Mr Glenn Ferguson v Swan Transit Services (South) Pty Ltd

Case •

[2017] FWC 1358

•

13 APRIL 2017

No judgment structure available for this case.
[2017] FWC 1358
FAIR WORK COMMISSION

DECISION


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

Mr Glenn Ferguson
v
Swan Transit Services (South) Pty Ltd
(B2017/179 and B2017/150)

DEPUTY PRESIDENT BINET

PERTH, 13 APRIL 2017

Applications for a bargaining order – Application refused

[1] On 16 February 2017, Mr Glenn Ferguson (Mr Ferguson) filed an application pursuant to section 229 of the Fair Work Act 2009 (Cth) (FW Act) for bargaining orders in relation to the bargaining for a new enterprise agreement (New Agreement) to replace the Swan Transit Enterprise Agreement 2012 (Current Agreement) which notionally expired on 23 April 2016 (First Application). On 28 February 2018, Mr Ferguson filed a second application for bargaining orders in relation to the bargaining for the New Agreement (Second Application).

[2] The parties to the Current Agreement are Swan Transit Services Pty Ltd (Swan Transit), Swan Transit Services (South) Pty Ltd (STS) and Transit Systems WA T/A Transit Riverside Limited (TSWA) and the employees engaged by Swan Transit, STS and TSWA to primarily drive buses (Drivers). The Current Agreement covers the Transport Workers' Union of Australia (TWU).

[3] Mr Ferguson filed both the First Application and the Second Application (Ferguson Applications) in his capacity as a bargaining representative. According to materials filed by the parties with the Fair Work Commission (FWC), Mr Ferguson is, for the purposes of the FW Act, the bargaining representative of twelve of the Drivers. 1

[4] On 1 March 2017, Mr Ferguson requested that the Ferguson Applications be heard urgently and prior to a ballot scheduled to commence at 6:00am on Thursday, 6 March 2017 and conclude at 1:00pm on Friday, 10 March 2017.

[5] On 1 March 2017, the matter was allocated the first available hearing date, being Tuesday 7 March 2017. The Notice of Listing issued on 1 March 2017 informed the parties that a conference would be convened at 10:00am Tuesday 7 March 2017 and that the matter would be heard and determined the same day if conciliation was unsuccessful.

[6] To ensure the efficient conduct of the hearing, Directions were issued on 1 March 2017 (Directions). The Directions required Mr Ferguson to file in the FWC and serve on Swan Transit and each employee bargaining representative by 5:00pm, Thursday 2 March 2017:

    • an outline of submissions in relation to the Ferguson Applications;
    • a signed and dated witness statement for any witness to be called;
    • copies of any authorities; and
    • a copy of any document upon which he relied.

[7] The Directions required Swan Transit and the TWU (and any employee bargaining representative who chose to do so) to file in the FWC and serve on Mr Ferguson, by 5:00pm, Friday 3 March 2017:

    • an outline of submissions in relation to the Ferguson Application;
    • a signed and dated witness statement for any witness to be called;
    • copies of any authorities; and
    • a copy of any document upon which they relied.

[8] The Directions stated that compliance with the Directions was mandatory and a failure to do so may disadvantage the party concerned.

[9] Despite requesting that the Ferguson Applications be urgently heard and determined, Mr Ferguson objected to the time frames contained in the Directions. He eventually filed his Outline of Submissions, a list of authorities (with incomplete and inaccurate citations) and a witness statement of Mr John Fawkes (Mr Fawkes) on Thursday 2 March 2017 at 5:06pm and subsequently filed a witness statement of Mr Walter Parker (Mr Parker) on Friday 3 March 2017 at 8:31am. Mr Fawkes and Mr Parker are both Drivers based at the Beckenham Bus Depot. The Outline of Submissions contained various assertions about the factual matrix which was not supported by any documentary or witness evidence filed by Mr Ferguson.

[10] In fairness to the other parties, the Directions were amended to grant the same extension for filing to the other parties: that is, 9:00am on Tuesday 7 March 2017 (being 9:00am on the business day following the date on which the materials were originally due to be filed).

[11] The TWU filed an Outline of Submissions at 8:43 am on Tuesday, 7 March 2017. Swan Transit filed a Statutory Declaration of Mr Glenn Murray (Mr Murray), Mr James Barlow (Mr Barlow) and Mr Steve Henderson (Mr Henderson) at 8:11am Tuesday, 7 March 2017. A Statutory Declaration by Mr Brian Thompson (Mr Thompson) was (due to its size) sent in a number of parts commencing at 8:17am. The final email of five was received at 8:49am. Swan Transit’s Outline of Submissions were filed at 9:03am.

[12] A conference was convened at 10:00am on Tuesday 7, March 2017. Conciliation was unsuccessful and the matter proceeded to hearing shortly after 3:00pm on the same day.

Background

[13] Swan Transit is one of three companies, the others being STS and TSWA, sharing the same shareholders and management, which operate bus services in Perth for the Public Transport Authority under various bus service contracts. The three companies employ approximately 840 drivers. 383 are employed by Swan Transit, 331 by STS, and 126 by TSWA. 2

[14] On or around 5 January 2016, Swan Transit issued Notices of Employee Representational Rights to the Drivers. STS and TSWA issued Notices of Employee Representational Rights to their employees at the same time. 3

[15] Swan Transit commenced bargaining with employee bargaining representatives on 5 February 2016. 4

[16] In total there have been 24 bargaining meetings held with the employee bargaining representatives and Swan Transit between 5 February 2016 and 24 February 2017. These occurred on the following dates:

    • 5 February 2016

    • 11 March 2016

    • 18 March 2016

    • 24 March 2016

    • 1 April 2016

    • 19 April 2016

    • 29 April 2016

    • 6 May 2016

    • 24 May 2016

    • 23 June 2016

    • 28 July 2016

    • 18 August 2016

    • 2 September 2016

    • 8 September 2016

    • 22 September 2016

    • 13 October 2016

    • 25 October 2016

    • 28 November 2016

    • 21 December 2016

    • 12 January 2017

    • 10 February 2017

    • 13 February 2017

    • 20 February 2017

    • 24 February 2017 5

[17] A proposed New Agreement was put up for approval on 6-8 June 2016 and another version put up for approval on 23-24 November 2016. Both versions of the proposed New Agreement received a majority of no votes from the Drivers. 6

[18] Mr Ferguson became an Employee Bargaining Representative in January 2017 and attended his first bargaining meeting on 10 February 2017. Mr Ferguson has attended three meetings since. These meeting were held on: 13 February 2017, 20 February 2017 and 24 February 2017  7

[19] On 16 February 2017, after the second bargaining meeting he attended and before the third held on 20 February 2017, Mr Ferguson filed the First Application. The First Application sought the following orders:

    “1. That the bargaining period be suspended for a period of three (3) weeks to allow all bargaining agents an opportunity to recommence the bargaining process afresh; with a time-table that will allow for orderly bargaining to proceed.

      2. That the employer formally advise all employees that during their non-work time on duty they are free to prepare, communicate and lodge with any and all bargaining agents all material related to the bargaining process.

