Oliveri Transport Services Pty Ltd v Transport Workers' Union of Australia

[2013] FWC 2188

[2013] FWC 2188

FAIR WORK COMMISSION

DECISION

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

Oliveri Transport Services Pty Ltd
v
Transport Workers' Union of Australia
(B2013/66)

COMMISSIONER CAMBRIDGE SYDNEY, 11 APRIL 2013

Application by Oliveri Transport Services Pty Ltd for a bargaining Order.

[1] On 19 March 2013, Oliveri Transport Services Pty Ltd (the employer) made an application for a bargaining Order. The application was made pursuant to section 229 of the Fair Work Act 2009 (the Act). The application identified the respondent as the Transport Workers’ Union of Australia (the TWU).

[2] The application in this matter is connected with an application to suspend or terminate protected industrial action made under ss.424 and 425 of the Act and also made on 19 March 2013 by the employer (B2013/65). Both matters were the subject of initial proceedings before the Fair Work Commission (the Commission) on 21 March 2013, at which time the parties reached an agreement which has subsequently been identified to have settled some but not all matters relating to negotiations for an enterprise agreement.

[3] As a consequence of the ongoing dispute between the parties the employer sought to have the applications dealt with further by the Commission. The matters were listed for further proceedings before the Commission on 9 April 2013, at which time the following appearances were recorded:

Mr I MacDonald from the Australian Public Transport Industrial Association (APTIA) appeared for the employer; and

Mr M Gibian, barrister, together with Mr A Guy appeared for the TWU.

[4] The parties agreed to have the applications heard and determined in a Hearing which commenced on 9 April 2013 and required further Hearing on 10 April 2013. During the Hearing the employer called 2 witnesses who gave evidence in support of the applications. The TWU adduced evidence from 2 witnesses in opposition to the applications.

[5] A separate Decision [PR535569] and Order [PR535570] have been issued in respect to the related matter seeking an Order to suspend or terminate protected industrial action.

[6] In an amended application, the employer has sought bargaining Orders to require the TWU to refrain from capricious or unfair conduct and requiring that the TWU participate in regular enterprise bargaining meetings scheduled for at least once every two weeks for a period of up to eight weeks.

[7] The TWU opposed that aspect of the application that inferred that the TWU had not acted in accordance with the good faith bargaining requirements of the Act.

[8] The making of bargaining Orders is governed by the provisions of Subdivision A of Division 8 of Part 2-4 of the Act (ss. 228 - 233).

[9] Section 230 of the Act is entitled: When the FWC May Make a Bargaining Order and is in the following terms:

“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).”

[10] One important prerequisite to the making of a bargaining Order involves a finding that a bargaining representative has not met, or is not meeting the good faith bargaining requirements (subsection 230 (3)(a)(i)). Section 228 of the Act sets out the good faith bargaining requirements and reads as follows:

“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.”

[11] There has been no suggestion that multiple bargaining representatives have impeded or adversely impacted the bargaining process. Therefore for the employer’s application to succeed it has needed to establish that a bargaining representative, in this case the TWU, has not met, or is not meeting the good faith bargaining requirements.

[12] The alleged failure to meet the good faith bargaining requirements relates to the alleged conduct of the TWU particularly in respect to two bargaining meetings held on 27 March and 4 April 2013. In general terms, the employer has asserted that the position of the TWU in the bargaining has involved a failure to give genuine consideration to the proposals of the employer because the TWU has sought to have the employer agree to terms of an agreement which has been accepted by other employers in the industry and is described as “the Industry Agreement”. Further, the employer suggested that the conduct of the TWU, whereby it sought to insist upon terms contained in the Industry Agreement, represented capricious or unfair conduct.

[13] The evidence of the conduct of the parties throughout the bargaining and particularly during the meetings of 27 March and 4 April 2013, does not always reflect particularly well upon either the TWU or the employer and its representative. On balance, the bargaining can be described as robust and difficult with unfortunate conduct exhibited by both sides. In the circumstances, I am not convinced that any absence of good faith bargaining can be ascribed to the conduct of the TWU exclusively.

[14] Consequently, I am not disposed to make the specific Orders sought by the employer.

[15] In this instance, there was evidence that both the TWU and the employer each failed to give genuine consideration to the proposals of the other. This conduct can be properly construed to represent a breach of the good faith bargaining requirements of the Act. Consequently, the provisions of subsection 228 (1)(d) of the Act have been satisfied and a bargaining Order can therefore be made.

[16] In summary, the application for bargaining Orders has been made in accordance with section 229 of the Act. In particular, the timing of the application has satisfied the provisions of subsection 229 (3) of the Act.

[17] Further, the prerequisites for making an application as specified by subsections 229 (4) (a) (b) and (c) of the Act, have been met or, in the alternative, I am satisfied that any non-compliance with notice requirements should be permitted pursuant to subsection 229 (5) of the Act.

[18] I have considered the submissions and evidence provided by the Parties and I am satisfied that the requirements of s.230 of the Act have been met. In particular I am satisfied that it is reasonable in all the circumstances to make bargaining Orders. The Orders are issued separately [PR535572] and operate in accordance with s.232 of the Act.

COMMISSIONER

Appearances:

Mr I MacDonald from the Australian Public Transport Industrial Association (APTIA) appeared for the employer; and

Mr M Gibian, barrister, together with Mr A Guy appeared for the TWU.

Hearing details:

2013.

Sydney:

April, 9 & 10.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR535571>