Mr Christopher Dudfield v Australian Federal Police

[2011] FWA 5406

[2011] FWA 5406

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Mr Christopher Dudfield
v
Australian Federal Police
(B2011/3245)

COMMISSIONER DEEGAN DARWIN, 19 AUGUST 2011

Application for bargaining orders.

[1] This matter arises out of an application for bargaining orders lodged with Fair Work Australia on 5 August 2011 by Mr Christopher Dudfield, an employee of the Australian Federal Police (the AFP). Mr Dudfield (the Applicant) is a bargaining representative in negotiations for a new enterprise agreement with the AFP on his own behalf, and on behalf of another 35 AFP employees.

[2] The application was heard in Canberra on Friday, 12 August 2011. At the hearing the Applicant appeared in person. Although the Applicant objected to an AFP application to be legally represented, I determined to grant permission for the AFP to be represented by a solicitor, Mr Luis Izzo, given the nature of the proceedings, and my assessment that the matter was likely to be more efficiently dealt with if the AFP were legally represented.

[3] The Applicant was seeking bargaining orders as follows:

1. The ballot process be halted until the issue of the ‘Determinations’ can be resolved.

2. FWA orders that the ‘Determinations’ are to be included in the Enterprise Agreement.

3. Bargaining is re-opened immediately so that the issue of the ‘Determinations’ can be resolved.

4. During the re-opened bargaining process the AFP is required to produce documents that show how the ‘Determinations’ have been formulated and decided and that bargaining representatives can put forward evidence to refute those claims.

5. As part of the re-opened bargaining process that the respondent must comply with good faith bargaining obligations of the Fair Work Act; particularly: disclosing relevant information, responding to proposals made by bargaining representatives and giving genuine consideration to the proposals of other bargaining representatives.

6. As part of the re-opened bargaining process that all bargaining sessions are recorded by audio device and accurately recorded in written minutes.

The Applicant’s Case

[4] The application set out the grounds upon which the orders were sought as follows:

1. Bargaining commenced on the 18th November 2010. Since that time a number of meetings were held. The meetings were held independently with AFPA, CPSU and then independent representatives. There were only 4 meetings of the 28 held where all bargaining parties were present.

2. During bargaining meetings the respondent claimed that the ‘Determinations’ made by The Commissioner under the proposed EA do not form part of the proposed EA and cannot be bargained or negotiated on.

3. The ‘Determinations’ (particularly Determination 3) have not been adequately researched or formulated and are based on unqualified bias against civilian employees and because of this the ‘Determinations’ are unjust and will have a heavy financial impact on a large number of employees across the organisation.

4. The respondent refused to discuss certain issues, including the ‘Determinations’, on multiple occasions. The minutes taken in the meetings did not record the concerns or objections that both I and other representatives expressed, and the meetings were not recorded on audio device. As such, I believe that the respondent has not acknowledged the concerns raised regarding the Determinations.

5. During meetings the respondent was requested to provide the ‘Determinations’, however failed to acknowledge or respond to the request.

6. The respondent refused to respond to proposals made by bargaining representatives in meetings.

7. The respondent has engaged in unfair conduct during the bargaining process by deciding which employees will be paid certain allowances whilst refusing to discuss or negotiate on the matter with bargaining representatives.

8. At a Fair Work Australia conference on 27th July 2011, the issue of whether the ‘Determinations’ formed part of the proposed Enterprise Agreement was discussed. As a result of these discussions the respondent changed the application of the ‘Determinations’ to favour the AFP so that it is significantly harder for an employee to dispute or rectify errors in the ‘Determinations’.

9. On the 4th August 2011 a response was received regarding the Notice of Concerns sent on 2nd August 2011.

10. I consider that the respondent has not responded appropriately to the Notice of Concerns because the respondent has made statements in his response that are not consistent with the Determinations that have been provided during bargaining. As such it does not appear that the dispute over the Determinations can be resolved in the time before the ballot is due to be held on 19 August 2011.

[5] The Applicant expanded upon the grounds set out in the application in his oral submissions. He stated that it was his view that the AFP had not met the good faith bargaining requirements by refusing to bargain about the content of certain ‘Determinations’ to be made by the Commissioner of the AFP (see paragraph [11] below) or to allow those Determinations to be included in the enterprise agreement. The Applicant also raised a number of other issues related to the general conduct of the bargaining including:

• The threatening nature of a statement made by a Mr Alan Scott, Commander and AFP Lead Negotiator for the Enterprise Agreement (Commander Scott), that if the proposed agreement were voted down there would be no backdating of pay rises in any new agreement;



• The fact that a change was made to the formulation of the proposed Determinations following a bargaining dispute conference in FWA;



• An invitation by Commander Scott to deal with him directly about any concerns he had with the proposed Determinations; and



• A refusal by Commander Scott to allow a bargaining representative to raise a matter that had previously been dealt with at a meeting that the particular bargaining representative was unable to attend.

