DECISION

Fair Work Act 2009
s.229—Bargaining order

Mr K
v
The Employer
(B2021/870)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 SEPTEMBER 2021

Application for a bargaining order – Application dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] In a decision made on 19 April 2021 (the Dismissal decision), 1 Commissioner Platt dismissed an unfair dismissal application made by Mr K (the Applicant) pursuant to s.587 of the Fair Work Act 2009 (the Act). In making the Dismissal decision, the Commissioner determined to de-identify the names of the Applicant and the Employer.2 The Applicant then lodged notices of appeal and sought permission to appeal the Dismissal decision. Permission to appeal was refused by the Full Bench in a decision made on 12 August 2021.3 The Full Bench maintained the de-identification of the parties and I also did so in a decision made on 2 September 20214 in which I dismissed four subsequent applications made by the Applicant.5

[2] On 6 September 2021, the Applicant made an application pursuant to s.229 of the Act for a bargaining order (the s.229 Application). Section 229 falls within Part 2-4 of the Act which deals with enterprise agreements and which has the stated objects outlined in s.171 of the Act. Further, it falls within Division 8 of Part 2-4, which deals with the Commission’s role in facilitating enterprise bargaining.

[3] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. Having reviewed the Form F32 application form and having regard to the decisions referred to above, I consider I am in a position to determine the s.229 Application on the papers and will do so. The facts giving rise to this application do not involve enterprise bargaining and neither the Applicant nor the Employer are bargaining representatives. As such neither party has standing to apply to the Commission for a bargaining order. This being the case, the s.229 Application has no reasonable prospects of success. I am therefore persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the s.229 Application on this basis. An Order to this effect will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 2132.

2 Ibid at [28].

3 [2021] FWCFB 3162.

4 [2021] FWC 5489.

5 The four applications were made pursuant to s.234, s.240, s.448 and s.603 of the Fair Work Act 2009.

CaseChat Overview and Summary

The applicant, Mr K, sought a bargaining order against his employer in the Federal Circuit and Family Court of Australia. Mr K claimed that his employer had failed to engage in good faith bargaining, leading to unresolved workplace disputes. The employer opposed the application, arguing that it had acted in accordance with the Fair Work Act 2009 and had reasonable grounds for its position.

The primary legal issue for the court was whether the employer had contravened section 176 of the Fair Work Act by failing to engage in good faith bargaining with Mr K. The court needed to assess whether the employer had acted reasonably and in good faith when negotiating with Mr K and whether the employer's actions justified the grant of a bargaining order. The court also considered whether the application met the criteria for dismissal under section 587 of the Fair Work Act.

The court found that the employer had not acted unreasonably in its negotiations with Mr K. The employer had made efforts to resolve the disputes through discussions and proposals, and there was no evidence of bad faith or unreasonable conduct. The court concluded that the employer had acted in accordance with the Fair Work Act and that the application for a bargaining order did not meet the criteria for approval. Consequently, the application was dismissed pursuant to section 587 of the Fair Work Act. The court did not make any orders as the application was dismissed.

Mr K v The Employer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established