreement for the consideration of bargaining representatives.

[182] In relation to the proposed head office agreement, a proposed schedule of meetings and general updates has been provided by Alinta to the respondent unions and to the employees who would be covered.

[183] An initial meeting was held on 26 February 2010 and the ASU and APESMA attended or were represented. There was an initial discussion about the employer’s proposals and a subsequent date of 26 March 2010 was set for the next meeting. Both the ASU and APESMA indicated that they were not committing to attend that meeting.

[184] In the lead up to that date, the ASU and APESMA confirmed that they would be in a position to meet in relation to the proposed head office agreement, only when the bargaining process issues had been resolved. I understand that the 26 March meeting was abandoned.

[185] APESMA and the ASU sought to conduct a paid meeting of members in relation to the proposed head office agreement on 18 May 2010 and there is no evidence before Fair Work Australia as to whether that request was granted and if so, what outcomes emerged.

[186] The obligation in s.228(1)(a) applies in relation to meeting at reasonable times. This concept implies that reasonable is to be assessed in the circumstances applying at the relevant time. What is clear is that a refusal to meet at all, or only to meet on certain conditions that might themselves be subject to negotiation and discussion, will run a high risk of a finding that the requirement is not being met.

[187] The schedule of meetings originally proposed by the employer was very comprehensive and would have involved the various officials and company officers attending regular meetings at various locations relatively remote from each other.

[188] In the early stages, there was a significant lack of response from the ASU and some of the other respondent unions to the meeting schedules. It was not necessary for the unions to agree with the schedule or with the concept of three agreements but the initial lack of response was itself inappropriate and unhelpful. However, by early February 2010, the dispute about the proposed bargaining process was clearly established. The dispute about the role of the delegates was also clearly impacting upon the conduct of the parties and as alluded to earlier, this was an important matter of principle for the respondent unions.

[189] There have however been some occasions where the unions have simply not attended meetings without prior notice and this also raises significant issues in terms of s.228(1)(a) of the Act.

[190] Prior to the time that the respondent unions raised the proposal that the meetings should be conducted on a different basis, so as to permit the common issues to be dealt with together, I consider that some elements of their conduct were not consistent with the relevant good faith bargaining requirement.

[191] It is also the case that following the union’s proposal, Alinta was at that time tardy in recognising and responding to that suggestion. This is also a factor in assessing the conduct of the respondent unions.

[192] However, at the time of the hearing of this matter the parties had generally agreed, albeit reluctantly, to meeting dates, however the precise arrangements for those meetings remain in dispute.

[193] Section 230(3)(a)(i) of the Act requires that Fair Work Australia be satisfied that one or more of the bargaining representatives have not met or are not meeting, the good faith bargaining requirements.

[194] Save for the issue of the short period of notice provided to the respondent unions of the 15 June 2010 bargaining meetings, I consider that the failure of the respondent unions to participate in the process at that point would be a failure to conduct themselves as required by s.228(1)(a) of the Act. That is, the accommodations as proposed by Alinta were such that the proposed meeting arrangements were reasonable in my view. They effectively neutralised the issues surrounding the delegates and allowed bargaining in relation to each of the proposed agreements without committing to a process that precluded a single agreement (or other combination). The common meeting dates for each of the proposed agreements also reduced the travel and administrative burden on the representatives.

[195] However, the lead time for that meeting was short and the incidence of the public holiday in that period is a relevant consideration. Further, the unions had already at that time proposed the alternative and later date of 22 June for further discussions.

[196] The effective refusal by the respondent unions to attend the 22 June 2010 meeting was however unreasonable in the circumstances. Although the impending hearing in these matters was a relevant consideration, it was the employer that carried much of the potential prejudice if the meetings took place as then proposed. In any event, the date was clearly available and the proposals as then made by the employer (with the various concessions then evident) were themselves reasonable for reasons outlined above.

[197] In that light, I find that the respondent unions have not met the good faith bargaining requirements of s.228(1)(a) of the Act in certain respects.

Responding to proposals made by other bargaining representatives; giving genuine consideration to a bargaining representatives proposals and giving reasons for the response to the proposals

[198] Alinta contend that the Act in s.228(1)(c) recognises that, should a bargaining representative (in this case itself) put a proposal to another bargaining representative (the respondent unions), the unions should not only respond to that proposal in a timely manner, but that they must give genuine consideration to that proposal and give reasons for that response.