The Intervenor

[6] At the hearing the CPSU, which was also a bargaining representative for the proposed agreement, appeared in support of Mr Dudfield’s application. Despite initially claiming that the AFP had failed to provide the CPSU with relevant information relating to the proposed Determinations, Mr Taylor, for the CPSU eventually conceded that the information provided by the AFP was sufficient to allow CPSU members to determine if they were affected by the terms of the Determinations.

The AFP’s Case

[7] In response the representative of the AFP presented evidence in the form of an affidavit from Commander Scott. 1 Commander Scott was cross-examined on the statement by the Applicant.

[8] Commander Scott’s affidavit set out the history of negotiations for a new AFP enterprise agreement (EA) and, in relation to the present application for bargaining orders, stated that:

• the proposed EA provided three different working patterns for AFP employees and different conditions attached each particular working pattern;



• the features of each of the three working patterns were set out in the proposed EA, as were the conditions which attached to each pattern;



• for reasons of operational efficiency and flexibility it had been the AFP bargaining position from the commencement of bargaining that that the assignment of roles to a particular working pattern would be a matter for the discretion of the AFP Commissioner rather than being provided for formally in the EA;



• the assignment of roles to a particular working pattern was a feature of the current EA which applied to AFP employees;



• the draft Determinations through which the Commissioner intended to assign roles to working patterns had been made available to the bargaining representatives in mid-June 2011 and amendments had been made to the drafts in response to claims made by the bargaining representatives;



• the applicant for the bargaining order had not, until very recently made any specific requests concerning the draft Determinations.

[9] Commander Scott’s evidence was that he had met with the Applicant on 23 July 2011 (shortly after the Applicant had lodged a bargaining dispute with FWA concerning the draft Determinations and their relationship with the proposed EA) 2 and explained to him the AFP’s reasons for dealing with the assignment of roles to working patterns in the manner intended. According to Commander Scott, he had also written to the Applicant on 4 August inviting his comments or input on the drafts of the Determinations and again met with him on 10 August to allow him to put his comments and concerns. At paragraph [33] of his affidavit Commander Scott set out in detail the manner in which he had explained the AFP position to the Applicant.

[10] In response to the Applicant’s claim that the minutes of bargaining meetings did not accurately reflect the discussions, Commander Scott noted that draft minutes had been circulated to all bargaining representatives inviting comments or queries and that the Applicant had at no time commented on the contents of the minutes.

[11] Commander Scott also noted that an amendment had been made to the draft Determinations following a bargaining dispute conference held at FWA in response to a comment of a Union representative that the Determinations were to be made ‘under’ the EA. As this had never been the intention the Determinations were amended to make it apparent that they were to be made under s.27 of the Australian Federal Police Act 1979 (Cth).

[12] Under cross-examination by Mr Dudfield, Commander Scott indicated that there had been a general agreement to keep the early bargaining discussions confidential but that as positions became firmer it had been recognised that bargaining representatives would need to report to and discuss the negotiations with those whom they represented.

[13] When re-examined Commander Scott responded to a number of the Applicant’s claims in the following fashion:

• He denied that there was any threat involved in his statement that back pay could not be guaranteed in any new agreement if the proposed EA was voted down; and



• He did not believe any bargaining representatives had been denied the ability to find out what had occurred in meetings, noting that minutes were circulated and that any amendments to the draft agreement were highlighted to ensure that the bargaining representatives could identify proposed changes.

The Applicant’s Submissions

[14] It was the Applicant’s submission that the AFP had generally not been helpful to individual bargaining representatives, and had not been as open to dealing with their comments or giving detailed responses to them, the individual bargaining representatives, as he would have expected.

[15] The Applicant said in oral final submissions:

“I believe, just due to the inabilities and the refusals of certain aspects...of the AFP to at least be conducive to open discussions to various aspects, particularly in regards to the way they respond to bargainers, their behaviour towards bargainers and generally, that it just appears that as the material has come out things have been changed, things have moved and that generally, when the issues have tried to be raised back to the AFP, whether it be Determinations or EA, we generally get very little help from them.

I'm not saying that they're required to give us help but I would expect that at least we would get responses and they would be open to at least hearing what we have to say or give some form of response better than one or two lines and a dismissal of the bargainers, particularly when Commander Scott is representing the Commissioner; it should be as if we are speaking directly to the Commissioner and we should be given fair responses and consideration to anything that we say. Just as he is affording his national managers, we should also be afforded that...” 3

The Intervenor

[16] Mr Taylor, for the CPSU, made no submissions.

AFP Submissions

[17] Mr Izzo made comprehensive submissions on behalf of the AFP in support of the contention that the good faith bargaining requirements set out in s.228 of the Act had been met and that, in accordance with s.230(3) of the Act, there was therefore no ability for FWA to make bargaining orders.

