[2018] FWC 3952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

Tarek Soueid
(B2018/311)

COMMISSIONER GREGORY

MELBOURNE, 4 JULY 2018

Application for a bargaining order.

Introduction

[1] An application has been made for a bargaining order under s.229 of the Fair Work Act 2009 (Cth) (“the Act”) by Mr Tarek Soueid. The application arises as a consequence of negotiations taking place at Linfox Australia Pty Ltd (“Linfox”) for a new enterprise agreement to replace the existing Linfox Australia (Bulk Petroleum) Agreement 2014 1 (“the Agreement”). That Agreement has now passed its nominal expiry date of 30 June 2018.

[2] Mr Soueid has been nominated as an employee bargaining representative in the negotiations by four current Linfox employees. However, he claims Linfox is refusing to recognise his appointment, and seeks bargaining orders from the Commission in response.

[3] Linfox claims in response that Mr Soueid is not permitted to be a bargaining representative because of s.176(3) of the Act, and its view that he is acting on behalf of the National Union of Workers (“the NUW”), an organisation that Linfox says is not entitled to represent the industrial interests of the employees, given the work to be performed under the proposed Agreement.

[4] The application was originally set down for hearing on 15 May 2018. However, Linfox then sought for orders to be made for the production of documents. A decision in that matter was handed down on 17 May 2018. 2 The substantive application was then dealt with in a hearing on 22 May 2018. Mr J. Tierney of Counsel appeared on behalf of Mr Soueid. Mr J. Forbes of Counsel appeared on behalf of Linfox. Both were given permission to appear under s.596(2)(a) as the matter involves a degree of complexity and their involvement might enable it to be dealt with more efficiently.

The Relevant Legislation

[5] Section 228(1) of the Act sets out the good faith bargaining requirements that a bargaining representative for an enterprise agreement must meet. It also indicates in s.228(2) what they do not require. It states in full:

“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.” 3

[1] Section 229 then deals with the prerequisites that must exist before an application for a bargaining order can be made. The critical requirements are set out in sub section (4). It states in full:

“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.

Note: See also section 255A (limitations relating to greenfields agreements).

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

(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.” 4

[2] Section 230 continues to deal with the circumstances in which it is appropriate for the Commission to exercise the discretion to make a bargaining order. It states:

“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

Note: See also section 255A (limitations relating to greenfields agreements).

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;

(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).” 5

[3] Section 231 then deals with what must be specified in a bargaining order. It states:

“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.” 6

The Applicant’s Evidence and Submissions

Mr Tarek Soueid

[4] Mr Soueid states that on 13 April 2018 Linfox was given copies of Instruments of Appointment appointing himself and Mr Ryan Laws as bargaining representatives for four employees employed by Linfox as drivers at its bulk petroleum site in Altona. 7 (He also indicated that Mr Laws has since decided not to continue as a bargaining representative due to other commitments.) The Instruments of Appointment also contained a revocation of a previous appointment of Mr Peter Mitrov, who was a Linfox employee, but has since been dismissed, and has apparently decided it is no longer practicable for him to continue as a bargaining representative.

[5] On 17 April 2018 Mr Soueid was given copies of a letter Mr Darren Jones, Linfox’s General Manager Workplace Relations, had given to each of the four employees. 8 It challenged his appointment as a bargaining representative,9 and on 2310 and 24 April11 2018 Mr Soueid sent letters to Linfox complaining about its failure to recognise him as a bargaining representative and expressing concern about its failure to meet the good faith bargaining requirements in the Act. A response was received from Linfox on 26 April12 indicating it still did not accept him as a bargaining representative. He then proceeded on the following day to file the present application.

[6] Mr Soueid is employed as a store person at the Woolworths’ Distribution Centre in Broadmeadows, and is a Union delegate at that site for the NUW. However, he is not an employee or an official of the NUW, and does not hold a right of entry permit.

