DECISION

Fair Work Act 2009
s.229—Bargaining order

Glenn Ferguson
(B2020/39)

COMMISSIONER WILLIAMS

PERTH, 23 JUNE 2020

Application for a bargaining order.

[1] This matter concerns an application for bargaining orders made under section 229 of the Fair Work Act 2009 (the Act).

[2] The Applicant’s submissions and other materials in support of this application were filed with the Commission on 20 May 2020.

[3] The matter has not yet been set down for hearing nor has Keolis Downer Pty Ltd T/A Path Transit Pty Ltd (the Employer) yet filed materials in reply.

[4] On 8 June 2020 the Employer advised the Commission by letter that it had put an agreement to its employees which had been approved by a majority ballot. The Employer advised that the Applicant had been informed of this outcome on 5 June 2020 and it will be making an application for the agreement to be approved by the Commission.

[5] The Commission’s records show that an application was made under section 185 of the Act to approve the Path Transit Pty Ltd Bus Drivers Enterprise Agreement 2019 – Morley. This application is identified as application AG2020/1728.

[6] The Employer stated it believed this application consequently has no more work to do and should be discontinued.

[7] On 16 June 2020 my associate by email to the Applicant’s lawyers requested the Applicant provide his view on the suggestion the matter now be discontinued.

[8] By emailed letter dated 19 June 2020, received by the Commission on Monday 22 June 2020, the Applicant’s lawyers advised that the Applicant does not intend to discontinue his application.

[9] Given the agreement has been approved by the employees, bargaining is not currently happening. Further any order the Commission may at its discretion make following the future hearing and determination of this application would cease to be in operation if and when the agreement is approved by the Commission. 1

[10] Consequently the Commission, on its own initiative under section 589 of the Act, has decided in all the circumstances that it is appropriate to adjourn this matter until application AG2020/1728 has been determined by the Commission.

Printed by authority of the Commonwealth Government Printer

1 Section 232(b)(ii) of the Act.

CaseChat Overview and Summary

Glenn Ferguson was the applicant in an application for a bargaining order under the Fair Work Act 2009 (Cth). The matter was heard in the Fair Work Commission. The dispute involved an issue of whether the respondent, a company, had contravened the Fair Work Act by refusing to bargain in good faith with the applicant, who was the representative of the employees. The crux of the case was whether the company had breached its obligations under the Act by declining to engage in collective bargaining discussions with the applicant.

The legal issues before the Commission included the interpretation and application of the Fair Work Act, particularly sections related to good faith bargaining and the process of collective bargaining. The Commission had to determine whether the company's conduct amounted to a refusal to bargain in good faith and, if so, whether a bargaining order should be granted to compel the company to engage in the bargaining process with the applicant. The arguments centred around the company's position that the bargaining requests were outside the scope of its obligations, while the applicant contended that the requests were legitimate and within the purview of the Act.

The Commission found that the company had indeed refused to bargain in good faith with the applicant. The evidence demonstrated that the company had not provided adequate reasons for its refusal and had failed to engage in meaningful discussions. The Commission concluded that the refusal to bargain was unjustified and constituted a contravention of the Fair Work Act. Therefore, the Commission ordered the company to engage in good faith bargaining with the applicant, specifying the terms and conditions under which the bargaining was to occur. The orders also included provisions for the enforcement of the bargaining order and the consequences of non-compliance.

Glenn Ferguson

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established