[199] The employer contends that in respect to the proposed Leigh Creek agreement, a proposal has been put to bargaining representatives including the AMWU, the CEPU, APESMA and the ASU.

[200] By the end of March 2010, the employer had received logs of claims from the CFMEU, the TWU, the AMWU and the CEPU. These had been received progressively over the course of meetings held on 9 February, 24 February, 9 March and 24 March 2010.

[201] During the course of these meetings Alinta had outlined the issues that it wanted resolved and proposed that it would table a draft enterprise agreement for the unions’ consideration at a bargaining meeting scheduled for 8 April 2010.

[202] No union attended the scheduled bargaining meeting on 8 April 2010 and having already prepared a draft agreement, a draft offer was sent to the respective unions for their consideration and feedback.

[203] It is also the case that on or about 21 April 2010 Alinta received a letter from the SBU asserting that the Leigh Creek agreement as proposed by the employer was “sub standard”. Alinta contend that the letter did not provide a reason why the proposed agreement was “sub standard” and that since that time no justification for that position or any alternatives have been provided despite various requests and opportunities to do so.

[204] Alinta further contend that the ongoing failure to provide reasons to properly respond to its proposed agreement demonstrates a failure to genuinely consider the proposal and/or an ongoing and persistent failure to provide reasons for the response to that proposal. These failures or refusals were said to be breaches of the respective unions’ good faith obligations as established by the Act.

[205] The respondent unions reject any notion that they have not met their good faith bargaining obligations in this respect. I understand their position to be that the dispute about the focus of bargaining, the proposed meeting arrangements and the rights of the delegates were such that the response as given to date should be considered to have been appropriate and sufficient.

[206] Section 228(1)(c) of the Act requires a bargaining representative to respond to proposals made by other bargaining representatives for the agreement in a timely manner. Section 228(1)(d) requires a bargaining representative to give genuine consideration to the proposals of other bargaining representatives for the agreement, and give reasons for the bargaining representative’s responses to those proposals.

[207] There is no doubt that the draft Leigh Creek agreement is a proposal made by a bargaining representative as contemplated by s.228(1) of the Act. Accordingly, this required the respondent unions to give genuine consideration to the proposal, respond and give reasons for that response.

[208] The respondent unions have responded to the proposal through the SBU on 21 April 2010 (I will consider the issues associated with the SBU shortly) and I take such to be a response for present purposes. That response itself was timely and involved the rejection of the proposal.

[209] This leaves the questions as to whether the respondent unions gave genuine consideration to the proposals and whether reasons should have been provided.

[210] The lack of any evidence from the respondent unions leaves these questions to be resolved based upon the evidence and submissions that are before Fair Work Australia. The factual aspects as outlined above have been demonstrated but such does not go the extent and nature of the unions’ consideration of the Leigh Creek proposal. The absence of any justification for its rejection, of itself, raises a question as to whether it was genuinely considered.

[211] The CEPU and the AMWU have consistently sought that a separate trades agreement apply to both the Leigh Creek and Augusta sites and the fact that the employer’s proposal did not accord with that approach could at least be inferred as being part of the reasons for its rejection.

[212] However, the duty to consider proposals and to provide reasons for any response are important obligations and it should not be necessary for a party to assume or imply the position of the other. The background disputes are also relevant, but do not remove the requirement that the respondent unions consider and respond to proposals in such a way as to permit informed bargaining to continue.

[213] In this case, I am satisfied that the absence of the provision of reasons for the rejection of the Leigh Creek agreement as proposed by Alinta represents a failure to meet the good faith bargaining requirements of s.228(1)(d) of the Act.

[214] In reaching this finding, I have noted that Alinta did not respond to certain issues concerning the role of EMA and the authorities for certain matters in dispute as raised in the correspondence from the SBU on 10 May 2010. The respondent unions have not alleged a failure to bargain in good faith in that context but raised it as part of the broader case. Arguably a response should have been provided, however based upon the evidence before me, I do not consider that the role of EMA as a potential bargaining representative was ever in serious contention. Further, the precise legal justification of the various positions have been unclear to date, however the conceptual basis of the various propositions being advanced by the parties have been clearly stated in earlier exchanges.

Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining

[215] This allegation by Alinta concerns the 14 (now 10) employee bargaining representatives at the Augusta site who have formally nominated themselves in that capacity under the Act. More particularly, it is alleged that the ASU has acted in a capricious and unfair manner in relation to these representatives.

[216] Alinta contends that the Act in s.176(1)(b) makes it clear that where an employee appoints another employee in writing or appoints themselves in writing, the union to which they are a member, no longer represents that employee. In this respect, the purpose of the Act was said to be to ensure that representational rights for each employee are unambiguous and that accountability for the bargaining rights and responsibilities of the representative are unambiguous and transparent.

[217] Where an employee appoints an employee as a bargaining representative in writing, the employer (and indeed all other bargaining representatives) is obliged to recognise and bargain with that bargaining representative.

[218] On the basis of these obligations, Alinta contend that it is entitled to take issue with any action that suggests the appointment of a bargaining representative by another employee is a sham or a device that does not promote the process of collective bargaining.

[219] Alinta also contend that up until the point of their nomination the ASU had represented all of the employees and that the nominations only occurred after the dispute as to the role of delegates became evident in early February 2010.

[220] On or about 4 February 2010 the ASU advised Alinta that it did not agree with the employer’s proposition that not all ASU site delegates should be able to attend bargaining meetings, and indicated that site delegates could nominate as bargaining representatives and attend (in their own right) if they so choose. 24

[221] Further correspondence between the employer and the ASU ensued on this point during February 2010.

[222] It is the case that subsequent to these matters being disputed, on 17 February 2010, up to 14 employees, who Alinta assert are ASU members to be covered by the proposed Augusta agreement, were nominated in writing as bargaining representatives. I will return to this assertion shortly. The evidence does confirm that the employee bargaining representatives included some ASU site delegates.

[223] I note that the employer corresponded with each of the employees so nominated and formally requested their attendance at the subsequent bargaining meetings in relation to the Augusta agreement and that no employee so nominated attended any of the relevant meetings on and from 17 February 2010.

[224] As outlined earlier, four of the nominated ASU members withdrew their nominations as bargaining representatives, and 10 remain current.

[225] On 30 April, Alinta sent a letter of concern to the ASU regarding the nomination of the ASU members as bargaining representatives, seeking the ASU both clarify its position on this issue and to take steps to “advise its members as to the consequences and meaning of the ASU members being bargaining representatives”. The ASU has not done so and reject any notion that it should.

[226] Alinta has suggested that in the circumstances it is reasonable for it to conclude that the ASU either instructed or encouraged its members to nominate themselves or another ASU member as a bargaining representative. Further, it is asserted that the ASU has done so with an intention to continue representing the industrial interests of all ASU members, despite the employer and the other bargaining representatives having to formally recognise and bargain with those employees.

[227] The employer contends that such action is unfair conduct that undermines the process of collective bargaining. It argues that it and other bargaining representatives are entitled to deal with persons who are genuinely appointed under the Act, and should not have to contend with persons appointed purely with tactical or mischievous intent.

[228] The ASU contend that there is no or little evidence to support the contentions of the employer on this matter. In any event, it argues that there has been no basis demonstrated by Alinta for a finding that the union has acted inappropriately or to support the nature of orders as sought by the employer.

[229] Indeed, as alluded to earlier, the ASU contend that Alinta has failed to recognise the employee bargaining representatives itself as required by s.228(1)(f) of the Act.

[230] Given the sequence of events and the evidence before Fair Work Australia, it is a reasonable inference that the ASU has played a role in the nomination of the employee bargaining representatives. It is the case that Alinta has not demonstrated precisely what that role was and whether all of the employee bargaining representatives are members of the ASU. However, it was hardly in a position to do so and the only party that could have led evidence to contradict the allegations, was the ASU.

[231] If the facts surrounding this issue became critical, this would be a circumstance where Fair Work Australia might take the view that the failure of the ASU to lead evidence was because such would not have assisted its case. 25 However, even if I were to assume that the ASU had encouraged the employee bargaining representatives to nominate themselves, I would be very reluctant to find that a party encouraging others to exercise apparent rights under the Act would be in breach of the good faith bargaining requirements. Further, this occurred when there was a real dispute as to the rights and roles of delegates and before what might be a sensible accommodation on the issue was proposed by the employer.