[7] The four employees have instructed him to act as their bargaining representative in the current negotiations, however, he now claims Linfox is not meeting the good faith bargaining requirements in the Act, and specifically refers to the following matters in this context:

“• Not recognising me as a bargaining representative and not bargaining with me;

• Acting unfairly as reflected in its correspondence about the matter such that it undermines collective bargaining and the choice of bargaining representatives by employees; and

• Not providing relevant information about bargaining meetings and arrangements.” 13

[8] He continued to state that:

“In about early April 2018 I was asked if I would help some Linfox employees and act as a bargaining representative for them. Heath Lamaro an official of the NUW contacted me to ask if would assist the employees. I understood the employees could not be represented by the NUW. I said I would assist the employees. I knew Mr Lamaro as he was the NUW organiser for my Woolworths work site. I have had previous experience in representing employees and in bargaining. In doing so for the Linfox employees I am not representing the NUW nor am I authorised to represent the NUW.” 14

[9] He then met with the employees at the site and discussed their bargaining claims. No NUW official was present in those discussions. He was told the employees did not want the TWU to be their bargaining representative. He also said he has been told by other employees at the site that they have deferred appointing him as a bargaining representative pending the outcome of this application. 15 He also knew some of the employees because they had previously worked at the Woolworths site where he is employed.

[10] Mr Soueid also indicated in cross-examination that he had been told by either Mr Lamaro, or by the employees themselves, that the NUW was unable to represent them. 16 He agreed to assist them because he had been in a similar position previously at another workplace, when he did not want to be represented by a particular Union in the negotiations. He also said that when he was contacted by Mr Lamaro he understood he was acting on behalf of the employees, rather than on behalf of the NUW, and in taking on the role of bargaining representative his “whole aim is to try and best represent the workers.”17 He was also not aware Mr Lamaro had been an organiser at the Linfox site.

[11] Mr Soueid also indicated in cross-examination that he was given the names of the employees by Mr Laws, and Mr Lamaro had only given him a “very brief recap” 18 about them. He also knew Mr Laws was an NUW delegate at another worksite because they had met at Union rallies, and he had since spoken to him on the phone on two or three occasions about the employees at Linfox. He had also now spoken to the four employees who had appointed him as a bargaining representative “on a couple of occasions,”19 but was not aware of who had suggested he might be prepared to act as their bargaining representative. However, he acknowledged that Mr Lamaro had asked him if he could represent the employees in the negotiations. He was also not aware of who had prepared the Bargaining Representative Appointment Form with his name on it.20 He first saw the forms after they had been emailed to Linfox by Mr Laws.21 Mr Laws had also given him some brief information about the drivers’ claims, but he had not received anything at this time from the employees themselves.

[12] Mr Soueid also indicated in cross-examination that when Linfox sent the letters to the employees on 17 April, challenging his appointment, he sent them an email in response on the same day telling them to ignore that letter. He had been given their email addresses after meeting with them when he “went down to the site on a couple of occasions.” 22 He also said he told the employees in the email that he and Mr Laws were going to seek legal advice about the correspondence from Linfox, and that advice was later sought from Gordon Legal.23 He understood that this occurred after Mr Laws sought advice from the NUW.

[13] Mr Soueid also said he had one or two discussions with Mr Toner about his involvement at Linfox, and understood him to be an Industrial Officer with the NUW. 24 He was then provided with a list of employees who did not want to be represented by the TWU, but could not be represented by the NUW, and he then forwarded the email of 10 May to those employees.25

The submissions made on behalf of Mr Soueid

[14] The submissions deal at the outset with the relevant legislative provisions. It is submitted that Mr Soueid has been appointed as a bargaining representative in accordance with s.176(1)(c) of the Act. He is an NUW delegate, but is not an official of the Union, and therefore is not precluded from being appointed by s.176(3). 26 He also submits that these provisions have been amended recently, but despite these amendments the Parliament did not see fit to include “officers” in the definition.27 He continues to submit that the bargaining representative appointment form has appointed him in a personal capacity, independently of any relationship with the NUW.28