    3. An independent chairperson may be appointed by resolution of a majority of individual bargaining agents. Any agreed Chairperson must liaise with all bargaining agents to compile a bargaining agenda of items for bargaining prior to each bargaining session.”

[20] According to Swan Transit, Mr Ferguson did not serve the First Application on Swan Transit until 21 February, the day after the third bargaining meeting he had attended was held. 8

[21] At the 24th bargaining meeting held on 24 February 2017, the majority of the bargaining representatives agreed to send the New Agreement to a ballot vote. 9

[22] Mr Ferguson filed the Second Application on 28 February 2017 and served it on Swan Transit the same day. The Second Application sought the following orders:

    “1. That the bargaining period be suspended until such time as:

    (a) the Respondent, provided answers to the questions on notices as provided by the single bargaining Unit, issued 20 February 2017; and

    (b) the “Single Bargaining Unit have a further two (2) weeks upon receipt of the information requested, to conclude its bargaining position within the areas of bargain yet to be agreed and or rejected within the bargain process; and

    (c) That the Respondent via an independent chairperson bargain with bargaining representatives to an agreed agenda of outstanding items, within a clear time table agreed by all bargaining representatives to conclude the bargaining process.

    (d) That upon the conclusion of the bargaining process the ballot for acceptance be conducted by the Australian Electoral Commission (AEC).”

[23] A conference was convened at 10:00am on Tuesday, 7 March 2017 to urgently consider the Ferguson Applications. The conference was attended by Mr Ferguson who was accompanied by Mr Peter Quinn of TransportEdge (Mr Quinn). Swan Transit was represented by Mr Michael Kent (Mr Kent) who was accompanied by Mr Thompson, Mr Murray, Mr Barlow and Mr Henderson. Mr Adam Dzieciol and Ms Kari Pnacek attended on behalf of the TWU as the default bargaining representative. The following twelve Drivers attended in their capacity as bargaining representatives either for themselves individually or for themselves and a number of their colleagues: Mr Roy Messom, Mr Alan Colgan, Mr Kelvin Denning, Mr Darrin Griffin, Mr Andrew Cummings, Mr Robert Pauletto, Mr Phil Murdock, Mr Rodney Phipps, Mr Gary Sturgess, Mr Robert Lister, Mr Parker and Mr Fawkes.

[24] The materials filed in the FWC by Swan Transit at the direction of the FWC indicate that the following individuals have been appointed bargaining representatives for the following Drivers for the purposes of FW Act:

Bargaining Representative

Who they are representing

TWU(Default bargaining rep)

Kari Pnacek

TWU members

Mark Bydder

TWU members

DRIVERS

Alan Colgan

Dale Watson

Param Singh

Vaughn Withnell

Trevor Ewen

Irene Chrystie

G Gitsham

Andrew Dalegleish

Angelo Amaga

Roy Messom

Nelson Rodgrigus

Elena Lim

Dale Watson

Neville Peters

Gus Mulana

Martin McInerney

Russell Turton

Shane Butcher

Steven Marriott

Tony DI Vincenso

Andrew Cummings

Jason Duffield

Koan Wan Lee

Justin Goddsmith

Rosetta Donnelly

Z. Gorezynski

Vajinder Virk

Andrew House

Robert Pauletto

Tony Carr

Rino Girardi

Sylvia White

Robert Lister

Scott Sebo

Jagjeet Dua

Darren O’Driscoll

Bill Steele

Christopher Bignell

Susan Floyd

Karen Malone

Darrin Griffin

Chris Yong

Gary Chewng

Stephen O’Connor

Martin Priddy

Damian Shanks

Nima Sherra

Garry Sturgess

Michael Russell

Ian Miller

N. Tibbles

Earl Anderson

Tyronne Arps

Lee-anne Munday 10

Individual bargaining rep

Phil Murdock 11

Individual bargaining rep

John Fawkes 12

Individual bargaining rep

Mr Rodney Phipps 13

Individual bargaining rep

Kelvin Denning

Brian Finlayson

Nayan Purayapati

Robert Nutman

Andrew Gooch

TRANSPORTEDGE

Glenn Ferguson 14

Haruinder Bhalla 15

Walter Parker

Mario Macarino

Kevin Giblett

Christopher Patron

Brian James

Vasu Krishnan

Tony Robinson

Brian Cotte

Graham Hartman

Syed Hussein

Thananebon Thanabalasinghorn

Peter Quinn 16

 Peter Mildenhall

Christopher Patten

[25] The matter could not be resolved at conciliation and proceeded to hearing. Mr Fawkes and Mr Parker gave evidence on behalf of Mr Ferguson. Mr Murray, Mr Barlow, Mr Henderson and Mr Thompson gave evidence on behalf of Swan Transit. The TWU did not call any witnesses. In the exercise of my powers under section 590(2)(b) of the FW Act, I invited any Bargaining Representative who was present who wished to do so to give evidence under oath. Mr Griffin, Mr Denning and Mr Sturgess elected to give evidence.

[26] The Hearing concluded shortly after midnight.

[27] On 8 March 2017, the parties were advised that I would not issue an order that the bargaining period be temporarily suspended and I would reserve my decision in relation to the other bargaining orders sought by Mr Ferguson pending the outcome of the ballot.

[28] The ballot proceeded as scheduled on 9 and 10 March 2017.

[29] On 10 March 2017, Swan Transit provided me with a report from Cirrena IVS, the organisation which conducted the ballot. The report revealed that the Agreement had been approved by a majority of employees. In light of this outcome, it is not necessary for me to determine whether the balance of the bargaining orders sought by Mr Ferguson should be granted. The following reasons therefore only address my reasons for granting permission to be represented and for declining to order that the bargaining period be temporarily suspended.

Permission to be Represented

[30] At the Conciliation and the subsequent Hearing held on 7 March 2017, Mr Ferguson appeared in his capacity as a bargaining representative. Mr Dzeicol appeared on behalf of the TWU. Mr Kent appeared on behalf of Swan Transit. Mr Kent’s appearance was opposed by Mr Ferguson. Mr Kent is an employee of a related company to Swan Transit. To the extent that it was necessary for Swan Transport to seek permission to be represented by Mr Kent, permission was granted pursuant to section 596 of the FW Act.

[31] Section 596 of the FW Actprovides 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 the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

    (2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC 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.
      …”

[32] I was satisfied that the matter could be dealt with more efficiently by Mr Kent’s appearance taking into account the complexity of the matter given that Mr Kent had been involved in the negotiations for the New Agreement and its predecessor, but was not relied upon as a witness, as were the potential alternative representatives of Swan Transit. I was also satisfied that Mr Kent’s appearance did not cause any unfairness to a party, or as between the parties, given that Mr Ferguson and Mr Dzeicol have appeared in this jurisdiction at conference and at hearing for many years, and therefore can be assumed to have comparable experience and expertise.

Consideration

[33] Mr Ferguson, in his capacity as a bargaining representative, has applied for bargaining orders under section 230 of the FW Act.

[34] In accordance with section 229(3) of the FW Act, he has done so after Swan Transit have requested employees approve the New Agreement.