[232] Further, any grounds in relation to the employee bargaining representatives would be better directed to them and as they are not a respondent in these proceedings and have not therefore been given the real opportunity to present evidence in that capacity, I am also reluctant to make findings as to their circumstances and motivation.

[233] I note that the proposed order, which is directed at the ASU advising the employee bargaining representatives of their obligations under the Act, is also a rather indirect approach and is in any event not required as the employer has already written to these representatives broadly in the same general terms.

[234] I would not however rule out the prospect that the alleged conduct could in an extreme case lead to a finding that a party had not met the requirements of s.228(1)(e) of the Act. The Act also contemplates that circumstances might arise whereby the sheer number of bargaining representatives makes the process problematic. If that were the case, an order as contemplated by s.231(2)(a) to rationalise the number of representatives might well be appropriate. This has not been sought in this matter.

[235] In all of the circumstances of this case, I am not persuaded that I should find that the ASU has not met the requirements of s.228(1)(e) of the Act in relation to the employee bargaining representatives.

Representing a bargaining representative’s position through a Single Bargaining Unit

[236] Alinta contend that each of the bargaining representatives have breached s.228(1)(e) of the Act by virtue of their utilisation of the SBU. That proposition is advanced on the following basis: 26

The Act does not permit a bargaining representative’s role, rights and responsibilities to be assigned to a third party or to another bargaining representative.

The only situation under which a bargaining representative can be relieved of its obligations are when an employee revokes a bargaining representatives standing or where FWA makes an order regarding the nature and number of bargaining representatives involved.

Logically, this is the case as orders for a breach of good faith bargaining must be able to identify with certainty the bargaining representative responsible and the nature of the conduct or action that the bargaining representative is responsible for.

Until 21 April 2010, Alinta had corresponded, communicated and where possible bargained with the respective unions in their capacity as bargaining representatives of employees.

On 21 April 2010, Alinta received correspondence from Mr Blowes of the ASU on behalf of the SBU. The letter was to advise the employer that the SBU considered the proposed Leigh Creek agreement to be “sub-standard.”

To the extent that the SBU letter was intended to be a response to the employer’s proposal as contained in the proposed Leigh Creek agreement, the letter might be assumed to be an attempt to comply with the Act.

Further, based on this development, it was reasonable for Alinta to assume that the AMWU, CEPU, ASU and APESMA had chosen to represent themselves this way in respect to the conduct of negotiations going forward. From November 2009, the employer had no forewarning of this or individual advice from the union’s concerned.

To the extent that the employer had any doubt about its assumptions of the role of the SBU, that matter was clarified on 10 May 2010 when the SBU responded to the Applicant’s letters of concern dated 30 April 2010.

The SBU has no standing under the Act as a bargaining representative. The employer cannot fulfil its good faith bargaining obligations to the SBU and the SBU has no responsibility to bargain in good faith with the Alinta.

Alinta is entitled to deal with bargaining representatives as defined in the Act. Each union that is a bargaining representative must take responsibility for its role as a bargaining representative. Having regard to the construction of the Act and the definition of good faith bargaining, the intention and persistence of the SBU to bargain with the employer in its capacity as an SBU since 21 April 2010 is unfair conduct that undermines the process of collective bargaining.

Having regard to the above, the persistence of most unions to not respond to the employer or deal with Alinta in its own right since 21 April 2010 is unfair conduct that undermines the process of collective bargaining.

[237] Alinta also argued that as not all of the members of the SBU were bargaining representatives for each of its proposed agreements, additional problems emerged from the approach adopted by the respondent unions.

[238] The respondent unions rejected the basis of this part of the application in the following terms: 27

The proposed orders in respect of the SBU are based upon a case where the employer has constructed a “straw man.”

The respondent unions have never claimed that the SBU has the status of a bargaining representative under the Act for enterprise agreement negotiations.

The co-ordination and presentation of common respective union membership positions through the SBU contributes to and enhances collective bargaining.

Alinta is seeking to undermine collective bargaining with the application for this order.

The employer, in all of its antecedent forms, has recognised and dealt with the SBU for at least 15 years in relation to enterprise agreement and other industrial matters.

Alinta is well aware of the longstanding and well-established practice of at least 15 years that the SBU represents collective positions of the constituent unions while where individual respective unions have a union-specific matter they put that as from an individual union.

