National Union of Workers v Linfox Australia Pty Ltd

[2013] FWC 8428

[2013] FWC 8428

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Linfox Australia Pty Ltd
(B2013/1328)

COMMISSIONER ROE MELBOURNE, 25 OCTOBER 2013

Applications for bargaining orders.

[1] On 14 October 2013 the National Union of Workers (NUW) made an application for a bargaining Order. The application was made pursuant to S.229 of the Fair Work Act 2009 (the Act). The application named Linfox Australia Pty Ltd (Linfox or the Respondent) as the Respondent.

[2] At the hearing on 23 October 2013 I considered the submissions of the parties. Evidence was given by Mr Mathew Toner, NUW organiser, and by Ms Gaylynne Neill, General Manager Human Resources for Linfox. Some correspondence between the NUW and Linfox was also in evidence. Relevant provisions of the Act are at Attachment A to this decision. The Transport Workers Union (TWU) is also a bargaining representative for the proposed agreement.

[3] The Linfox Road Transport and Distribution Centres National Agreement 2011 (National Agreement) covers approximately 146 sites and close to 3000 workers. The National Agreement has a nominal expiry date of 31 December 2013. The TWU was the sole bargaining representative for employees in relation to the National Agreement and is covered by that Agreement. It is accepted that a large proportion of the employees covered by the National Agreement are members of the TWU. On 10 September 2013 Linfox issued a notice of representational rights seeking to bargain a new agreement with the same scope as the National Agreement. On 16 September 2013 the TWU served on Linfox a log of claims. Bargaining meetings have been held involving TWU and Linfox on 17 and 18 September 2013 and 15 and 16 October 2013. Further meetings are planned for 30 and 31 October 2013. Linfox provided the TWU with a written formal response to the TWU log of claims.

[4] One of the largest sites covered by the National Agreement is at Truganina in Victoria. It is a distribution site for Coles Supermarkets and there are approximately 700 employees at the site, approximately 500 of whom are permanent employees covered by the Agreement. There are approximately 260 day shift employees and most of these employees are members of the NUW. Mr Toner gave evidence that the NUW has 320 members at the Truganina site. Mr Toner believes, based on the advice of former TWU delegates, that the TWU has approximately 100 remaining members, mostly on the afternoon and the night shift. The night shift has only about a dozen permanent employees. Prior to August 2013 the NUW had only a small number of members at the site. Mr Toner gave evidence that the NUW has a small number of members at one other site.

[5] Mr Toner gave evidence that he met with representatives of Linfox on 26 September 2013 and Linfox advised that the NUW was not welcome at the national negotiation meetings. Ms Neill gave evidence that Linfox did not refuse to meet with the NUW and the TWU jointly but that the TWU had advised Linfox that it would not participate in joint negotiations with the NUW. Ms Neill gave evidence that Linfox would prefer joint negotiations but Linfox considered that this was impractical because of the position of the TWU. Having considered the evidence in the context of the agreed known facts I accept the evidence of Ms Neill.

[6] Linfox allowed the NUW to hold paid meetings of members to consider and endorse a log of claims which was then served on Linfox on 7 October 2013. Linfox and the NUW held a negotiation meeting on 18 October 2013. NUW undertook to provide responses to certain matters raised and Linfox undertook to respond to those matters prior to a further meeting which is scheduled for 1 November 2013. Linfox also wrote to the NUW on 4 October and 11 October 2013 acknowledging that the NUW has membership at the site and its rights as a representative including as a bargaining representative.

[7] One of the issues which is in contention between the NUW and Linfox is that NUW is seeking a separate agreement for the Truganina site which would involve the NUW and the TWU whereas it is Linfox’s desire to maintain a single national agreement. Linfox has accepted that the issue of scope is a matter for negotiation.