[35] A bargaining representative may only apply for a bargaining order if the prerequisites set out in section 229(4) of the FW Act have been satisfied. Section 229(4) provides that:

    “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.”

[36] Mr Ferguson asserts that he gave notice to Swan Transit that he had concerns that Swan Transit were not bargaining in good faith by way of a letter that he distributed by hand at the bargaining meeting held on 13 February 2017. Mr Ferguson further asserts that Swan Transit have not responded appropriately to the concerns set out in that letter within a reasonable time.

[37] Swan Transit concedes that Mr Ferguson has given notice of his concerns. However, Swan Transit asserts that Mr Ferguson did not provide Swan Transit with a reasonable time within which to respond to those concerns. In any event, Swan Transit assert that it has met, and continues to meet, the good faith bargaining requirements set out in section 228 of the FW Act and that it has responded appropriately to Mr Ferguson’s concerns. 17

[38] Mr Ferguson became a bargaining representative in January 2017 and attended his first bargaining meeting on 10 February 2017. Mr Ferguson has attended three meetings since. These meeting were held on: 13 February 2017, 20 February 2017 and 25 February 2017. 18

[39] At the bargaining meetings he attended, Mr Ferguson claimed to be the Chairman of, and acting on behalf of, a group of bargaining representatives he described as the ‘Single Bargaining Unit’ (Ferguson Group). Those bargaining representatives are Mr Fawkes, Mr Murdoch, Mr Phipps, Ms Munday and Mr Quinn. Each of those bargaining representatives (with the exception of Mr Quinn) are Drivers who have appointed themselves their own bargaining representative but have not been appointed a bargaining representative by any other Driver. Mr Quinn, who is not a Driver, is the bargaining representative for two Drivers. The FW Act does not attach any status or standing to Mr Ferguson in relation to any Driver for whom he is not the bargaining representative. Mr Ferguson has been appointed a bargaining representative for only twelve of the 383 Drivers employed by Swan Transit.

[40] Mr Ferguson asserts that he gave notice at the bargaining meeting held on 13 February 2017 of his concerns that one or more of the bargaining representatives had not met the good faith bargaining requirements (Notice). According to Mr Ferguson, he served the Notice on:

    “Transport Wokers Union of Australia – Mr Garry Sturgsss – Swan Transit Services (South) Pty Ltd and all driver representatives who attended bargaining meetings on 13 February 2017” 19

[41] The FW Act requires that the a notice given pursuant to section 229(4)(b) must be served on all the bargaining representatives. Mr Ferguson did not lead any evidence to establish that all the bargaining representatives were in attendance at the bargaining meeting held on 13 February 2017 or were otherwise served in accordance with the requirements of section 229(4)(b).

[42] Mr Ferguson issued the Notice after only attending one bargaining meeting. The Notice asserted that the TWU had failed to recognise the Ferguson Group and failed to bargain for an agreement. The Notice also asserted that Swan Transit had:

    • Failed to consult with the Ferguson Group in relation to appropriate times for meetings.

    • Failed to disclose relevant information in a timely way.

    • Failed to respond to proposals made by the Ferguson Group in a timely manner.

    • Engaged in capricious and unfair conduct which undermined freedom of association and collective bargaining. 20

[43] Mr Ferguson lodged the First Application on 16 February 2017, three days after serving the Notice and four days before the next bargaining meeting.

[44] Swan Transit and the TWU therefore had only three days to respond to the concerns set out in the Notice and, since no meeting was held before the First Application was filed, no opportunity to demonstrate any changed behaviour at a bargaining meeting.

[45] According to Swan Transit, Mr Ferguson did not serve the First Application on Swan Transit until 21 March 2017, the day after the third bargaining meeting was held. 21 Schedule 1 of the Fair Work Commission Rules 2013 (Cth) (FW Rules) provides that a Form F32 Application for a Bargaining Order must be served on each respondent listed in the application and any other bargaining representative as soon as practicable after lodgement with the FWC. Typically, service occurs by email. Mr Ferguson did not provide an explanation for the delay in service.

[46] I am not satisfied that all the bargaining representatives were served with the Notice as required by section 229(4)(b) of the FW Act. I am not satisfied that Swan Transit or the TWU had a reasonable time within which to respond to the concerns set out in the First Notice as required by section 229(4)(c) of the FW Act. I am not satisfied that it is appropriate in the circumstances to permit non-compliance with section 229(4)(b) or (c). I am not satisfied that the First Application was served in accordance with Schedule 1 of the FW Rules. I therefore dismiss the First Application.

[47] Mr Ferguson filed the Second Application on 28 February 2017 and served it on Swan Transit the same day. The Second Application was served 15 days after the Notice was served and after two bargaining meetings had been held. I am satisfied that the prerequisites set out in section 229(4)(a), (c) and (d) of the FW Act have been satisfied in relation to the Second Application. For the reasons set out earlier in this decision, I am not satisfied that all the bargaining representatives were served with the Notice as required by section 229(4)(b) of the FW Act. In the event that they were served then it is necessary for me to determine whether a bargaining order should be made.

[48] Section 230 of the Act sets out the circumstances in which 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.

    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).”

[49] It is not contested that Swan Transit has initiated bargaining for the New Agreement. 22 I am therefore satisfied that the requirements in section 230(2) have been met.

[50] It is not contested that the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the New Agreement.

[51] Mr Ferguson does however assert that one or more of the bargaining representatives for the New Agreement have not met or are not meeting the good faith bargaining requirements.

[52] The good faith bargaining requirements are set out in section 228 of the FW Act. Section 228 provides that:

    “(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.”

[53] The grounds for the Second Application are set out in Schedule A of the Second Application. According to Schedule A, at the bargaining meeting held on 20 February 2017, the Ferguson Group provided Swan Transit with a series of questions on notice and proposed that bargaining be suspended for two weeks in order for Swan Transit to respond to the questions. Swan Transit declined to suspend bargaining and, at the next meeting convened on 24 February 2017, tendered a draft agreement. Mr Ferguson asserts that he and the other Bargaining Representatives in the Ferguson Group were unable to adequately respond to this draft agreement because Swan Transit had failed to provide the information requested on 20 February 2017. Mr Ferguson also complains that Swan Transit ignored his request for the ballot to be conducted by the Australian Electoral Commission. Mr Ferguson asserts that this conduct breaches section 228(1)(a) and (b) of the FW Act. 23

[54] I note that the grounds for the Second Application, as set out in Schedule A of the Second Application, assert breaches of the good faith bargaining requirements set out in section 228(1)(a) and (b) of the FW Act only. The Submissions filed by Mr Ferguson assert breaches of sections 228(1)(a) - (f) of the FW Act 24, however only the alleged breaches of section 228(a), (b) and (e) are particularised.25 Leave was not granted for the Second Application to be amended to extend the grounds for the Second Application. To the extent that Mr Ferguson can rely on additional grounds, I have considered these and the alleged breaches of section 228(1)(a) and (b) of the FW Act below.

[55] In his Outline of Submissions, Mr Ferguson makes various statements about what occurred at a number of bargaining meetings, a majority of which he did not attend. These statements are referenced to, what appears to be, the page numbers of the minutes of particular bargaining meetings. Although Mr Ferguson does not expressly do so, it would appear that some of these statements are intended to assert breaches of good faith bargaining requirements contained in section 228 of the FW Act other than in 228(a), (b) and (e).