The SBU was established under the auspices of the SA Trades and Labour Council (now SA Unions).

The SBU has long played a valuable role in co-ordinating the logistics of dealing with industrial matters, for example, co-ordinating meeting times and defining issues.

Alinta seeks an order that the unions “make a commitment to respond to all further negotiating matters in their own capacity as bargaining representatives”. The term “all further negotiating matters” should be seen as an attempt by the employer to abolish a legitimate and longstanding mechanism for collective bargaining.

The application for this order was described as being frivolous, vexatious and mischievous.

This was said to also be a groundbreaking proposition which is in the nature of a test case.

The issuing of an order of this nature would have significant industrial implications across a large number of industries where single bargaining units of unions are common.

No union has sought, nor intends to seek, to replace their own representation at enterprise bargaining negotiations with the SBU.

By making this application the company is seeking to make Fair Work Australia complicit in its strategy of undermining collective bargaining.

It was submitted that Fair Work Australia should exercise extreme caution in considering this element of the application.

[239] The respondent unions have also argued that any attempt to dictate how they are to organise themselves would itself undermine the freedom of association and collective bargaining principles enshrined in the Act.

[240] It is clear on both approaches that the SBU is not a bargaining representative under the Act. It is an informal association of electricity industry unions that has historically played a role in coordinating the views of the unions for the purposes of collective bargaining and other common interest matters.

[241] Indeed, in years gone by, the establishment of single bargaining units of the kind seen here was an integral part of the collective bargaining process. However, this matter takes place under the terms of the Act and its introduction of nominated bargaining representatives and good faith bargaining requirements as placed squarely upon these representatives.

[242] To the extent that a bargaining representative sought to in fact abdicate its responsibilities and interpose an alternate body, this would raise major issues in terms of their conduct. However, as with each of the above matters, it is particularly important in this area to assess the practical conduct of the parties.

[243] At least as used to date in this matter, the SBU has only been a forum for the communication of some of the positions taken by its “affiliated” unions. The identity of the unions involved is known with certainty by Alinta and each are bargaining representatives for the group of employees for whom bargaining is underway with the employer. The focus of bargaining has also been at issue between the parties and in relation to those matters canvassed by the SBU correspondence to date, these have concerned each of the affiliates as bargaining representatives with Alinta.

[244] The SBU has not purported to make decisions on behalf of the unions and communication with Alinta has taken place from some of the individual unions in conjunction with the SBU correspondence to confirm their position.

[245] The Act has not sought to establish particular forums for negotiations or to prescribe how the negotiation process is to be conducted. Rather, it has established general good faith bargaining obligations and required the parties, and Fair Work Australia where relevant applications are made, to apply those concepts having regard to the other provisions of the Act, including its objects, and to the particular circumstances of each case.

[246] Provided that the position of the bargaining representative can be reasonably taken to have been that as communicated by the SBU, the issues arising from its use are in my view not significant. I do however accept that the SBU cannot be used to circumvent the negotiation process for each agreement and Alinta’s good faith bargaining obligations do not extend to the SBU, only to the respondent unions and other bargaining representatives under the Act.

[247] To some extent, the suggestion that I should in effect prevent any use of the SBU, raises issues that also exist in circumstances where bargaining takes place in the context of a negotiating forum that involves both bargaining representatives and other representatives who do not formally hold that role under the Act. Indeed, this was one of the issues dealt with in the matter of Australasian Meat Industry Employees Union v T & R (Murray Bridge) Pty Ltd 28 as cited by the respondent unions and referred to earlier in this decision.

[248] I am not satisfied that the decision to use the SBU to communicate positions is by itself an approach that is capricious or unfair conduct that undermines freedom of association or collective bargaining. The limited use of the SBU as made to date, combined with the direct communication from the relevant unions on critical matters, is not unfair or capricious. There are however some dangers for the unions as bargaining representatives given that any communications or actions that are taken in their name, might be attributable to them and may impact upon their obligations under the Act. Further and more importantly, as alluded to above, where the SBU purported to take on the role of a bargaining representative or did anything other than communicate the views of the bargaining representatives, this would be problematic and could become unfair to the employer.