[15] His submissions next refer to s.228 and state that the failure to recognise him as a validly appointed bargaining representative is a breach of those good faith bargaining requirements. 29 It is also submitted that the relevant provisions in s.229 have been complied with in that written notice of his concerns has been provided to Linfox, and it has been given a reasonable time period in which to respond, but has not responded appropriately.30

[16] Section 231 next requires that a bargaining order can be made if it is reasonable in the circumstances. The decision in TWU v Hunter Operations is referred to as authority for the proposition that what is reasonable in all the circumstances requires a broad evaluative discretionary judgement to be made based on the circumstances involved. 31 It also submits that the orders sought are not excessive, and effectively require the employer to bargain.32 They recognise Mr Soueid as a bargaining representative and seek that he be provided with the names and contact details of the other bargaining representatives. They also seek that any further bargaining be deferred until he has been provided with the time, place and the agenda for the next bargaining meeting.

[17] It was also indicated in response to a question from the Commission that it is entitled to consider “a broader factual scenario” 33 in deciding whether to make the orders sought, but the fact that the evidence indicates that Mr Soueid has been appointed as a bargaining representative in a personal capacity should be given most weight.

[18] Mr Soueid’s submissions also deal with the question of whether he can be said to be an agent of the NUW. He acknowledges that he is an NUW delegate, and is accordingly an “officer” of the Union. However, he is not an “official” of the Union. This is consistent with the fact that he is acting as a bargaining representative in his own capacity, and is not representing the NUW, and has not been authorised to represent the NUW. He also submits that there is no evidence that it has been held out to the employees that he is acting as a representative of the NUW. There is therefore no evidence of any agency relationship, or of Mr Soueid acting under authority given to him by the NUW.

[19] His submissions next refer to those relied upon by Linfox in regard to section 793. They first make reference to the decision in Walplan Pty Ltd v Wallace 34 as authority for the proposition that the first test to be satisfied in this context is whether Mr Soueid engaged in conduct on behalf of the NUW. Reference is next made to the decision in Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd35 in terms of whether it can be said that an act is done on behalf of a corporation. He submits in this context that one of two conditions must be satisfied, being “that the actor engaged in the conduct intending to do so “as a representative of” or “for” the corporation, or that the actor engaged in the conduct in the course of the corporation’s business, affairs or activities.”36 It is submitted in response that “both Mr Soueid and the NUW have expressly disavowed any representational relationship,”37 and “[i]rrespective of which test you may apply, he is not representative of the NUW and, in representing the bargaining representatives, he is not acting in the course of the corporation’s business affairs or activities.”38 In short, “he is an independent bargaining representative acting on behalf of the employees who have appointed him.”39

[20] Mr Soueid submits, in conclusion, that he had no actual authority to act as a bargaining representative for the NUW. He also refers to the decision in Kaizen 40 in respect of what is required in regard to s.793 and, in particular, to the excerpts from the decision referred to in Pacific Carriers Ltd v BNP Paribas41 as to when apparent authority might be inferred when it was stated in the following terms:

“Where an officer is held out by a company as having authority, and the third party relies on that apparent authority, and there is nothing in the company’s constitution to the contrary, the company is bound by its representation of authority.” 42

[21] Mr Soueid submits in response that he has not been held out by the NUW as having authority, and there is no evidence of any of the employees having relied on any such representation. 43 Therefore, no apparent authority can be imputed to him as there was no reliance and no representation made in respect of his authority to act in relation to the NUW. He submits, in conclusion, that what is lacking in the evidence is any adequate description of how a relationship of apparent authority was imputed, and there is no evidence of any reliance by the employees on any such authority being given. There is accordingly no basis to find that s.793 applies, as his conduct was not engaged in on behalf of the NUW, but was carried out as a bargaining representative acting in his own right.