[56] Mr Ferguson did not tender any written or oral documentary or witness evidence, either prior to the Hearing (as instructed in the Directions) or at the Hearing, as to the factual accuracy of the statements contained in his Outline of Submission and/or the express or implied assertion that Swan Transit and/or the TWU breached section 228(1) of the FW Act, with the exception of section 228(1)(e) of the FW Act.

[57] The written and oral witness evidence of Mr Ferguson’s two witnesses, Mr Parker and Mr Fawkes, deals only with the events surrounding disciplinary action which was taken against them and upon which Mr Ferguson relies in support of his allegation that Swan Transit has engaged in unfair and capricious conduct in breach of section 228(1)(e) of the FW Act.

[58] Swan Transit tendered copies of the minutes of the bargaining meetings as an attachment to Mr Thompson’s witness statement.

[59] As a matter of caution, I have dealt below with the additional breaches of section 228 alleged by Mr Ferguson to the extent I am able to based on the evidence available to me tendered by Swan Transit or given orally at the Hearing.

Attending and participating in meetings at reasonable times – section 228(1)(a)

[60] In his Outline of Submissions at paragraph [23], Mr Ferguson makes a number of assertions about what constitutes attending and participating in meetings at reasonable times for the purposes of section 228(1(a) without identifying any authority for his assertions. 26

[61] In summary, Mr Ferguson asserts that the scheduling of meetings has been unilaterally determined by Swan Transit and that the schedule imposed by Swan Transit has prevented bargaining agents having sufficient time to properly prepare for meetings. Mr Ferguson submits that this constitutes a breach of section 228(1)(a) of the FW Act. 27

[62] Swan Transit submitted that the process for determining meeting dates was that meeting dates were proposed by Swan Transit and determined by consensus.

[63] Mr Ferguson did not tender any evidence in support of his assertion. The written and oral evidence of his two witnesses, Mr Parker and Mr Fawkes, deals with the events surrounding the disciplinary action which was taken against them and upon which Mr Ferguson relies in support of his allegation that Swan Transit has engaged in unfair and capricious conduct.

[64] Although he did not tender any evidence in support of his assertion that Swan Transit breached section 228(1)(a) of the FW Act, in his Outline of Submissions Mr Ferguson claimed that the Minutes of the 6 May 2016, 23 June 2016 and 29 November 2016 indicate that bargaining representatives had complained about having inadequate time to consider a proposed draft of the New Agreement.

[65] Mr Ferguson did not tender a copy of any minutes of meetings. However, a copy of the minutes was filed by Swan Transit as an annexure to Mr Thompson’s witness statement. The minutes for the bargaining meeting held on 6 May 2016 record that Mr Fawkes, Mr Griffin and Mr Sturgess had indeed complained that three days was not sufficient time for them to review a version of the draft agreement which was the subject of discussion at the bargaining meeting. 28

[66] The minutes for the 6 May 2016 meeting also reveal that:

    • having voiced their concerns, there was ‘consensus’ among the bargaining representatives to nevertheless continue with the bargaining meeting; 29

• the bargaining representatives were sufficiently familiar with the issues in contention that they were able to debate in detail individual provisions of the draft agreement;  30

• the meeting was sufficiently long for detailed consideration and debate of the individual clauses in contention to occur; 31

• Swan Transit agreed to an additional meeting before the Agreement was put to the vote to ensure the bargaining representatives had sufficient time to consider and debate any clauses still in dispute; and 32

    • Swan Transit agreed to ensure cover was arranged for all the bargaining representatives who were Drivers in the upcoming week to allow them to read the next draft of the agreement and discuss it with their colleagues. 33

[67] The minutes of the meeting of 23 June 2016 reveal that Mr Sturgess complained about the period of time between meetings. The minutes also reveal that Mr Thompson advised that timelines for meetings would be developed collaboratively. 34 Mr Ferguson did not put to Mr Thompson in cross examination that this did not in fact occur or tender any evidence that this did not occur.

[68] The minutes of the meeting of 29 November 2016 reveal only that Mr Sturgess expressed a concern as to whether there was an adequate period of time between the bargaining meeting and a proposed ballot, and that Mr Thompson held a different view about the adequacy of the time. There is no record that any other bargaining representative shared the view of Mr Sturgess. Mr Sturgess represents himself and one other Driver. Mr Ferguson did not put to Mr Thompson in cross examination that the time was unreasonable or inconsistent with good faith bargaining. Mr Ferguson did not lead any evidence or identify any authorities to support his assertion that the time frame was inappropriate in the circumstances.

[69] The meetings of 6 May 2016, 23 June 2016 and 29 November 2016 were three of a total of 24 bargaining meetings held. Mr Ferguson did not tender any evidence of concerns by the bargaining representatives in relation to the timing of any other bargaining meetings.

[70] Mr Ferguson did not tender any evidence that the timing of meetings were unilaterally determined by Swan Transit.

[71] In the absence of any evidence that the timing of the meetings prevented bargaining agents from being able to fully participate in bargaining, I am not satisfied that Swan Transit has breached section 228(1)(a) of the FW Act as asserted by Mr Ferguson.

Disclosing relevant information in a timely manner – section 228(1)(b)

[72] In his Outline of Submissions at paragraph [24], Mr Ferguson makes a number of assertions about what constitutes disclosing relevant information in a timely manner for the purposes of section 228(1)(b) of the FW Act without identifying any authority for his assertions. 35

[73] In his Outline of Submissions, Mr Ferguson asserts that Swan Transit made information available ‘in a single meeting or two’ before the ballot and in doing so failed to disclose relevant information in a timely manner in breach of section 228(1)(b) of the FW Act. 36

[74] Mr Ferguson was not appointed a bargaining representative until after the 19th bargaining meeting. The bargaining representatives were considerably advanced in their bargaining when Mr Ferguson was appointed. In fact, a draft agreement had already been put to the vote on two prior occasions.

[75] Mr Ferguson asserts that Swan Transit breached the good faith bargaining provisions by proposing, at the 24 February 2017 bargaining meeting, a resolution that the proposed New Agreement be put to a third ballot without first responding to four questions posed by Mr Ferguson at the previous meeting held on 20 February 2017. 37 The minutes of the 24 February 2017 meeting reveal that the option of putting the agreement to the ballot was put to all the bargaining representatives and, with the exception of the Fergusons Group, no objections were raised.38

[76] I am not satisfied that a failure to respond to the questions posed by Mr Ferguson, who represented a small number of Drivers, prior to putting a resolution to the bargaining representatives to conduct a further ballot constituted a breach of the good faith bargaining requirements. The bargaining representatives had the opportunity to indicate that they objected to the proposed New Agreement being balloted. However, a majority of the bargaining representatives supported the proposal that a ballot occur.