[8] Ms Neill gave evidence that there had been no substantive discussions with the TWU about the content of the replacement national agreement other than those referred to earlier. Ms Neill confirmed that following the two negotiation sessions held to date the TWU and Linfox had agreed upon a joint report back document. The two report back documents were circulated to local managers and TWU delegates and both management and the TWU have held report back meetings at the sites utilising the joint script. Ms Neill accepted that attendance at these meetings was not limited to TWU members given that the national agreement and its proposed replacement covers all employees. Ms Neill accepted that some reference to the claims raised by the TWU and to the response of Linfox was made in these communications.

[9] Linfox claim that the bargaining discussions with the TWU are confidential and this includes the TWU log of claims and the Linfox response to that log of claims. Linfox say that the TWU log is confidential because the TWU provided the document on this basis and this was acknowledged and accepted by Linfox. Linfox say that its response to the TWU log of claims is confidential because it has been provided to the TWU as part of negotiations that the TWU and Linfox have agreed are confidential.

[10] The NUW requested copies of these two documents and all other documents and correspondence relating to the negotiations. The NUW also sought “attendance of NUW officials and delegates representing NUW members at the Coles RDC at all future bargaining meetings relating to the renegotiation of the RTDC Agreement”. 1 The NUW gave notice that it considered that Linfox was not meeting its good faith bargaining requirements. In response Linfox denied it was breaching good faith bargaining requirements and continued to refuse to provide the requested documents on the grounds of confidentiality and did not directly respond to the request to attend all future bargaining meetings.

[11] The NUW sought good faith bargaining orders for the production of a wide range of documents. The NUW narrowed the scope of the documents sought partly in response to the sworn evidence of Ms Neill. The NUW also sought orders requiring Linfox to recognise the NUW as a bargaining representative, allow the NUW to participate in meetings concerning the national enterprise negotiations including meetings proposed with the TWU, and notify the NUW of proposed meeting times between Linfox and the TWU. The last of these matters was resolved by the provision of an undertaking by Linfox which was accepted by the NUW. The NUW did not press the other two matters.

[12] The Order which was pressed by the NUW was an order requiring Linfox to provide the NUW with copies of the following documents:

● Documents identifying and/or detailing the claims sought by the TWU in relation to the proposed agreement.
● Documents identifying and/or detailing any claims sought by Linfox in response to the claims sought by the TWU in relation to the proposed agreement.
● Documents for the purpose of joint communication concerning the negotiation of the proposed agreement developed to date by the TWU and Linfox and any such documents that are developed in the future.

Legislative requirements

[13] It is not in contention and I am satisfied that the NUW and the TWU are bargaining representatives for the proposed agreement (S.229(1)). The Application has been made after the nominal expiry date of the enterprise agreement. The Application meets the requirements of S.229(3).

[14] I am satisfied that the NUW has concerns that good faith bargaining requirements have not been met and S.229(4)(a) is therefore satisfied. The NUW has provided written notice setting out its concerns to Linfox. Linfox is the relevant bargaining representative as the concerns of the NUW relate to the actions of Linfox as a bargaining representative. The NUW provided Linfox with reasonable time within which to respond to these concerns and gave notice that an application for good faith bargaining orders may be sought. The NUW has advised the FWC and Linfox that it considers that Linfox has not responded adequately or appropriately to its concerns. I am satisfied that the NUW has satisfied the requirements of S.229(4)(b), (c) and (d).

[15] The requirements of S.230(1)(a) have been met. The requirements of S.230(2) have been met in that the Respondent has agreed to bargain and has initiated bargaining for an agreement. Linfox has issued a notice of representational rights to all employees including those who are represented by the NUW (S.203(2)(a)).

[16] The requirements of S.230 are met and an order may be made provided that I am satisfied that “one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements (S.230(3)(a)(i)), and that “it is reasonable in all the circumstances to make the order”. The NUW does not rely on S.230(3)(a)(ii); that is “the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement”. Any order I might make must be in accordance with the requirements of S.231.