[22] Mr Soueid also submits, in conclusion, that the employees are entitled to be represented in bargaining and this is consistent with the objects of the Act, and he has simply sought to enable this to occur. While the NUW may have sought to have the employees represented he has also been asked to represent them in a personal capacity. He continues to submit:

“These employees are entitled to representation, and that’s the basis for our submission. Plainly, there is a background to it, but we reject any suggestion that that’s an unreasonable contrivance or something that should be, on its face, prohibited. These employees are entitled to representation and that’s one of the objectives of the Act and Mr Soueid has sought to bring that to effect.” 44

The Respondent’s Evidence and Submissions

Mr Darren Jones

[23] Mr Darren Jones is employed by Linfox as General Manager, Workplace Relations. He said the fuel tanker drivers employed by Linfox are covered by the Linfox Australia (Bulk Petroleum) Agreement 2014 that was negotiated at the time with the TWU as the sole bargaining representative of the employees.

[24] Linfox commenced bargaining for an Agreement to replace the 2014 Agreement in February of this year. On 28 February 2018 Mr Jones received an email from Mr Matt Toner, an Industrial Officer from the NUW, requesting that Linfox recognise the status of the NUW in bargaining on the same basis as the TWU. 45 Mr Jones said he responded by requesting confirmation of the NUW membership rule relied upon by the Union to permit it to act as a bargaining representative for the fuel tanker drivers at the Altona North site.46 Mr Toner provided a response on the same day which indicated he believed the Union was eligible.

[25] On 2 March 2018 Mr Jones received an email from Mr Heath Lamaro, a Lead Organiser of the NUW, attaching purported right of entry notices to the Altona North site for Mr Lamaro and Mr Toner. Mr Jones said he sent a further email to Mr Lamaro on 5 March raising concerns about both the right of entry notices and the NUW’s right to represent the drivers. 47 He did not receive a reply.

[26] On 7 March 2018 Mr Jones was given a copy of an email received by Mr Peter McCallum, the Victorian Operations Manager – Fuels at Linfox. It was from one of the fuel tanker drivers, Mr Peter Mitrov, a person who Mr Jones understood has held himself out to be an NUW delegate at the site. Attached to the email were 28 identical notices from other fuel tanker drivers purporting to appoint Mr Mitrov as their bargaining representative for the new Agreement. They included the four employees who now seek to appoint Mr Soueid.

[27] Mr Jones was given a further email that Mr McCallum then received from Mr Mitrov on the same day. It attached a hand written notice in which Mr Mitrov purported to appoint ‘Evan Willis (solicitor, Holding Redlich)’ 48 as his bargaining representative for the new Agreement. Mr Jones said that this was the first occasion in his experience that an employee had appointed a Solicitor to be their bargaining representative.49 He also considered the circumstances to be unusual in that Mr Mitrov was seeking to act as a bargaining representative as well as wanting to be represented by one.50 This occurred two days after he had written to the NUW challenging their capacity to represent the tanker drivers. Mr Jones said he then sent emails to both Mr Mitrov and Mr Willis raising concerns about whether their respective appointments as bargaining representatives were valid.51 He then received a further email from Mr Mitrov on 19 March revoking his appointment of Mr Willis as a bargaining representative and, at the same time, appointing himself as his own bargaining representative.52 However, on 22 March 2018 Mr Mitrov’s employment at Linfox ended.53

[28] On 28 March Mr McCallum then forwarded Mr Jones a flyer concerning a proposed NUW meeting with employees at the site on 4 April 2018.

