Glenn Ferguson

[2021] FWC 211

[2021] FWC 211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Glenn Ferguson
(B2020/640)

COMMISSIONER WILLIAMS PERTH, 22 JANUARY 2021

Application for a bargaining order.

[1] The Applicant, Mr Glenn Ferguson (the Applicant or Mr Ferguson), is an employee bargaining representative for a proposed enterprise agreement that would cover the bus drivers of the Respondent, Keolis Downer T/A Path Transit Pty Ltd (the Respondent or Path Transit), working out of the Respondent’s Kalamunda depot.

[2] Mr Ferguson has given written notice setting out concerns regarding the Respondent’s bargaining representatives to the effect that he believes the Respondent is not meeting the good faith bargaining requirements of the Fair Work Act 2009 (Cth) (the Act).

[3] The grounds relied upon in the application in summary are as follows:

•  It is alleged that the Respondent excluded the Applicant from bargaining meetings and failed to respond to the Applicant’s proposal that the Respondent refrain from excluding him from meetings held between the Transport Workers Union (TWU) and the Respondent.

•  That the Respondent has not complied with requests from the Applicant to provide copies of all minutes of all bargaining meetings held between the TWU and the Respondent and the copies of any correspondence between the Respondent and the TWU pertaining to the bargaining process and the decision to exclude the Applicant and others from the bargaining process.

[4] There are several employee bargaining representatives participating in the bargaining including the TWU, Mr Ferguson, and other individuals, some of whom are associated with Mr Ferguson.

[5] The application was the subject of a conference on 27 October 2020 but was not resolved.

[6] At the hearing, evidence was given by Mr Ferguson on his own behalf, the Applicant also called Mr Eamon Leonard, an employee bargaining representative, to give evidence. Mr James Edmiston, the Development Manager, and Mr Brendan Davis, the Operations Manager, gave evidence for the Respondent.

Factual Findings

[7] In November 2019, Path Transit was notified by Mr Ferguson that he had been nominated as a bargaining representative for a number of employees who were to be covered by the proposed agreement.

[8] Bargaining meetings commenced in December 2019.

[9] On 16 December 2019, the Respondent was advised by the TWU that they were unwilling to participate in bargaining meetings with bargaining representatives not affiliated with the TWU because they did not believe that would enable negotiations to proceed efficiently.

[10] Mr Ferguson and other employee bargaining representatives were informed of the TWU’s position regarding their attendance on 18 December 2019 at a bargaining meeting.

[11] In response, Mr Ferguson advised Mr Davis not to organise separate bargaining meetings. Mr Ferguson’s evidence was that if the Respondent did organise separate meeting, he and other employee bargaining representatives would file for bargaining orders. 1

[12] As a consequence of the TWU’s position, the Respondent from that time onwards conducted two sets of parallel bargaining meetings. Meetings were held with the Respondent and Mr Ferguson and some other employee bargaining representatives and, separately, meetings were held with the Respondent and the TWU alongside other employee bargaining representatives.

[13] Whilst there is some disagreement between the witnesses about the exact number and dates of the meetings I am satisfied that the Respondent invited Mr Ferguson and other bargaining representatives to between 12 and 14 bargaining meetings from the middle of December 2019 through to early November 2020. I am also satisfied that Mr Ferguson attended the vast majority of those meetings.

[14] The Respondent’s approach in fact was to invite all bargaining representatives to the meetings above. Only when the TWU advised on each occasion that they declined the invitation was a secondary meeting with them held.

[15] Parallel to the meetings with Mr Ferguson, the Respondent held meetings with the TWU and bargaining representatives for a similar number of meetings.

[16] I am satisfied that throughout the course of the meetings Mr Ferguson was actively involved in negotiations with the Respondent, raising claims and considering claims from the Respondent. The Respondent also actively participated in those negotiations with Mr Ferguson, considering and responding to his claims with appropriate explanations.

[17] The Respondent provided a tracking document, and when requested by Mr Ferguson a printout of that document, which records all of the respective claims from all the employee bargaining representatives and the position of the Respondent to those claims. Specifically, this allowed Mr Ferguson to see what the TWU’s claims were about particular matters. 2

[18] I accept the evidence that at least 14 of the claims raised by Mr Ferguson have been addressed or included in the proposed enterprise agreement.

