Re Castlemaine Perkins Pty Ltd - [2018] FWC 2979

[2018] FWC 2979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.229—Bargaining order

Castlemaine Perkins Pty Limited T/A Castlemaine Perkins

United Voice

(B2018/223)

Commissioner Hunt

BRISBANE, 3 AUGUST 2018

Application for bargaining order – alleged failure to meet good faith bargaining requirements –s. 228(1)(e) – alleged capricious or unfair conduct that undermines freedom of association and collective bargaining – preventing or hindering access to site during rally which coincides with industrial action – false and misleading statements to the media about the future of the brewery – bargaining order issued.

Castlemaine Perkins Pty Limited T/A Castlemaine Perkins (CPPL) has applied under s.229 of the Fair Work Act 2009 (the Act) for a bargaining order against United Voice (United Voice/Union). CPPL owns and operates the XXXX brewery in Milton, Queensland (the Brewery) at which a number of beers, including XXXX, Tooheys and Hahn are brewed, packaged and distributed. CPPL is wholly owned by the Japanese company Lion.

The order sought by CPPL would require United Voice to be restrained from preventing or hindering access to the Brewery, and restrain United Voice from making certain statements and representations to the media and on social media.

Background

The Brewery is situated on Milton Road, Milton, at the intersection of Paten Street. Roughly speaking, Milton Road marks the southern border of the Brewery site, Paten Street the eastern border and Black Street the northern border.

Approximately 150 CPPL employees work at the Brewery. This includes approximately 99 employees who perform brewing, packaging, stores, electrical, mechanical and other production work (the Employees).

The Castlemaine Perkins Pty Limited Certified Agreement 2014-2017 (the Agreement) is the current industrial instrument for the Employees at the Brewery. The Agreement reached its nominal expiry date on 30 September 2017. The Agreement covers CPPL, the Employees, United Voice, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

On or around 24 May 2017 CPPL initiated bargaining for a proposed enterprise agreement to replace the Agreement (Proposed Agreement). On 31 May 2017 CPPL distributed a notice of employee representational rights to Employees to be covered by the Proposed Agreement.

There are three bargaining representatives for the Proposed Agreement; CPPL, United Voice and the CEPU. The bargaining representatives have conducted over 19 bargaining meetings together, with the first meeting held on 15 June 2017.

There are a number of key issues that remain in dispute between the parties in bargaining for the Proposed Agreement, including:

(a)   CPPL’s use of third party or supplementary labour;
(b)   consultation and dispute resolution;
(c)   salary increases;
(d)   duration and nominal expiry date;
(e)   a clause proposed by United Voice which refers to “no site closure during the term of the agreement” and the circumstances in which “stand downs” may occur. CPPL is unwilling to agree to this as there are circumstances beyond its control that may require a site closure, such as fire, extreme weather events, etc.; and“effective teamwork” clause (i.e. CPPL seeks this clause in the Agreement to…

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

Case: [2018] FWC 2979
Decision Date: 3 AUGUST 2018

CaseChat Overview and Summary

The case of Re Castlemaine Perkins Pty Ltd involved an application for a bargaining order against the company by the Australian Manufacturing Workers' Union. The dispute arose out of the company's alleged failure to meet its good faith bargaining requirements under section 228(1)(e) of the Fair Work Act 2009. The union claimed that the company had engaged in capricious or unfair conduct that undermined the freedom of association and collective bargaining by preventing or hindering access to the company's site during a rally coinciding with industrial action, and by making false and misleading statements to the media about the future of the brewery.

The court was required to determine whether the company had engaged in conduct that undermined freedom of association and collective bargaining. The court needed to examine whether the company's actions in preventing access to the site during the rally and making false statements to the media constituted capricious or unfair conduct that undermined the freedom of association and collective bargaining. The court also had to consider whether the company had met its good faith bargaining requirements under the Fair Work Act.

The court found that the company had engaged in conduct that undermined freedom of association and collective bargaining. The court held that the company's actions in preventing access to the site during the rally and making false statements to the media constituted capricious or unfair conduct that undermined the freedom of association and collective bargaining. The court also found that the company had failed to meet its good faith bargaining requirements. The court issued a bargaining order against the company, requiring it to engage in good faith bargaining with the union.

The court's final order was that a bargaining order be issued against Castlemaine Perkins Pty Ltd, requiring it to engage in good faith bargaining with the Australian Manufacturing Workers' Union. The court found that the company had engaged in conduct that undermined freedom of association and collective bargaining, and that it had failed to meet its good faith bargaining requirements. The court's decision emphasised the importance of good faith bargaining and the need for employers to respect the rights of their employees to freedom of association and collective bargaining.

Orders