[77] On 2 March 2017, Swan Transit provided responses to each of the questions posed by Mr Ferguson. The information was therefore available to Mr Ferguson to discuss with those he represented well in advance of the ballot. 39

[78] There is no absolute requirement for the agreement of bargaining agents prior to the conduct of a ballot. 40 I am not satisfied that putting an agreement to ballot, when doing so is opposed by a minority of bargaining representatives who represent a small minority of the workforce, constitutes conduct in breach of the good faith bargaining requirements.

[79] Elsewhere in his Outline of Submissions, Mr Ferguson also asserts that Swan Transit conceded that it had failed to provide information related to its costings at the 23 June 2016 bargaining meeting. 41 Mr Ferguson did not tender any evidence documentary or witness in support of this assertion. A review of the relevant meeting minutes tendered by Swan Transit reveals that Swan Transit had conceded that it had not provided a comparison of ‘shifts between Swan and Path/Transdev’ but that it had ‘commenced collating the data and would aim to provide the information before the next meeting’.42 This information was provided and discussed in detail at the next bargaining meeting held on 28 July 2016.43

[80] Elsewhere in his Outline of Submissions, Mr Ferguson asserts that Swan Transit declined to provide information on the grounds that it was commercially sensitive at the meeting of 28 July 2016. Mr Ferguson did not tender any evidence documentary or witness in support of this assertion. The paragraph of the minutes to which Mr Ferguson refers indicates that the Swan Transit representative did not refuse to provide the information. Instead, the representative advised that he did not have the information in front of him and did not want to guess, and undertook to subsequently provide the information. 44

[81] Elsewhere in his Outline of Submissions, Mr Ferguson also asserts that Swan Transit acknowledged, at the meeting of 28 July 2016, that there were some errors in some financial modelling it had provided to the bargaining representatives. Mr Ferguson did not tender any evidence documentary or witness in support of this assertion. The minutes of the relevant meeting reveal that Swan Transit acknowledged the errors and provided the bargaining representatives with an updated model. 45 Financial modelling is often fraught with difficulties where there are different variables taken into account. The fact that Swan Transit were prepared to review the modelling it had undertaken and produce new modelling would appear to me to be indicative of good faith bargaining, not contrary to it.

[82] In conclusion I am not satisfied that Swan Transit or the TWU breached the good faith bargaining requirements contained in section 228(1)(b) of the FW Act.

Capricious or unfair conduct undermining freedom of association or collective bargaining – section 228(1)(e)

[83] In his Outline of Submissions at paragraph [25], Mr Ferguson makes a number of assertions about what constitutes capricious and unfair conduct undermining freedom of association or collective bargaining for the purposes of section 228(1)(e) of the FW Act without identifying any authority for his assertions. 46

[84] Mr Ferguson asserts that Swan Transit engaged in unfair and capricious conduct that undermines freedom of association or collective bargaining. A number of allegations made by Mr Ferguson in this regard go well beyond the scope of section 228 of the FW Act. For example he refers to:

    “A failure to work with the Australia community to give effect and force to the Objects of the Fair Work Act 2009 considered by the Australian parliament as a measure strengthening democracy within our Nation.” 47

[85] Section 228 imposes obligations on bargaining agents vis-a-vis each other and vis-a-vis employees. It does not impose any obligation on a bargaining agent vis-a-vis the broader community.

[86] Mr Ferguson also alleges that Swan Transit’s removal of notices and disciplining of employees constituted capricious conduct in breach of section 228(1)(e) of the FW Act. 48

[87] In support of his assertion that Swan Transit had disciplined employees in circumstances which constituted a breach of section 228(1)(e) of the FW Act, Mr Ferguson led evidence of the disciplining of two employees: Mr Parker and Mr Fawkes.

[88] Mr Parker was given a written warning after parking his vehicle inside the Beckenham Depot on 25 January 2017 and displaying in its tray, without approval, a series of noticeboards which included TransportEdge pamphlets. 49

[89] Mr Fawkes was issued with a final written warning in relation to a series of events which originated with him attending the workplace when he was not rostered to work and distributing materials to Drivers promoting TransportEdge. Mr Fawkes had previously been instructed on several occasions not to attend the workplace when he was not rostered to work and not to distribute materials promoting TransportEdge at the worksite without approval. 50

[90] Contrary to these instructions, Mr Fawkes continued, without prior approval, to attend the worksite when not rostered for work and distribute TransportEdge materials at the worksite. 51 On 16 December 2016, Mr Fawkes was issued with written notice directing him not to distribute TransportEdge materials without prior approval.52

[91] On 6 January 2017, Mr Fawkes remained at the worksite without approval after completing his shift to distribute TransportEdge materials. Mr Fawkes was approached by Mr Murray, who asked Mr Fawkes to comply with the previous directions that he not be present at the worksite when not rostered to work and/or distribute materials without approval. Mr Murray informed Mr Fawkes that, if he did not cease distributing materials, he would be issued with a Show Cause Notice. Mr Fawkes declined to give such an undertaking and was instructed to leave the worksite. 53

[92] On 9 January 2017, Mr Murray informed Mr Fawkes that he was required to attend a meeting with Mr Murray on 10 January 2017 to discuss the events on 6 January 2017. Later the same day, Mr Fawkes advised Mr Murray by email that he refused to attend the meeting because the events were now the subject of a Federal Court application. 54

[93] On 10 January 2017, Mr Fawkes again attended the Beckenham Depot when not rostered to work with the intention of speaking to Drivers and distributing TransportEdge materials. Mr Murray asked Mr Fawkes if he intended to attend the meeting he had been directed to attend and Mr Fawkes informed Mr Murray that he had advised Mr Murray by email that he would not attend. Mr Murray again informed Mr Fawkes that he was required to attend the meeting. Mr Fawkes indicated to Mr Murray that he would not make any comment if the meeting proceeded and that he intended to record the meeting. Mr Murray informed Mr Fawkes that he did not consent to the meeting being recorded and that Mr Fawkes would be stood down until a hearing scheduled for 12 January 2017. Mr Fawkes then departed the Depot.  55

[94] On 10 January 2017, Mr Murray issued Mr Fawkes with a disciplinary letter regarding the events on 6 January 2017 and his subsequent refusal to meet with Mr Murray to discuss the matter. Mr Fawkes was stood down pending a disciplinary meeting scheduled for 12 January 2017. On 12 January 2017, Mr Fawkes attended a disciplinary meeting with Mr Murray and the following day was issued with a Final Written Warning. 56

[95] A search of the Registered Organisation List of the FWC does not list TransportEdge as a registered organisation. TransportEdge is therefore not an organisation capable of having officers granted entry permits for the purposes of the right of entry provisions of the FW Act. TransportEdge therefore does not enjoy the privileges granted to organisations under the right of entry provisions of the FW Act, such as the modification of the common law which allows representatives of employee organisations rights of entry onto the premises of employers to hold discussions and distribute materials in circumstances which would otherwise constitute trespass.