[19] The Respondent took minutes of both sets of meetings and provided copies of these minutes to all the bargaining representatives.

[20] I find Mr Ferguson regularly received copies of the meeting minutes of the meetings he participated in and the meetings the TWU participated in.

[21] Whilst there were some disagreements between the evidence of the witnesses as to whether each and every one of the meeting minutes had been distributed. I am satisfied on the balance that this did occur. However, the evidence demonstrates there were some administrative oversights and on a limited number of occasions there was a delay in providing minutes to Mr Ferguson.

[22] At the bargaining meeting on 15 September 2020 the Respondent indicated it was considering finalising the agreement and putting it to a vote of employees. This was the case immediately prior to the date of hearing as well. 3

[23] On 2 October 2020 Mr Ferguson wrote to the Respondent’s bargaining representative, Mr Davis, outlining his concerns that the Respondent was not bargaining in good faith because they were holding separate meetings with the TWU. This application was then filed on 15 October 2020 with the Commission.

[24] I accept the evidence of Mr Davis that all employees of Path Transit who are bargaining representatives have been released to attend meetings or have been allowed to swap shifts to facilitate attendance. They are however not paid if they attend meetings when not rostered on. If however, due to not working a particular shift their hours have fallen below 38 for that week their pay has been made up to the guaranteed 38 hours per week.

The legislation

[25] Section 228 of the Act prescribes the good faith bargaining requirements.

[26] Section 229 of the Act prescribes the prerequisites for making an application for bargaining orders.

[27] Section 230 of the Act prescribes when the Commission may make a bargaining order.

[28] These provisions are set out below:

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;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

(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.

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 the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Note: See also section 255A (limitations relating to greenfields agreements). 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

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

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

Non-compliance with notice requirements may be permitted

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

230 When the FWC may make a bargaining order

Bargaining orders

(1) The FWC 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

(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Note: See also section 255A (limitations relating to greenfields agreements)

Agreement to bargain or certain instruments in operation

(2) The FWC 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;

(c) a scope order 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) The FWC 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).

Submissions

The Applicant

[29] The Respondent has created three classes of bargaining representatives who represent the Respondent's employees in the bargaining process. Those classes are:

•  The TWU bargaining representatives.

•  Mr Ferguson and bargaining representatives aligned with him; and

•  Three non-aligned bargaining representatives.

[30] The Applicant submits that the Respondent treats those classes of employee bargaining representatives differently with Mr Ferguson and aligned employee bargaining representatives being treated in an inferior fashion to the other bargaining representatives.

[31] The Respondent permits the non-aligned employee bargaining representatives to attend both the bargaining meetings with Mr Ferguson and the meetings with the TWU and the Respondent provides those independent employee bargaining representatives with ample information regarding all bargaining meetings.

[32] The Respondent invited the TWU to attend bargaining meetings with Mr Ferguson. However, the Respondent did not invite nor allow Mr Ferguson to attend the bargaining meetings between the Respondent and the TWU bargaining representatives.

[33] The Applicant submits that the Respondent has stated that it would pay its employees who are bargaining representatives aligned with the TWU for their attendance at negotiations in relation to the proposed agreement. The Applicant states that the Respondent has failed to do the same for employees who are bargaining representatives aligned with Mr Ferguson.

[34] The Applicant’s submissions state that the particular operation of parallel sets of meetings by the employer’s bargaining representatives is contrary to section 228 paragraph (a) of the Act, and restrictive of the obligations set out in paragraphs (c), (d) and (e) of the Act.

[35] More significantly, the Applicant submits that the exclusion of a particular bargaining representative from freely attending meetings set down for the purpose of furthering the enterprise bargain is “unfair conduct”. This potentially undermines collective bargaining but, most importantly, undermines or has the potential to undermine freedom of association insofar as a bargaining representative excluded from some matters might be regarded as potentially less effective in representing the persons who have nominated that bargaining representative.

[36] The submissions sate that paragraph (f) of the above requirements leaves no doubt that the Respondent’s facilitation of separate streams of enterprise bargaining meetings for the same enterprise bargaining outcome is contrary to the requirements as, by its conduct, the Respondent is not “recognising and bargaining” in either the spirit or the letter of that requirement.