[249] To the extent that some separate negotiations are being, and will be, undertaken for each proposed agreement where not all of the affiliates of the SBU are involved, the use of the SBU to communicate views on behalf of all unions in that particular context could also be problematic under the good faith bargaining requirements of the Act.

[250] For the moment however, I am not persuaded that the limited manner of use as made of the SBU by the respondent unions in these matters represents a failure to meet the requirements of s.228(1)(e) in that regard.

THE BARGAINING ORDERS

[251] Having found that the respondent unions have not met or are not meeting the good faith bargaining requirements of the Act in certain respects as outlined above, I must consider whether I should in all of the circumstances make an order as contemplated by s.230(1) of the Act.

[252] The purpose of a bargaining order is established in part by the provisions of s.231 of the Act as follows:

“231 What a bargaining order must specify

(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

(d) such matters, actions or requirements as FWA considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

(2) The kinds of bargaining orders that FWA may make in relation to a proposed enterprise agreement include the following:

(a) an order excluding a bargaining representative for the agreement from bargaining;

(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

(3) The regulations may:

(a) specify the factors FWA may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

(b) provide for FWA to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind. 29“

[253] Given that the making of such orders by FWA is contemplated by s.171 of the Act as a means by which the other objects are to be met, the making of an order should in my view be positively considered in consequence of a positive finding pursuant to s.230(3). However, the Act makes it clear that these orders are to be issued only where it would be reasonable to do so in the circumstances (s.230(1)(c)).

[254] In this case I consider that it is reasonable to make orders in light of my earlier findings. In particular, the making of orders so as to actually facilitate bargaining in these matters is appropriate and consistent with the statutory charter of Fair Work Australia. Those orders will however reflect the circumstances now evident and the context in which the earlier findings have been made.

[255] As a result, I have determined to make orders dealing with the three elements of the good faith bargaining requirements that I have found have not been met. The orders will apply only to the relevant unions in each case and will reflect the general approach that I have earlier outlined in relation to the major negotiation process issues that have to this point divided the parties.

[256] Without detracting from the details of the earlier findings or the orders as issued, the ASU and APESMA will be ordered to specify their claims in relation to each of the proposed agreements in which they are a bargaining representative. I note that those claims, may if they so choose, also confirm a position as to the scope of the proposed agreement(s) and the extent and nature of common claims to apply to all relevant proposed agreements.

[257] All of the respondent unions will be ordered to provide reasons to Alinta for their rejection of the proposed Leigh Creek agreement.

[258] All of the respondent unions will be obliged to attend meetings as reasonably arranged by Alinta to discuss each of the proposed agreements. In order to be considered as reasonable for present purposes the following will need to apply:

The meeting times and locations will need to have been discussed beforehand with the respondent unions and other bargaining representatives

The meetings must be scheduled with reasonable notice to facilitate the attendance of officials from the relevant respondent unions and other bargaining representatives and allow each of the proposed agreements involving the parties to be considered as part of a coordinated series of meetings on the same day(s) (unless agreed to the contrary)

Arrangements must allow issues concerning the scope and number of agreements and common elements of claims made by the parties to be discussed through a combined forum, as well as site and group (trades) specific issues to be isolated and discussed with the relevant representatives, and

Delegates as are reasonable in the circumstances are permitted to attend or participate in the relevant meetings as part of the process.

[259] I do not intend to specify in the orders the location or number of meetings, or the precise number of delegates, as the obligations require reasonable conduct that will have to be assessed on an ongoing basis. I have however indicated in this decision what I consider the approach should be in order to recognise the good faith bargaining requirements and to promote simple, flexible and fair bargaining as sought by the Act.

[260] I envisage that at least initially, there will be a meeting of all bargaining representatives (including the employer) to discuss the scope and number of agreements and the common issues that are raised by any of the parties. This would be followed on the same day, with meetings to discuss site specific matters that would involve only the relevant bargaining representatives in each case. These negotiations should be arranged to commence shortly after the supply of the “logs of claims” by the ASU and APESMA (and the response to the proposed Leigh Creek agreement) as required in the orders to be issued.

[261] Depending upon progress and the positions adopted by the parties, subsequent meetings could involve the same format with the potential for separate meetings as appropriate to advance consideration of the site-based issues and the claims by the AMWU and CEPU for a separate trades agreement.