[17] The NUW rely on only one of the good faith bargaining requirements to establish the alleged breach, the alleged failure of Linfox to meet the following requirement:

“disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner.”

[18] The following issues are in contention in this matter:

● The existence of a breach of good faith bargaining requirements; and
● The reasonableness of making an order in the circumstances; and
● The capacity to make the proposed order given their proposed content.

Consideration

[19] Linfox accept that the NUW has requested the TWU log of claims and the Linfox response; that Linfox has refused to provide these documents; that the NUW put Linfox on notice that it considered this to be a breach of good faith bargaining requirements; that Linfox had an opportunity to respond; and that the NUW considers that Linfox has not responded appropriately. However, Linfox submit that separate discussions are not necessarily a breach of the good faith bargaining requirements and that the documents have been treated by the TWU and Linfox as confidential and that they are confidential. Linfox argues that there can be no breach of good faith bargaining requirements and therefore there can be no order in circumstances where the relevant information sought is confidential. Linfox also argue that if there is a breach found I should not consider that it is reasonable to make the orders given the early stage of the negotiations.

[20] Linfox also submit that the joint briefing documents had not been specifically requested prior to the hearing of this matter and therefore it could not be said that they had not been provided in a timely manner. Linfox also pointed to the failure in such circumstances to provide the notice referred to in S.229(4)(b) and (c). The NUW argue that the joint briefing documents are covered by the generality of the matters covered in the original request made to Linfox and in the application including the request for the provision of “documents identifying and or detailing proposals of any kind that relate to the proposed agreement and that have been exchanged by Linfox and the TWU” and the request for the provision of any correspondence. I am satisfied that the documents are covered by the scope of the requests for documents which were made by the NUW. However, I accept that if I am wrong about this matter and the joint briefing documents are not covered by the scope of the earlier requests I could not find that there had been a failure to provide the documents in a timely manner

[21] The NUW submit that although there have only been a few meetings it is possible that a resolution could be reached shortly between the TWU and Linfox. The NUW submit that given that the NUW represent a minority of employees covered by the proposed national agreement they could be denied the opportunity to meaningfully participate in bargaining in such circumstances. The NUW argue that they cannot effectively participate in bargaining unless they know what the Linfox claims are. The NUW argue that as the Agreement will cover employees regardless of their union membership, employees are prejudiced if they are not aware of the claims being made by bargaining representatives. The NUW argue that the open joint communications to employees, including some who may not be members of the TWU, includes some information about the claims and the response to the claims and therefore the joint actions of Linfox and the TWU have breached the confidentiality. It is not reasonable to allow the TWU and Linfox to decide what they will tell employees about the claims. Employees need to be able to see the claims for themselves to be able to meaningfully participate in bargaining.

[22] In Australian Municipal, Administrative, Clerical Services Union v Aero- Care Flight Support Pty Ltd 2 Vice President Watson considered an application for an order for the production of rosters. One of the grounds upon which the order was resisted by the employer was that the information was of a confidential and commercially sensitive nature. Vice President Watson decided to order that certain information be provided because he considered that the conduct of the negotiations would be assisted and the relevant case for the making of an order had been made out. He decided:

“[12] If that information is regarded by Aero-Care as confidential, then I would require the ASU and the TWU to provide a confidentiality undertaking in line with the undertakings they have indicated they would provide to the Tribunal. I would also propose that the information, unless otherwise agreed by Aero-Care, would be provided to the Tribunal and would be available only for inspection at the premises of the Tribunal. I consider that it is also appropriate that on provision of that information the ASU and the TWU would have the ability to ask questions of clarification in relation to that material, and that the company should provide a response to any such questions within seven days of receiving those requests.” 3

[23] The fact that the information was regarded by the employer as confidential did not prevent the making of the order in this case.