The Respondent

[37] It is the Respondent’s submission that it has at all times acted in accordance with its obligations under the Act, in particular in relation to good faith bargaining. Section 230(3)(a)(i) of the Act allows the Commission to make a bargaining order if it is satisfied that a relevant bargaining representative has not met, or is not meeting, the good faith bargaining requirements.

[38] The Act requires that bargaining representatives refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining. 4

[39] The Applicant claims that bargaining representatives were treated unequally, or unfairly, as there were secondary meetings that not all bargaining representatives, including the Applicant, were invited to. But does this undermine freedom of association or collective bargaining? The mere existence of a secondary meeting may not diminish the Applicant’s capacity to represent the position of those employees who had nominated him as their bargaining representative, nor did it result in anything other than a single proposed enterprise agreement.

[40] The employees, in effect, have been able to collectively bargain, through their representatives for an enterprise agreement and have been represented by representatives of their choosing in this regard. The Respondent submits that its conduct was not capricious or unfair, nor did its conduct undermine freedom of association or collective bargaining.

[41] The Act requires that bargaining representatives are recognised and bargained with. 5 The Applicant cannot argue that they have not been recognised and bargained with, nor has that point been agitated by the Applicant. The Respondent further submits that s 228(f) of the Act does not require other employee bargaining representatives, that is other than the Respondent, to recognise and bargain with the Applicant.

[42] The Respondent has given evidence that at the last bargaining meeting, it was discussed that there were to be no more meetings and that bargaining was at an end. The Applicant contends that despite the position of the Respondent certain matters remain unresolved to his satisfaction. However, the Applicant also agreed that the Respondent had rejected these proposals and there was no requirement under the Act that parties reach agreement. The Respondent therefore questions the work a bargaining order can do.

[43] This matter is about whether the Commission is satisfied that the parties are not adhering to good faith bargaining requirements under s 228 the Act. The Respondent states the Commission cannot be so satisfied.

[44] In the alternative, the Respondent asserts that bargaining is at an end, therefore any bargaining order would have no work to do.

[45] The Commission has been asked to exercise its discretion under s 230 of the Act to make a bargaining order. For all the reasons set out above, the Respondent says it should not.

Consideration

[46] The circumstances about which the Applicant complains in this matter were very similar to those present during bargaining involving the same employer the TWU and Mr Ferguson for another agreement which was approved by the Commission in September of 2020.

[47] A Full Bench of the Commission considered an appeal of Deputy President Beaumont’s decision approving that agreement. In that appeal Mr Ferguson’s contention that the Respondent had failed to engage in good faith bargaining was considered as follows:

“[2] The background of the matter may be explained briefly. Path Transit Pty Ltd (the company) is a private passenger transportation business located in Western Australia. It sought to negotiate an enterprise agreement pursuant to the provisions of the Fair Work Act 2009 (FW Act) to cover the bus drivers it employed in the Morley and Bayswater areas in the Perth metropolitan area to provide public bus services under contract with the government of Western Australia. The “notification time” for the Agreement was 2 September 2019, when the company issued the notice of employee representational rights. There were a number of employee bargaining representatives in the bargaining which followed, which included the Transport Workers’ Union of Australia (TWU), Mr Ferguson, and some other individuals associated with Mr Ferguson. It appears that, at a bargaining meeting which occurred on or about 26 November 2019, the TWU representative announced that the TWU would not be “sitting in a room with others for these negotiations.” Thereafter the company bargained with the TWU separately from Mr Ferguson and the other individual bargaining representatives. However, this did not deny Mr Ferguson the opportunity to meet and bargain with the company, since he attended bargaining meetings on 5 December 2019, 12 December 2019, 27 February 2020, 5 March 2020 and 12 May 2020.

[3] On 17 January 2020, Mr Ferguson applied for bargaining orders pursuant to s 229 of the FW Act (bargaining application). In his application, Mr Ferguson alleged that the company, in meeting separately with the TWU, not providing the contact details of the other bargaining representatives and not providing the other bargaining representatives with the minutes of its meetings with the TWU, had not met the good faith bargaining requirements in s 228 of the FW Act. Mr Ferguson sought orders requiring the company to invite all bargaining representatives to attend each bargaining session that it arranged, and that the company and all other bargaining representatives provide him with their contact details and copies of all correspondence passing between them. Mr Ferguson’s bargaining application was allocated to Commissioner Williams, and the Commissioner subsequently conducted a conference in relation to the application on 5 February 2020.

