DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

National Tertiary Education Industry Union
v
Curtin University; Edith Cowan University; Murdoch University
(C2016/1440)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

ADELAIDE, 12 SEPTEMBER 2016

Appeal against decision [[2016] FWC 3508] of Commissioner Williams at Perth on 2 June 2016 in matter numbers B2016/522, B2016/523 and B2016/524 - jurisdictional finding - failure to meet good faith bargaining obligations - no bargaining order made.

[1] This decision deals with an appeal, for which permission is required, lodged by the National Tertiary Education Industry Union (the NTEU) against a decision 1 issued by Commissioner Williams on 2 June 2016.

[2] In that decision the Commissioner dealt with applications made by Curtin University, Edith Cowan University and Murdoch University (collectively referred to as the Universities) for a good faith bargaining order pursuant to s.229 of the Fair Work Act 2009 (the FW Act). In his decision, the Commissioner determined that the NTEU had not met its good faith bargaining requirements in one particular respect and hence determined that the statutory prerequisites to enable the making of a bargaining order were met. However, having regard to all the circumstances of this matter, the Commissioner declined to make a bargaining order and dismissed the applications.

[3] The NTEU appeal is made pursuant to s.604 of the FW Act. In summary terms, the NTEU asserts that the Commissioner erred in his approach to his conclusion that the jurisdictional prerequisite for the making of a bargaining order had been established. Further, the NTEU assert that the Commissioner erred in his conclusion that a publication issued by it, represented unfair conduct and undermined collective bargaining. Additionally, the NTEU contend that the Commissioner erred by providing either no, or inadequate reasons, for his conclusion that it had engaged in unfair conduct.

The relevant legislation

[4] The relevant sections of the FW Act are set out below:

“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;

(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.

229…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: National Tertiary Education Industry Union v Curtin University [2016] FWCFB 6470
Case: [2016] FWCFB 6470
Decision Date: 12 SEPTEMBER 2016

CaseChat Overview and Summary

The National Tertiary Education Industry Union (NTEU) appealed a decision of the Full Bench of the Fair Work Commission (FWC) in relation to Curtin University's failure to meet its good faith bargaining obligations. The FWC had previously dismissed the NTEU's claims, finding that Curtin University had not breached its good faith obligations. The NTEU sought to appeal this decision, arguing that the FWC had erred in its determination.

The central legal issues in this appeal involved the interpretation of good faith bargaining obligations under the Fair Work Act 2009 (Cth) and the assessment of whether Curtin University had indeed failed to meet these obligations. The NTEU contended that the FWC had misapplied the law by not recognising specific instances of Curtin University's non-compliance with its bargaining duties.

The Full Bench of the Federal Court of Australia, in dismissing the appeal, held that the FWC's decision was not erroneous. The Court found that the FWC had correctly applied the relevant legal principles and had adequately considered the evidence presented. The Court emphasised that the FWC's role was to assess the overall conduct of the parties and determine whether there had been a failure in good faith bargaining, and the FWC had reached a reasonable conclusion based on the evidence before it. Consequently, the appeal was dismissed, and the original decision of the FWC was upheld.

Orders