[24] Linfox drew my attention to the decision of SDP Richards in a matter concerning AMIEU and Woolworths Limited. 4 This decision relates to an application for a scope order not to a good faith bargaining order. SDP Richards observed that in some circumstances it may be appropriate for bargaining representatives to meet other than in a composite manner. I accept that there may be situations where bargaining parties elect to meet about particular matters separately. The legislation specifically contemplates that problems may arise in situations where there are multiple bargaining representatives (S.30(3)(a)(ii)) and that in such circumstances orders may be made to promote the efficient and fair conduct of bargaining (S.231(1)(d)) and this might include an order excluding a bargaining representative for the agreement from bargaining.

[25] I agree with the NUW that the comments of Commissioner Whelan in NUW v Defries Industries Pty Ltd 5 are apposite:

“Section 228(1)(b) refers to disclosing relevant information in a timely manner. The reason for the disclosure of information is to allow the other bargaining representative(s) to give consideration to the bargaining representative’s position. In my view, the employer failed to provide relevant information on two occasions. First, prior to the meeting on 24 July 2009 Mr Poxon had prepared a document which included the company’s position on what matters in the NUW draft were ‘negotiable’ and what were ‘non-negotiable’. By failing to reveal the employer’s position, the NUW had no opportunity to consult its members on whether it should continue to pursue ‘non-negotiable’ matters or not or whether to narrow the agenda to the matters which were ‘negotiable.’” 6

[26] The NUW also referred to the decision of Commissioner Hampton in a matter involving Flinders Operating Services Pty Ltd T/A Alinta Energy. 7 In this case the employer was seeking good faith bargaining orders against particular unions. The employer alleged that the unions had breached the good faith bargaining requirements by failing to provide a log of claims to the employer despite the employer having requested such information. I agree with Commissioner Hampton’s comments that:

“[166] A log of claims in the sense as meant here is an outline of the bargaining outcomes as sought by the relevant party. A log may also be used by parties to state views about the intended focus of negotiations. There is no express obligation under the Act for parties to state bargaining positions, however such is a necessary and important part of the bargaining process.” 8

[27] Commissioner Hampton found that the failure to provide the log of claims was in the circumstances of that case a breach of the good faith bargaining requirements as established by S.228(1)(b) of the Act and he issued an order for the production of the document.

[28] In the Endeavour Coal matter 9 a Full Bench considered the making of orders for the production of relevant information:

“The Commissioner also found that the Company had not met the good faith bargaining requirements as it refused to supply APESMA with information which it was reasonable for the union to possess in order to adequately bargain with the Company (see.s228(1)(b)).

It is an important element of the bargaining process that parties provide a formal indication of the issues and proposals sought by them in relation to a proposed agreement. The failure to do so might be held to be contrary to the good faith bargaining requirements established by s.228(1)(b) of the Act. In the present case the Company has never put any proposals of its own as to the terms of an enterprise agreement which would be acceptable. The Commissioner took the view that this amounted to an unreasonable refusal by the Company to supply APESMA with information and was contrary to the requirements of s.228(1)(b). Although we have reservations as to whether the reference in s.228(1)(b) to the disclosure of relevant information is intended to cover the negotiating positions and agreement proposals of the parties, we recognise that it is a crucial part of the bargaining process that parties disclose such matters in the negotiations. The failure to do so may be found to be contrary to the good faith bargaining requirements in s.228(1) of the Act, and in particular the requirement to “bargain” (s.228(1)(f)) and to refrain from unfair conduct that undermines collective bargaining (s.228(1)(e)).” 10

[29] The Full Bench also decided not to make an order to produce some particular information in part because of the issue of commercial sensitivity. The Full Bench commented:

“In making a bargaining order under s.230, the power of FWA to order the disclosure of information is limited to information which is not “confidential or commercially sensitive” (s.228(1)(b)). What is confidential or commercially sensitive will involve a decision on a question of fact in each case where that quality is asserted. In this regard we recognise that considerable time and effort might have been expended by the Company upon the development of the salary structure and that an understanding of the overall operation of the structure might be limited to only a few senior employees within the Company. It is understandable that such information might be closely guarded by the Company and be considered confidential by it.” 11