[29] On 13 April Mr McCallum forwarded a further email he received from Mr Laws and Mr Soueid. It attached four separate notices revoking the appointment of Mr Mitrov and appointing Mr Laws and Mr Soueid as bargaining representatives. Mr Jones had not heard of either Mr Soueid or Mr Laws, and asked a colleague to perform a Google search on those names. 54 He was given various emails and other documents which led him to be concerned that the appointment of Mr Soueid and Mr Laws “was a vehicle for the NUW to be engaged in the bargaining for the Proposed Agreement.”55 He was concerned about this because of:

“(a) what I perceived to be a connection between Mr Soueid and Mr Laws with the NUW from the results of internet searches;

(b) the history of the bargaining for the Proposed Agreement;

(c) the fact that Mr Laws had indicated to Mr McCullum that he and Mr Soueid were warehouse workers of Coles and Woolworths respectively; and

(d) what appeared to be a co-ordinated approach of Mr Laws and Mr Soueid to the bargaining evidenced by their request to act as a single bargaining unit.” 56

[30] However, Mr Jones also indicated in cross-examination that despite his concerns about what appeared to be a co-ordinated approach involving Mr Laws and Mr Soueid he was not certain that this was actually the case. 57 He also indicated that he did prepare template bargaining revocation forms after being told by Mr McCallum that some employees wish to revoke their bargaining status.58 On 17 April 2018 Mr Jones sent an email to each of the tanker drivers, who appointed Mr Soueid and Mr Laws as their bargaining representative, attaching a letter detailing his concerns about those appointments. It made reference, in part, to the following:

“In particular, Linfox has concerns that the purported appointment is inconsistent with section 176(3) of the Fair Work Act 2009 (FW Act) which imposes limits on the involvement of trade unions and certain union representatives in enterprise bargaining where the union is not eligible to represent the industrial interests of employees who will be covered by the agreement being bargained for.

The following facts support this:

• On 28 February 2018, the NUW notified Linfox of its intention to act as a default bargaining representative for the Proposed Agreement.

• On 5 March 2018, Linfox raised concerns about whether the NUW was eligible to represent the industrial interests of employees who would be covered by the Proposed Agreement.

• On 7 March 2018, you provided us with a notice purporting to appoint Peter Mitrov as your bargaining representative. At that time, Mr Mitrov was the site delegate for the NUW.

• On the same day (7 March 2018), Mr Mitrov provided us with a notice purporting to appoint Evan Willis (a lawyer from Holding Redlich) as his bargaining representative.

• On 9 March 2018, Linfox wrote to Mr Mitrov and Mr Willis challenging the validity of their appointments. In the letter to Mr Willis, we said:

Linfox understands that the National Union of Workers (NUW)is a client of Holding Redlich’s. It also seems reasonable to infer that Holding Redlich is acting for the NUW in relation to the Proposed Agreement. Please advise us if either of these matters is incorrect.

No reply was received to this letter.

• On 19 March 2018, Mr Mitrov revoked his nomination of Mr Willis as his bargaining representative.

• In the period between 19 March 2018 and the date of this letter, Mr Mitrov ceased to be an employee of Linfox. Following this, you purported to appoint Mr Laws as your bargaining representative. At the same time:

• three other Linfox employees also purported to appoint Mr Laws as their bargaining representatives for the Proposed Agreement. Like you, these other employees had also previously nominated Mr Mitrov as their bargaining representative. In all cases, the nomination form for the purported appointment of Mr Laws are the same and they are identical to the form used for the purported appointment of Mr Mitrov; and

• four other employees who previously purported to appoint Mr Mitrov as their bargaining representative purported to appoint a second person (Tarek Soueid) as their bargaining representative. Once again, the forms used for the appointment of these four employees are identical to each other, and to the form used for the purported appointment of Mr Mitrov.

• Neither Mr Laws nor Mr Soueid are employees of Linfox. When a representative of Linfox spoke to Mr Laws on the telephone, Mr Laws confirmed that he and Mr Soueid are employed by Coles and Woolworths respectively.” 59

[31] Mr Jones then received an email from Mr Philip Gardner of Gordon Legal on 23 April indicating that he acted for both Mr Soueid and Mr Laws. 60 It sought confirmation that Linfox recognise Mr Soueid and Mr Laws as bargaining representatives and indicated that bargaining orders would be sought if this did not occur. He received further correspondence on the following day containing a similar request. Mr Jones responded on 26 April stating:

“Linfox will recognise and bargain with any validly appointed bargaining representative. However, Linfox is not satisfied by your letters that its concerns identified with the purported appointments of Messrs Soueid and Laws in our letters dated 17 April 2018 have been addressed.