…

[27] Although it is not necessary for us to express any view as to whether there was any failure of the company to engage in good faith bargaining, given the conclusions we have stated above, we observe that the contention in this regard advanced by Mr Ferguson appears to us to be weak. Mr Ferguson was not excluded from bargaining with the company on behalf of the employees he represented since, as earlier explained, the company met with him and the other individual bargaining representatives with whom he was associated on a number of occasions. His complaint is that the company did not meet with him at the same time that it met with the TWU, but this did not deprive him of the opportunity to respond to the company’s proposed terms of agreement or to advance employees’ claims. Indeed, the material before us suggests that the company acceded to the representations made by Mr Ferguson in a number of respects. Mr Ferguson’s grievance appears in substance to be that he was deprived of the opportunity to negotiate his position with the TWU, but we cannot conceive why that should be regarded as an element of good faith bargaining falling within the requirements prescribed by s 228(1). In any event, we do not consider there is a reasonable basis to criticise the company for bargaining separately with the TWU and Mr Ferguson in circumstances where the TWU made it clear that it would not sit in the same room as Mr Ferguson.” 6

[48] In this matter currently before the Commission, there is no evidence that Mr Ferguson was excluded from bargaining with the Respondent. The Respondent recognised him as a bargaining representative and bargained with him.

[49] The Respondent attended, and invited Mr Ferguson to attend, various meetings at reasonable times.

[50] Relevant information was disclosed including what was occurring in the other meetings with the TWU, by way of distribution of meeting minutes, to all bargaining representatives including Mr Ferguson.

[51] As I have found above, the Applicant was able to and did actively engaged in the bargaining process with the Respondent on behalf of the employees he represented.

[52] The Respondent genuinely considered the proposals Mr Ferguson made with explanation and responded to these in a timely manner.

[53] Nothing the Respondent did could fairly be characterised as capricious or unfair conduct. Therefore, the Respondent certainly was not undermining freedom of association or collective bargaining.

[54] Whatever the reasons for the enmity between the TWU and Mr Ferguson, which apparently backgrounds these difficulties, the TWU’s position created practical difficulty for the Respondent in arranging bargaining meetings which it dealt with as best it could in the circumstances. The fact that Mr Ferguson was aggrieved by these developments is simply not sufficient to demonstrate that the Respondent has not met the good faith bargaining requirements under the Act.

[55] If I am wrong on that and if the requirements of s 230(1)(a) and (b) of the Act have been met, in my view, it would not be reasonable to make an order in circumstances where Mr Ferguson threatened to make an application for bargaining orders on 18 December 2019 if the Respondent held separate streams of meetings. The Respondent did progress the bargaining with parallel streams of meetings from then onwards. Mr Ferguson knew this and attended multiple meetings and actively engaged in bargaining with the Respondent throughout 2020. However, Mr Ferguson only in October 2020 made this application after the Respondent on 15 September 2020 had advised it was considering putting an agreement to a vote of employees.

Conclusion

[56] I am not satisfied that the Respondent, as a bargaining representative for the agreement, has not met, or is not meeting, the good faith bargaining requirements. For completeness, nor am I satisfied that the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement.

[57] Consequently, the necessary prerequisites under s 230(3) of the Act for the Commission to consider exercising its discretion to make a bargaining order have not been satisfied.

[58] Because the Respondent has not failed to meet the good faith bargaining requirements this application by Mr Ferguson must now be dismissed and an order to that effect will be issued.

Appearances:

M J Lourey of Chapmans Barristers and Solicitors for the Applicant.
R Twomey for the Respondent.

Hearing details:

2020.
Perth:
24 November.

Final written submissions:

Respondent, 9 December 2020.
Applicant, 18 January 2020.

Printed by authority of the Commonwealth Government Printer

<PR726214>

 1   Exhibit A1 at Paragraph 16.

 2   Transcript at PN 184.

 3   Ibid., PN 550.

 4   Fair Work Act 2009 (Cth) s 228(e).

 5 Ibid., s 228(f).

 6   [2020] FWCFB 6615.