[30] These cases reinforce my conclusion that it is a critical part of the bargaining process that parties disclose their bargaining proposals, including the responses to those proposals, to the other bargaining parties. This is an essential element of collective bargaining. Collective bargaining is a process. It is not a unilateral act by one party to present a proposal on a take it or leave it basis. The bargain is concluded by a collective decision of the employees who will be covered by the agreement. That decision is informed by the bargaining process. Those involved in that process have a right to bargain collectively. That right will often be undermined if bargaining representatives are denied the opportunity to meet with the employer as a composite group and/or if information about the proposals made by a bargaining party and/or the responses to those proposals is denied to other bargaining representatives.

[31] Parties may agree to meet separately from time to time during the bargaining process. Parties may from time to time make confidential proposals and or make confidential responses during the bargaining process. This will not breach the good faith bargaining process where it does not undermine collective bargaining or the requirement to bargain (S.228(1)(e) and (f)). However, it is hard to conceive of a circumstance where it would be consistent with good faith bargaining to refuse to provide all bargaining representatives with access to an initial log of claims or statement of outcome sought and the initial response to that log of claims which effectively sets out the alternative outcome sought.

[32] However, I need to consider the question of whether or not the claims could be confidential or commercially sensitive. As the Full Bench said what is confidential or commercially sensitive will involve a decision on a question of fact in each case where that quality is asserted.

[33] Context is relevant. What is confidential or commercially sensitive will often depend upon the nature of the information and the parties to whom it is to be divulged. In the context of collective bargaining it is unlikely that bargaining can proceed effectively and fairly if the initial claims made and the responses to them are confidential.

[34] A hypothetical scenario illustrates this point. Imagine there are two employee bargaining representatives or unions; one represents workers in a minority geographic or classification area. They both make a claim for a 6% pay rise. The employer responds to the claim on behalf of the workers in the minority area by saying that they will pay 5% but responds to the claim on behalf of the majority that they will only pay 3%. The responses are said to be confidential. If one of the unions elects to recommend acceptance of the offer made to them or if one of the unions decides to reject the offer and recommends protected industrial action in the absence of knowing what the offer made to the other union has been this could lead to unfair consequences.

[35] Agreements are made between the employer and the employees regardless of whether or not they are members of a union. Genuine agreement cannot be reached unless all employees who may be affected have access to relevant information about the position of bargaining representatives and the progress of negotiations. Linfox and the TWU have effectively acknowledged this by their decision to conduct report back meetings and to produce joint summary documents.

[36] It is conceivable that initial claims documents, particularly those from an employer, might contain information which is confidential or commercially sensitive. The employer might reasonably wish to restrict circulation of financial data, future business plans or private personal information. However, the possibility that the documents might contain such elements does not prevent a finding that the refusal to provide information about the bargaining positions is a breach of good faith bargaining. There are many ways in which confidential or commercially sensitive elements could be dealt with and reasonably protected.

[37] The scope and nature of confidential information which is protected in S.228(1)(b) must be considered in the context of the objects of the Act and S.3(e) and (f) and S.171 in particular. The duty of FWC to facilitate good faith bargaining and the making of agreements is not consistent with a narrow and pedantic reading of “confidential or commercially sensitive information.” A document in the context of bargaining is not confidential simply because a party or certain parties say that it is confidential. Regard has to be had for the nature of the document including its purpose and its content. The purpose of an initial log of claims is to set out the objective sought by a party in bargaining. By its very nature this is a document which must be available to the bargaining parties otherwise it cannot be properly used for its purpose which is to facilitate collective bargaining. It may be reasonable to put some conditions on the distribution or publication of the document or parts of it but it is not reasonable to impose a restriction which prevents other bargaining representatives from being aware of the essential nature of the claims being made and the response to them.