Accordingly, Linfox is not convinced that Ryan Laws and Tarek Soueid have been validly appointed as bargaining representatives for the Proposed Agreement.

On the contrary, it would appear that their purported appointment is simply a device which attempts to circumvent one of the central tenets of both the bargaining provisions in the Fair Work Act 2009 (Cth) (Act) and the law concerning registered organisations – that is, to limit employee organisation’s capacity to represent employees to persons within their eligibility rule.” 61

Linfox’s Submissions

[32] Linfox submits at the outset that an application for a bargaining order can only be made by a properly appointed bargaining representative. Mr Soueid must therefore establish he has been properly appointed and is not otherwise ineligible.

[33] It continues to submit that he is not eligible to be appointed for the following reasons. Firstly, “… on a proper reading of section 176(3), Mr Soueid is an official of the NUW.” 62 Therefore, he is excluded from the class of persons who can be a bargaining agent.

[34] Secondly, Mr Soueid is by virtue of s.793(1)(a) of the Act “an officer” of the NUW who, by seeking to act as a bargaining representative, is engaged in conduct on its behalf within the scope of his actual or apparent authority.

[35] Finally, and in the alternative, Mr Soueid is a person who is engaged in conduct on behalf of the NUW, either at its direction, or with the express or implied consent or agreement of an official of the NUW. It refers to s.793(1)(b) of the Act in support of this submission.

[36] It makes particular reference to the following evidence.

• On 14 February Linfox commenced bargaining for a new agreement.

• On 28 February Mr Jones received an email from Mr Toner of the NUW asking that Linfox recognise the NUW as a bargaining representative. Mr Jones responds by questioning the NUW’s eligibility to represent the employees.

• Mr Lamaro from the NUW then sends right of entry notices to Mr Jones on behalf of himself and Mr Toner. Mr Jones again responds by indicating that the NUW does not have coverage. He does not receive a response to this email.

• Mr Toner then sends a letter to a solicitor at Holding Redlich, Mr Evan Willis, stating:

“Linfox are currently refusing us entry and excluding us from bargaining by claiming we don’t have constitutional coverage of fuel tanker drivers.

We would like to engage Holding Redlich to act as the bargaining representative for the drivers like it did for Toll.

We have advised members to appoint our delegate Peter Mitrov as the bargaining representative. He will then appoint Holding Redlich as his bargaining representative.

I will send you through the appointment forms on Wednesday but wanted to give you the early heads up on what the situation is and what the claims are.” 63

• The correspondence then continues to list the NUW’s log of claims.

• Mr Willis agrees in response to act as the bargaining representative, and there is then further correspondence between him and Mr Toner in early March about an updated log of claims.

• On 7 March Mr Mitrov sends an email to Linfox appointing himself as a bargaining representative for a group of employees, as well as appointing Mr Willis as his representative. Linfox responds by indicating it has concerns about these arrangements. Mr Willis then revokes his status as a bargaining representative, as does Mr Mitrov shortly after.

• On 28 March NUW flyers are posted in the lunchroom about a meeting on 4 April, and in early April, Mr Lamaro asks Mr Soueid to be a bargaining representative for some of the employees. Linfox submits, “[i]t is abundantly clear that the relationship between Mr Lamaro and Mr Soueid is one forged in their role as union officers,” 64 in circumstances where Mr Soueid is not an employee of Linfox, nor is he a fuel tanker driver. It submits in response that the request to Mr Soueid from Mr Lamaro, who is an official of the NUW, is put on the basis that because the NUW is not able to represent the employees will he do so on its behalf.

• It continues to note that the notices of appointment were not created by Mr Soueid. The appointments were also made without his knowledge or involvement, and he had not previously spoken to or had any involvement with the four employees at Linfox who had appointed him as a bargaining representative.