[262] Liberty to apply is granted to all parties to seek modifications of these orders should subsequent developments necessitate that action. However, given the import of s.232 of the Act, any such approach would need to seek either supplementary orders or the revocation of the present orders and their replacement with modified requirements. As a result, a fresh application to Fair Work Australia would be appropriate.

[263] If the parties are subsequently unable to progress the negotiations substantially as a result of a continuing dispute about the focus of negotiations, a bargaining representative may make application to Fair Work Australia to determine the scope of the agreement(s) pursuant to s.238 of the Act.

[264] An application(s) could also be brought under s.240 of the Act to seek the assistance of Fair Work Australia to deal with a dispute about the agreement(s). In my view, this provision is capable of applying to disputes beyond the actual terms of a particular proposed agreement and may canvass a dispute about the focus of negotiations relating to any proposed agreements.

[265] The bargaining orders in this matter have been issued in conjunction with this decision (PR999741 (B2010/50)), (PR999743 (B2010/51)), (PR999763 (B2010/52)), (PR999764 (B2010/53)) and (PR999765 (B2010/54)).

COMMISSIONER

Appearances:

S Bakewell (with permission) with L Bahr and J Jones for Flinders Operating Services Pty Ltd T/as Alinta Energy.

A White with M Blowes, E Grey and L Good for the Australian Municipal, Administrative, Clerical and Services Union.

D Thomas for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

D Winter with P Bauer for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU).

G Day for the Construction, Forestry, Mining and Energy Union.

K Sopeer for the Association of Professional Engineers, Scientists and Managers, Australia.

Hearing details:

2010.

Adelaide:

May 19

June 28 and 29.

1 THE APPLICATIONS WERE AMENDED AT THE REQUEST OF ALINTA BY LEAVE OF FAIR WORK AUSTRALIA ON 28 JUNE 2010 TO REFLECT DEVELOPMENTS SINCE THE ORIGINAL APPLICATIONS WERE FILED ON 7 MAY 2010.

2 Exhibit A1 comprised three folders of documents and was tendered without objection.

3 ASU written submission as adopted by the other respondent parties.

4 Exhibit A1.

5 Exhibit A1 - tab 50.

6 Exhibit A1 – tab 59.

7 Exhibit A1 – tab 60.

8 Schedule 3 - Section 2(5) and Schedule 13 - Section 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

9 Exhibit A1 – tab 57.

10 Exhibit A1 – tab 59.

11 Exhibit A1 – tab 60.

12 Exhibit A1 – tab 62 and 64.

13 [2010] FWA 1320.

14 [2010] FWAFB 3510, 5 May 2010 per Giudice J, McCarthy DP and Larkin C.

15 Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368, 9 October 2009 per Watson VP, Hamberger SDP and Roberts C; Stuartholme School and Others v Independent Education Union[2010] FWAFB 1714, 3 March 2010 per Giudice J, Hamberger SDP and Spencer C.

16 [2009] FWAFB 368, 9 October 2009 per Watson VP, Hamberger SDP and Roberts C.

17 [2009] FWAFB 688, 28 October 2009 per Watson SDP, Richards SDP and Smith C.

18 The Unions are bargaining representatives for the respective agreements because they have members that fall within the scope of the proposed agreements.

19 Fair Work (Registered Organisations) Act 2009 – s.27.

20 Fair Work (Registered Organisations) Act 2009 – s.141.

21 See generally the objects of the Fair Work (Registered Organisations) Act 2009.

22 As a consequence of meeting held with the SBU on 26 May 2010, Alinta proposed that all delegates that were nominated by the union in writing (as at the commencement of bargaining) as delegates could attend meetings.

23 APESMA was named as a respondent however it was confirmed in the evidence of Ms Jones that APESMA does not have relevant members at the Augusta Power Station.

24 Exhibit A1 - tab 40.

25 In the absence of a satisfactory explanation for evidence not being called when a fact is in issue, it is permissible to draw an inference that the evidence would not have assisted the only party who was in a position to call that evidence: Jones v Dunkel and Another [1959] HCA 8; (1959) 101 CLR 298.

26 As taken from Alinta’s written submissions.

27 As taken from the ASU’s outline of submissions as adopted by each of the respondent unions.

28 [2010] FWA 1320.

29 There are no relevant regulations touching upon this matter.

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