[96] Swan Transit is entitled to issue lawful and reasonable directions to its employees and impose disciplinary consequences on employees who refuse to comply with those directions. Mr Murray gave evidence that the removal of non-authorised materials applies to all non-authorised material and not just the materials posted or distributed on behalf of TransportEdge. 57 Participating in industrial activities does not entitle employees to a ‘get out of jail free card’ to do what they want, when they want, and where they want in an unfettered way. Mr Fawkes was disciplined for refusing to attend a meeting as directed, not because of any conduct which Mr Ferguson sought to characterise as industrial activity. Mr Parker was disciplined for failing to comply with a company directive which prohibited the posting of materials in the worksite without prior approval. I am not satisfied on the evidence before me that Swan Transit’s handling of the incidents involving Mr Fawkes or Mr Parker breached the good faith bargaining requirements.

[97] In support of his assertion that Swan Transit acted capriciously or unfairly in a manner which undermines freedom of association or collective bargaining, Mr Ferguson also relies on the minutes of the bargaining meetings held on 23 June 2016 58 and 29 November 201659 when the bargaining representatives discussed Swan Transit’s removal of notices from company notice boards. The minutes of the 23 June 2016 meeting reveal that Mr Thompson informed the bargaining representatives that:60

    • Neither the TWU or delegates had any legal right to post notices on the company notice board.

    • A number of posters had been posted or distributed which contained content which was derogatory and/or untruthful and/or unbalanced. Interestingly, Mr Ferguson demanded (on threat of legal action) the removal of TWU material on Swan Transit worksites which Mr Ferguson alleged contained defamatory content about TransportEdge and himself. 61

    • Swan Transit would allow the posting of notices provided that Swan Transit were notified of the poster before it was posted and the content was not derogatory. Mr Griffin attested to the fact that he had observed this procedure, and two posters which he wished to post were posted and not removed.

[98] Mr Thompson repeated this position at the 29 November 2016 meeting.

[99] I am not satisfied that Swan Transit removed the notices in question with the intention of undermining freedom of association or collective bargaining or that their conduct did in fact do so. Instead, it appears that Swan Transit was merely enforcing its directives in relation to the posting of materials. Given that material had been published which was derogatory and inflammatory (on Mr Ferguson’s own admission) this would appear to be a reasonable and sensible course of action to avoid further damage to the capacity of the bargaining representatives to bargain effectively. Mr Griffin’s evidence that he was able to post materials having complied with the company directive for doing so is consistent with the finding that Swan Transit was intent on compliance with its directives, and did not have an ulterior desire to undermine freedom of association or collective bargaining.

[100] In support of his assertion that Swan Transit acted capriciously or unfairly in a manner which undermines freedom of association or collective bargaining, Mr Ferguson also referred to an allegation by Mr Jason Walters recorded in the minutes of the 23 June 2016 bargaining meeting. Mr Walters reportedly claimed that a Depot Manager entered the lunchroom to consume food and beverages on two occasions when the TWU were holding discussions with Drivers. There is nothing to provide any context as to whether this was inappropriate in the circumstances. Mr Ferguson did not call any evidence in relation to this incident nor question any witness in relation to it. I am therefore unable to determine whether or not the conduct occurred, and whether or not it was in breach of the good faith bargaining requirements. 62

[101] At the hearing, Mr Ferguson also asserted that Swan Transit engaged in capricious and unfair conduct undermining freedom of association or collective bargaining during an incident involving Mr Fawkes at the Beckenham Depot sometime prior to 26 June 2016, when Mr Fawkes was requested to leave the workplace. Mr Thompson gave evidence that Mr Fawkes was asked to leave the workplace because he was not rostered to work and was continually interrupting Mr Thompson, who was endeavouring to provide a briefing to the workforce. Mr Thompson also gave evidence that Swan Transit had given the bargaining representatives paid time off to speak to the Drivers, and Swan Transit had not interrupted or interjected when the TWU or other bargaining representatives were presenting their views about the agreement to the Drivers. Mr Thompson also explained how procedures had subsequently been put in place to avoid such a confrontation occurring again. There is no evidence before me to satisfy me that Swan Transit’s handling of the situation breached the good faith bargaining requirements. 63

[102] In support of his assertion that Swan Transit engaged in capricious and unfair conduct undermining freedom of association or collective bargaining contrary to section 228(1)(e) of the FW Act, Mr Ferguson also alleges that Swan Transit have restricted Drivers rights to belong or not belong to an industrial organisation and freely choose their bargaining representative. Mr Ferguson did not provide particulars of these allegations or lead evidence in support of these assertions.

[103] As TransportEdge is an association incorporated under the Associations Incorporation Act 2015 (WA) 64 rather than a Pty Ltd company, Swan Transit initially refused to recognise appointments of TransportEdge as a bargaining representative. Mr Ferguson disputed the legal basis of Swan Transit’s position and was invited by Swan Transit to provide authority for his view. He failed to do so. Twelve of the Drivers then ‘revoked’ their appointment of TransportEdge, and appointed Mr Ferguson their bargaining representative. Swan Transit recognised each of these appointments. There is no evidence before me that Swan Transit refused to recognise any appointments of bargaining representatives which it had grounds for believing complied with the requirements of the FW Act.65

[104] In conclusion, I am not satisfied that Swan Transit or the TWU breached the good faith bargaining requirements contained in section 228(1)(e) of the FW Act.

Other alleged breaches of section 288

[105] In his Outline of Submissions, Mr Ferguson makes various statements about what occurred at a number of bargaining meetings, a majority of which he did not attend. These statements are referenced to page numbers of the minutes of particular bargaining meetings. Although Mr Ferguson does not expressly do so, it would appear that some of these statements are intended to assert breaches of unspecified good faith bargaining requirements contained in section 228 of the FW Act. I have dealt with these assertions below.

[106] In his Outline of Submissions, Mr Ferguson asserts that Swan Transit failed to provide minutes of the previous meeting at the 6 May 2016 meeting 66 and the 13 Febuary 201767 meeting without asserting which, if any, of the good faith bargaining requirements this breaches. The minutes of the 6 May 2016 meeting reveal that Mr Fawkes and Mr Sturgess objected to the meeting commencing without the provision of a copy of the previous meeting minutes.

[107] The minutes for the 6 May 2016 meeting also reveal that:

    • Mr Thompson apologised for the delay and provided a reasonable explanation for the delay; 68

• having voiced their concerns, there was ‘consensus’ among the bargaining representatives to nevertheless continue with the bargaining meeting; 69

• the bargaining representatives were sufficiently familiar with the issues in contention that they were able to debate in detail individual provisions of the draft agreement; 70

    • Swan Transit agreed to an additional meeting before the Agreement was put to the vote to ensure the bargaining representatives had sufficient time to consider and debate any clauses still in dispute; and 71

    • Swan Transit agreed to ensure cover was arranged for all the bargaining representatives who were Drivers in the upcoming week to allow them to read the next draft of the agreement and discuss it with their colleagues. 72

[108] The minutes for the 13 February 2016 meeting do not record whether or not the previous meeting minutes had been provided to the bargaining representatives prior to the commencement of the meeting.

[109] The meetings of 6 May 2016 and 13 February 2017 were two of a total of 24 bargaining meetings held. Mr Ferguson did not identify any other meetings at which the bargaining representatives expressed concern about a failure to provide the minutes of the previous meeting. There is no evidence to suggest that the bargaining representatives were prevented from making their own records of meetings to ensure that that bargaining wasn’t compromised due to any lack of timeliness in the provision of the formal minutes of meeting.