[18] In relation to Ground 1 of the application he noted that the AFP, through Commander Scott, had given detailed reasons (generally on the basis of a disparity of interests and the wishes of the bargaining representatives) for separate bargaining meetings being conducted with the AFPA, CPSU and the individual bargaining representatives in the initial stages of bargaining, with joint meetings being convened at a later stage. He relied on the decision in of Flinders Operating Services Pty Ltd T/A Alinta Energy v ASU and Ors 4 for the proposition that the purpose of the Act and the good faith bargaining requirements is not to prescribe with exact detail how bargaining is to be conducted but rather to establish good faith bargaining obligations required of parties to agreement negotiations.5

[19] So far as Ground 2 of the application was concerned it was put that the AFP had maintained throughout bargaining that, in order to ensure operational flexibility and efficiency, it wanted to maintain the Commissioner's discretion to determine which roles would be assigned to which working patterns. Thus, the specific details regarding which positions or roles are assigned to which working pattern had not been included in the text of EA by the AFP. Nor did the AFP wish the Determinations assigning the roles to be an attachment to the proposed EA (as they are to the existing EA). This was because the AFP had found that the current arrangement caused significant administrative difficulties with changes to operations. 6 It was noted that these reasons were explained to all the bargaining representatives during negotiations.

[20] In relation to the claim that the AFP had refused to talk about the Determinations, this was denied. It was reiterated that the matter had been raised only recently by the Applicant and there was substantial evidence of meetings and correspondence about the Determinations since that time. It was correct to claim, however, that the AFP did not want the Determinations included in the proposed EA, or to bargain in relation to those Determinations, and there was evidence of the reasons for this position, which had been communicated to the bargaining representatives. The draft Determinations had been distributed for comment in June, as soon as it was possible to do so.

[21] Ground 3 of the application took issue with the content of the draft Determinations. There was evidence about the manner in which the content of the Determinations had been arrived at, and further evidence of the bargaining representatives being given the opportunity to comment and suggest amendments. It was the AFP’s submission that the way the AFP had gone about drafting and revising the Determinations “did not sound like something that’s been done on whim”, rather input was being obtained from a number of different areas within the organisation. It was also put that a good faith bargaining requirement would not arise automatically because a matter might adversely affect the terms and conditions of employees. 7

[22] It was submitted that the AFP had not refused to discuss certain issues and that bargaining representatives had been given the opportunity to comment on the accuracy of the minutes of meetings (an opportunity not taken up by the Applicant prior to lodging the current application for bargaining orders).

[23] So far as Ground 6 of the application was concerned it was put that the Applicant had not identified the particular proposals in relation to which he claimed that the AFP had failed to respond.

[24] On the basis of earlier submissions and the evidence it was put that there was no substance to the claim made at Ground 7 of the application. It was also the AFP position that there was nothing capricious or spiteful in the AFP decision to amend the Determinations following the bargaining dispute conference and that the change was made due to a drafting error in the documents which was brought to the attention of the AFP at the conference.

[25] Finally, it was submitted on behalf of the AFP that, if there was a finding that the AFP was in breach of the good faith bargaining requirements, the orders sought by the Applicant could not be made by FWA. Specifically, it was argued that Order 1 (that the ballot process be halted until the issue of the Determinations was resolved) amounted to an indefinite stay of the ballot and as such, would not comply with the terms of s.255 of the Act which provides that FWA cannot make an order which requires, or has the effect of requiring, an employee to approve, or not approve, a proposed enterprise agreement. It was submitted that an indefinite stay of the ballot process had the effect of requiring an employee not to approve an enterprise agreement. In support of the argument the AFP relied on three recent decisions of FWA. 8

[26] The AFP also submitted that Order 2 as sought could not be granted as it would not comply with the terms of s.255 of the Act. No further submissions were necessary as I indicated that it was my view that an order in those terms was not within my power to make.

[27] The AFP opposed the application for orders that bargaining meetings be recorded and transcribed on the basis that it had not been established that the minutes of the meetings did not reflect the content of the meetings. There was already a process in place which provided for the amendment of disputed minutes and such an order could potentially impact on the efficiency of the bargaining process. It was contended that recording the meetings could inhibit a frank and robust exchange of views, thus impeding the bargaining process. 9

The Applicant’s Submissions in Reply

[28] In response to the submissions put by Mr Izzo for the AFP the Applicant:

• Indicated that the AFP’s explanation for holding separate bargaining meetings had never been put to bargaining representatives prior to the hearing;



• Submitted that at least one of the proposed Determinations could not be said to be required for purposes of flexibility as it was not connected with working patterns but based on the holding of “contemporary skills and knowledge” and was supposedly to provide for mobility;



• Noted that he had not earlier raised concerns with the draft Determinations as he was prevented from doing so by the AFP’s refusal to bargain in relation to their terms. He was told there was “no leeway to bargain or negotiate on them”; 10 and



• Admitted that his lack of experience in bargaining had contributed to his failure to contest matters that he considered were not accurately represented in the minutes.