[38] I am satisfied that in the circumstances of this case the refusal to provide the NUW with information about the TWU initial bargaining position and Linfox’s response which is revealing of its initial bargaining position is a breach of good faith bargaining. In reaching this conclusion I take the same approach as was taken by the Full Bench in the Endeavour Coal case. That is, having made a finding that the failure to provide information was a breach of good faith bargaining it does not automatically follow that an order for that particular information in a particular form should be made. In considering whether or not to make an order I have to consider, amongst other things, protection of information which may be confidential or commercially sensitive.

Is it reasonable to make orders and if so what orders should be made?

[39] I consider that the breach of good faith bargaining in the circumstances of this case may turn out to be significant. The extent to which it is significant depends upon what happens next in the bargaining process. If it turns out that the process has some distance to go before it reaches a conclusion and if it turns out that agreement about the question of the scope of the agreement as it affects the Truganina site is resolved quickly then it may be of little consequence. However, there are a number of alternative scenarios where the consequences could be more significant. I consider that there is a real danger that the bargaining process will not proceed efficiently or fairly. This may not be due to the actions of Linfox but it may also be due to the actions of the TWU and or the NUW.

[40] Given these concerns I am satisfied that it is reasonable in all the circumstances to make an order to ensure that good faith bargaining requirements are met by bargaining representatives, to prevent action from being taken which might undermine collective bargaining and to promote the efficient and fair conduct of the bargaining.

[41] I consider it appropriate to issue an order that:

1. Linfox provide copies of the following documents to the NUW by 31 October 2013:

• Documents identifying and/or detailing the claims sought by the TWU in relation to the proposed agreement produced prior to the date of this Order; and



• Documents identifying and/or detailing any claims sought by Linfox in response to the claims sought by the TWU in relation to the proposed agreement produced prior to the date of this Order.

2. Linfox and/or the TWU are at liberty to apply prior to close of business on 29 October 2013 to vary the order to deal with any particular information in the documents about which there are reasonable confidentiality concerns.

[42] I have amended the order to exclude future documents. I consider it appropriate that the parties involved be encouraged to find their own solution to the appropriate bargaining process and to the scope questions. If they cannot find their own solutions there are remedies available under the Act and the FWC is available to assist the parties.

[43] I am not aware of any reason why the NUW should not have access to the joint communications for report back to employees which have been issued by the TWU and Linfox and may be issued by them in the future. However, I have decided not to make a decision as to whether or not it is appropriate to issue an order to that effect because I consider it appropriate to give Linfox an opportunity to seek to resolve this matter directly with the NUW. If the matter is not resolved the NUW are at liberty to seek to relist this matter.

[44] The Order is published separately and operates in accordance with S.232 of the Act.

COMMISSIONER

Appearances:

Mr D Mujkic appeared for the NUW.

Mr R West appeared for Linfox.

Hearing details:

2013

Melbourne

October 23

ATTACHMENT A

RELEVANT PROVISIONS OF THE LEGISLATION

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.

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 the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Multi-enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

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.

Non-compliance with notice requirements may be permitted

(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.

230 When 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).

231 What a bargaining order must specify

(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;
(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;
(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;
(d) such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

(2) The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:

(a) an order excluding a bargaining representative for the agreement from bargaining;
(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;
(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);
(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

(3) The regulations may:

(a) specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and
(b) provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.

 1   Exhibit NUW1.

 2   [2012] FWA 7214.

 3   [2012] FWA 7214, at para 12.

 4   [2009] FWA 849.

 5   [2009] FWA 88.

 6   [2009] FWA 88, at para 64.

 7   [2010] FWA 4821.

 8   [2010] FWA 4821, at para 66.

 9   Endeavour Coal Pty Ltd v APESMA[2012] FWAFB 1891.

 10   [2012] FWAFB 1891, at paras 34-35.

 11   [2012] FWAFB 1891, at para 64.

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