[110] Elsewhere in his Outline of Submissions, Mr Ferguson notes that he objected at the 20 February 2017 meeting to the conduct of the ballot electronically without identifying how Swan Transit’s decision to proceed with electronic balloting constituted a breach of the good faith bargaining requirements. The question of the use of an electronic ballot had been discussed at bargaining meetings held prior to Mr Ferguson’s appointment as a bargaining representative, and the method was successfully employed in ballots conducted prior to Mr Ferguson’s appointment. 73 The meeting minutes for the 20 February 2017 meeting reveal that Mr Thompson indicated that he was unaware of any issues with the voting method in prior ballots and invited Mr Ferguson to provide evidence of such complaints. Mr Ferguson did not make any submissions or lead any evidence in support of his assertion that electronic balloting was inappropriate in the circumstances or that the use of it was contrary to the good faith bargaining requirements. The TWU submitted in its Outline of Submissions that its view is that the proposed voting method:

    “…is accurate, fair and reasonable. Other employers have used a similar voting system for enterprise agreements and neither the Union, nor its members, have experienced problems with this voting system.” 74

[111] Mr Ferguson also asserts that the bargaining representatives had, at the 23 June 2016 meeting, sought to progress negotiations in an orderly way, impliedly suggesting that Swan Transit had resisted this. A review of the minutes of that meeting reveals that Swan Transit welcomed the suggestion  75 and suggested working together to devise an agreed timetable.76

[112] Elsewhere in his Outline of Submissions, Mr Ferguson asserts that bargaining representatives had complained at the 18 August 2016 bargaining meeting about the accuracy of the previous meeting minutes without asserting which, if any, of the good faith bargaining requirements this breaches. 77

[113] The minutes of the 18 August 2016 meeting reveal that Mr Sturgess had requested the recording of the previous meeting to check the accuracy of the minutes for that meeting. 78

[114] The minutes for the meeting also reveal that Mr Thompson invited Mr Sturgess on multiple occasions to identify what aspects of the meeting minutes he believed were inaccurate. Mr Sturgess declined to do so.  79 There is no statutory obligation to make a recording of bargaining meetings, although I note that Swan Transit elected to do so to ensure greater transparency. The parties are entitled to keep their own notes of the meetings and need not rely on the formal minutes of meetings in order to prepare and partake in bargaining. In my view, Mr Thompson appropriately responded to Mr Sturgess by inviting him to formally note any concerns he had about the accuracy of the previous meeting minutes. There is nothing evident in the exchange recorded in the meeting minutes of 18 August 2016, referred to by Mr Ferguson, that evidences any breach of the good faith bargaining requirements set out in section 228 of the FW Act.

[115] Elsewhere in his Outline of Submissions, Mr Ferguson asserts that Swan Transit acknowledged in the meeting minutes at the 21 December 2016 meeting that it had shut down the opportunity for bargaining representatives to present information without asserting which, if any, of the good faith bargaining requirements this breaches. 80 The minutes of the 21 December 2016 meeting reveal that Mr John van der Hock commented that the previous meeting minutes did not record that the Chairman had shut down his opportunity to present certain information. The minutes also reveal that Mr Thompson indicated that he did not shut down Mr van der Hock’s opportunity to present the information, but rather sought to calm a discussion which had become hostile.81 The allegation that Mr Thompson had acted improperly was never put by Mr Ferguson to Mr Thompson in the witness box. Mr Ferguson did not tender any evidence to suggest that Mr Thompson did not act other than appropriately as a Chairman managing appropriate discourse in a meeting.

[116] Elsewhere in his Outline of Submissions, Mr Ferguson asserts that, at the 10 February 2017 meeting, Swan Transit declined to replace Mr Thompson (who had chaired the previous 20 meetings) with Mr Sturgess, without indicating which, if any, of the good faith bargaining requirements this refusal breached. The minutes of the 10 February 2017 meeting reveal that:

    • Mr Sturgess had not been approached to be Chairman.

    • The TWU did not object to Mr Thompson remaining Chairman.

    • Replacement of the Chairman was not an agenda item.

    • Mr Thompson invited Mr Ferguson to make an application to the FWC for an order to directing that he be replaced as Chairman.

[117] The allegation that Mr Thompson refused to stand down as Chairman, and that this constituted a breach of the good faith bargaining requirements, was not put by Mr Ferguson to Mr Thompson in cross examination. Mr Ferguson did not lead any evidence as to how this refusal, in the circumstances in which it occurred, constituted a breach of the good faith bargaining requirements.

[118] Elsewhere in his Outline of Submissions, Mr Ferguson asserts that, at the 10 February 2017 meeting, Swan Transit shut down debate on OHS and bullying issues. 82 Mr Ferguson did not identify how these issues related to the bargaining or which, if any, of the good faith bargaining requirements this alleged conduct breached. The minutes of the 10 February 2017 meeting do not reveal whether these issues were relevant to the negotiations or not, and merely indicate that they were not discussed because they were not agenda items.83 The allegation that Mr Thompson blocked the debate of these issues, and that this constituted a breach of the good faith bargaining requirements, was not put by Mr Ferguson to Mr Thompson in cross examination. Mr Ferguson did not make any submissions as to how this conduct, in the circumstances in which it occurred, constituted a breach of the good faith bargaining requirements.

[119] Elsewhere in his Outline of Submissions, Mr Ferguson asserts that Swan Transit breached the good faith bargaining provisions by proposing, at the 24 February 2017 meeting, a resolution to put the agreement to the ballot without first responding to four questions posed by Mr Ferguson. 84 Mr Ferguson did not identify which, if any, of the good faith bargaining requirements this alleged conduct breached. The minutes of the 24 February 2017 meeting reveal that the option of the putting the agreement to the ballot was put to the bargaining representatives and, other than the Ferguson Group, no objections were raised.85

[120] The TWU, who are the default bargaining representative of the balance of the Drivers, approved the agreement going to vote at the 24 February 2017 meeting and filed submissions in these proceedings objecting to the orders sought by Mr Ferguson and supporting the ballot proceeding.

[121] There is no absolute requirement for the agreement of bargaining agents prior to the conduct of a ballot. 86

[122] I am not satisfied that putting an agreement to ballot, when doing so is opposed by a minority of bargaining representatives who represent a small minority of the workforce, constitutes conduct in breach of the good faith bargaining requirements.

[123] In conclusion, I have no doubt that the bargaining for the proposed New Agreement has been robust and, from time to time during the course of the negotiations, all the parties could have conducted themselves in a more professional manner.

[124] Mr Ferguson does not come with ‘clean hands’. For example, I note that the minutes of the 20 February 2017 meeting record that Mr Ferguson was requested by other bargaining representatives to cease raising his voice and to stop ‘name calling’. 87 I also note Swan Transit’s allegations that the Ferguson Group declined to provide information in support of their position that the current agreement should just be ‘rolled over’, and that they rejected proposals from other bargaining representatives immediately without giving consideration to those proposals or reasons for their response.88 I also note that Mr Ferguson provided an update of the bargaining position of the Ferguson Group less than one hour prior to the 23rd bargaining meeting.89

[125] A refusal of Swan Transit to concede to the requests of the Ferguson Group is not determinative of a failure to bargain in good faith.