The relevant statutory provisions

[29] Section 228 of the Act sets out the good faith bargaining requirements:

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.

(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.

[30] Section 229 of the Act relevantly provides:

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.

(2) .....

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.

(5) ....

[31] I am satisfied that the relevant requirements of s.229 have been met.

[32] Section 230 of the Act sets out the requirements for the making of a bargaining order.

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

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

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;

(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) 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).

[33] I am satisfied that the requirements of sub-sections 230(1)(a) and (b) and 230(3)(b) have been met.

Consideration

[34] In order to make a bargaining order I must be satisfied that one of either s.230(3)(a)(i) or (ii) applies. Section 230(3)(a)(ii) has not been raised in relation to this application. Therefore, I am unable to make a bargaining order unless I am satisfied that the AFP is not meeting, or has not met, the good faith bargaining requirements.

[35] The grounds upon which the Applicant claims that the AFP is not meeting the good faith bargaining requirements were set out in his application. I will deal with each substantive ground in the order it appears in the application.

Grounds 1-4, and 7

[36] In his Notice of Concerns 11 lodged with the AFP on 2 August 2011, and at Ground 2 of his application, the Applicant appears to claim that by refusing to bargain about the allocation of roles under the Determinations the Commissioner of the AFP intends to make, the AFP has not met, and is not meeting, the good faith bargaining requirements.

[37] I am unable to accept that a refusal by the AFP to include in the proposed EA those instruments to be utilised for allocating roles to certain working patterns, or to bargain about the contents of those instruments, can amount to a breach of the good faith bargaining requirements. The provisions of sub-section 228(2) of the Act are clear. A party will not be in breach of the good faith bargaining requirements merely because that party refuses to include a matter in a proposed EA or to make a concession in relation to a particular matter.

Ground 5

[38] Given that the AFP clearly indicated to the bargaining representatives that it would not include the Determinations in the proposed EA I am unable to accept that any failure by the AFP to provide those Determinations to the parties, or to provide them in a timely manner, could constitute non-compliance with s.228(1)(b). I am not satisfied that, in those circumstances, that the Determinations could be considered “relevant information” for the purposes of that sub-section. I note that the AFP did, in fact, provide draft copies of the Determinations to the bargaining representatives (including individual bargaining representatives) in mid-June.

Ground 6

[39] Insofar as this Ground relies on the failure of the AFP to respond to proposals concerning the Determinations I do not consider that there has been any breach of the good faith bargaining requirements. I am satisfied that the AFP made clear its reasons for not conceding to the demand that the Determinations form part of the negotiations and part of the EA. I am also satisfied that, in doing so, the AFP sufficiently discharged any good faith bargaining obligation attaching to that matter. There is no evidence of any other failure of the AFP to adequately respond to matters put to it by bargaining representatives.

Ground 8

[40] Given the explanation of the AFP for the reasons for making the amendments to the draft Determinations to properly reflect their relationship to the underpinning instrument (the proposed EA) I am not satisfied that this action constituted any breach of the good faith bargaining obligations

Grounds 9 and 10

[41] These Grounds merely satisfy the requirements of s.229(4)(b). I was satisfied that these requirements had been met by the Applicant.

Conclusion

[42] As I am not satisfied that the AFP has not been meeting the good faith bargaining requirements, in accordance with s.230(3) of the Act I am unable to make a bargaining order. In those circumstances I do not need to consider the terms of the orders sought.

[43] The application is dismissed.

COMMISSIONER

Appearances:

Mr Christopher Dudfield, self-represented, for the Applicant.

Mr Luis Izzo, Clayton Utz, for the Respondent.

Hearing details:

2011.

Canberra:

August, 12.

 1   Exhibit AFP 1.

 2   Section 240 Application to Deal with a Bargaining Dispute filed on 18 July 2011 (B2011/3151).

 3   Transcript PN119-PN120.

 4   [2010] FWA 4821 (Hampton C).

 5   Transcript PN130-PN134. See also Transcript PN203.

 6   Paragraphs 17-21 of AFP 1.

 7   Transcript PN163.

 8   Transport Workers’ Union v United Resource ManagementPty Limited (2010) FWA 8765 (Cambridge C); Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd [2010] FWA 942 (Roberts C) and National Union of Workers v CHEP Australia Limited [2009] FWA 202 (VP Watson).

 9   Transcript PN2011-PN201.

 10   Transcript PN221.

 11   Attachment to the Applicant’s Form 32 Application for a Bargaining Order dated 5 August 2011.

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