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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 211
Decision Date: 22 JANUARY 2021

CaseChat Overview and Summary

In the case of Glenn Ferguson, the applicant sought a bargaining order under the Fair Work Act 2009. The applicant, Mr Glenn Ferguson, is an employee of the respondent, the Commonwealth Bank of Australia. The dispute arose from issues concerning the terms and conditions of employment, specifically regarding the interpretation and application of a collective agreement. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the applicant was eligible for a bargaining order under the Fair Work Act. A bargaining order allows an applicant to be represented by a bargaining representative in negotiations for an enterprise agreement. The court needed to determine whether the applicant met the criteria set out in the Act, including whether he was genuinely endeavouring to achieve an enterprise agreement and whether it was in the national interest. The court also had to consider whether the applicant had been involved in the negotiation of the relevant collective agreement.

The court found that the applicant met the criteria for a bargaining order. It was satisfied that Mr Ferguson was genuinely endeavouring to achieve an enterprise agreement and that it was in the national interest for him to be represented in the negotiations. The court noted the applicant's involvement in the negotiation of the relevant collective agreement and his commitment to resolving the dispute through bargaining. The court concluded that a bargaining order was appropriate in the circumstances and granted the application.

The final orders of the court included granting the applicant a bargaining order, allowing him to be represented by a bargaining representative in negotiations for an enterprise agreement. The court also ordered the Commonwealth Bank of Australia to facilitate the applicant's involvement in the bargaining process. The decision ensures that the applicant can participate in the negotiation of terms and conditions of employment, promoting fair and effective bargaining practices.

Orders