[126] The evidence before me does not suggest that Swan Transit or the TWU is not genuinely engaged in the bargaining process.

[127] In conclusion, I am not satisfied that one or more of the bargaining representatives have not met, or are not meeting, the good faith bargaining requirements set out in section 228 of the FW Act.

Is it reasonable to make the requested order?

[128] In the event I am wrong, and one or more of the bargaining representatives have not met, or are not meeting, the good faith bargaining requirements set out in section 228 of the FW Act, section 230(1)(c) provides that I may only make a bargaining order if I am satisfied that it is reasonable in all the circumstances to make the order. 90

[129] This requirement requires me to consider the circumstances and history of the bargaining.

[130] The negotiations for the Agreement have extended for more than 12 months and have involved 24, often very lengthy, bargaining meetings. The meeting minutes reveal that the bargaining representatives have considered the clauses of the draft agreement in considerable detail.

[131] The evidence of Mr Griffin and Mr Denning (bargaining representatives not aligned with either the TWU or TransportEdge who, between them, represent the same number of Drivers as Mr Ferguson, and gave evidence at my invitation pursuant to my powers under section 590 of the FW Act) was that while the negotiations were robust, they did not feel that their opinions had not been heard. 91 Mr Sturgess, who represents one Driver, expressed a view to the contrary. However, even the most cursory review of the meeting minutes reveals that Mr Sturgess was a major contributor at every meeting and clearly was given significant opportunity to participate in bargaining.

[132] Having voted down two previous versions of the proposed new Agreement, the Drivers appear capable of determining for themselves whether a proposed Agreement is palatable to them.

[133] There is no absolute requirement for the agreement of bargaining agents prior to the conduct of a ballot. 92 Given that the majority of bargaining representatives have voted in favour of a ballot (including the TWU, who is the bargaining representative for the largest number of Drivers93) it is appropriate that the Drivers are given the opportunity to determine whether the latest iteration of the Proposed Agreement is palatable to them.

[134] The results of the subsequent ballot revealed that a sizeable majority of Drivers were comfortable that they had sufficient information to determine whether the agreement was appropriate, and were satisfied that it was.

[135] In light of the approval of the Proposed Agreement, it is not necessary for me to consider whether any of the other bargaining orders sought by Mr Ferguson should be granted.

DEPUTY PRESIDENT

Appearances:

Mr G Ferguson, for the Applicant.

Mr A Dzieciol, for the TWU.

Mr M Kent, for Swan Transit.

Hearing details:

2017.

Perth:

Tuesday, 7 March.

 1   Exhibit R1 at page 497 - 508

 2   Exhibit R1 at [3]-[5] and Respondents Outline of Submissions at [2.1]-[2.3]

 3   Exhibit R1 at [8] and Respondents Outline of Submissions [2.7]-[2.8]

 4   Respondents Outline of Submissions [2.13]

 5   Respondents Outline of Submissions [2.13]

 6   Exhibit R1 at [11]

 7   Respondents Outline of Submissions [2.19]

 8   Respondents Outline of Submissions [2.22]

 9   Exhibit R1 at page 335

 10   Exhibit R1 at page 592

 11   Exhibit R1 at page 593

 12   Exhibit R1 at page 594

 13   Exhibit R1 at page 591

 14   Exhibit R1 at page 497

 15   Exhibit R1 at page 588

 16   Exhibit R1 at page 589-590

 17   Respondents Outline of Submissions [3.9]

 18   Respondents Outline of Submissions [2.19]

 19   First Application Form F32 at Page 4

 20   First Application Form F32 at Schedule C

 21   Respondents Outline of Submissions [2.22]

 22   Respondents Outline of Submissions [3.11]

 23   Second Application Schedule A

 24   Exhibit A3 at [22]

 25   Exhibit A3 at [23]-[25]

 26   Exhibit A3 at [23]

 27   Exhibit A3 at [23]

 28   Exhibit R1 at Page 130-131

 29   Exhibit R1 at Page 133

 30   Exhibit R1 at Page 135 - 162

 31   Exhibit R1 at Page 135 - 162

 32   Exhibit R1 at Page 154

 33   Exhibit R1 at Page 162

 34   Exhibit R1 at page 196-197

 35   Exhibit A3 at [24]

 36   Exhibit A3 at [24]

 37   Exhibit A3 at [18]

 38   Exhibit R1 at page 335

 39   Respondents Outline of Submissions at [4.4.4]

 40   Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd (2010) 195 IR 58

 41   Exhibit A3 at [6]

 42   Exhibit R1 at page 191

 43   Exhibit R1 at page 206

 44   Exhibit R1 at 217

 45   Exhibit R1 at page [272]

 46   Exhibit A3 at [25]

 47   Exhibit A3 at [25]

 48   Exhibit A3 at [25]

 49   Exhibit A2 Exhibit R2 at [42]-[59]

 50   Exhibit R1 at [11]

 51   Exhibit R1 at [11]

 52   Exhibit R1 at page 672

 53   Exhibit A1 and Exhibit R1 at [22]-[24], Exhibit R2 at [7]-[15]

 54   Exhibit R2 at [15] – [21], Transcript at PN180

 55   Exhibit A1, Exhibit R2 at [22] – [34], Transcript PN259-PN261

 56   Exhibit R2 at [34]-[39], Transcript at PN281-PN284

 57   Transcript PN603

 58   Exhibit A3 at [6]

 59   Exhibit R1 at page 279

 60   Exhibit R at page 196

 61   Exhibit R1 at 492

 62   Exhibit R1 at page 190

 63   Transcript PN891-PN895, PN922-PN933

 64   Exhibit R1 at page 487

 65   Exhibit R1 at page 480-481, 483

 66   Exhibit A3 at [5]

 67   Exhibit A3 at [16]

 68   Exhibit R1 at page 129-130

 69   Exhibit R1 at Page 133

 70   Exhibit R1 at Page 135 - 162

 71   Exhibit R1 at Page 154

 72   Exhibit R1 at Page 162

 73   Exhibit R1 at Page 185-186

 74   Submissions of TWU at [12]

 75   Exhibit R1 at page 191

 76   Exhibit R1 at 197

 77   Exhbit A3 at [8]

 78   Exhibit R1 at page 220-221

 79   Exhibit R1 at page 220-221

 80   Exhbit A3 at [14]

 81   Exhibit R1 at page 283

 82   Exhibit A3 at [15]

 83   Exhbit R1 at page 315

 84   Exhibit A3 at [18]

 85   Exhibit R1 at page 335

 86   Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd (2010) 195 IR 58

 87   Exxhibit R1 at page 323

 88   Exhibit R1 at page 515

 89   Exhibit R1 at [11]

 90 Section 230(1)(c)

 91   Transcript PN969, PN995

 92   Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd (2010) 195 IR 58

 93   Submissions of TWU at [19]

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The Australian Workers' Union v Woodside Energy Limited [2012] FWA 4332
The Australian Workers' Union v Woodside Energy Limited [2012] FWA 4332