• Linfox then expressed its concerns to the employees who had appointed Mr Soueid and Mr Laws about the validity of those appointments. Mr Soueid then tells them to ignore the correspondence from Linfox and indicates that “[w]e are getting legal advice,” 65 after which he makes contact with Mr Toner at the NUW and is referred to Gordon Legal.

• Mr Soueid then sends a further email to the broader group of employees on 10 May and introduces himself as someone who has been a union delegate at his worksite for 15 years. He also tells them he has been asked by a number of employees to be their bargaining representative, when in reality he was asked by Mr Lamaro to do so.

[37] Against this background Linfox continues to submit that Mr Soueid’s emergence as a bargaining representative is simply the latest step in what should be seen as an “indivisible part of the narrative.” 66 This had involved various individuals being nominated as bargaining representatives at different times after Linfox questioned the NUW’s ability to be involved. It highlights the identical nomination forms that have been used as evidence of this coordinated approach, and submits that “[o]ne can’t just disentangle this group.”67 These circumstances are also detailed in the letter that Linfox sent to the individual employees on 17 April 2018, which is attached to application. Linfox also reiterates Mr Soueid’s previous lack of any involvement with the employees who appointed him, noting in particular that he is not a tanker driver and is not employed by Linfox.

[38] It submits, in conclusion, that based on this evidence it “beggars belief” 68 to suggest Mr Soueid was acting in a private capacity when he came to be appointed by the four employees as a bargaining representative.

[39] In terms of the relevant legislative framework it, firstly, makes reference to s.176(3) of the Act, which it submits is intended to disqualify certain persons from being bargaining representatives for the purposes of enterprise bargaining. In its submission it makes clear that an employee, or an official of an employee organisation, “cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.” 69 This applies even if the individual purports to act in a private capacity.

[40] It continues to submit that there has been “no positive assertion” 70 in the proceedings that the NUW has eligibility to represent the industrial interests of the employees, despite the opportunity that has been provided to it during the course of the proceedings. (However, it also acknowledged in response to a question from the Commission that while there was some evidence before the Commission about the nature of the work performed by the employees this issue had not been dealt in any detail.)71 However, it also submits that the assertion that the NUW does not have coverage “has not been seriously challenged.”72

[41] Linfox continues to submit that on the basis of s.176(3)(b) an employee of the NUW cannot be a bargaining representative. In addition, s.176(3)(c) also makes clear that an “official” of the NUW cannot be a bargaining representative. It continues to note in this context that the definition of “official” in the Act does not include a delegate of the union. The definition in s.12 instead defines an official of an industrial association as “a person who holds an office in, or is an employee of, the association.” 73

[42] However, it also makes reference to the definition of “officer of an industrial Association” in s.12, which is indicated to include:

“(a) an official of the association; or

(b) a delegate or other representative of the association.” 74

[43] Linfox next makes reference to s.793 of the Act, which states:

“Liability of bodies corporate

Conduct of a body corporate

(1) Any conduct engaged in on behalf of a body corporate:

(a) by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or

(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b) that the person had that state of mind.

Meaning of state of mind

(3) The state of mind of a person includes:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

Disapplication of Part 2.5 of the Criminal Code

(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.

Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.

(5) In this section, employee has its ordinary meaning.” 75

[44] It submits, in response, that s. 739 contains an expanded definition of “official,” in that sub section (1)(a) refers to “an officer, employee or agent” as being an “official.” It is therefore open to the Commission, when considering s.176(3), to apply this expanded definition of “official” in keeping with what s.793 intends. 76

[45] It follows in its submission that this goes to the heart of the substantive application, and if Mr Soueid cannot be a bargaining representative by virtue of s.176(3), then the application should be dismissed because he has no ability to represent the employees in that capacity.

[46] In turning to deal specifically with s.793 Linfox submits Mr Soueid is “caught by either (1)(a) or (1)(b).” 77 In regard to s.793(1)(a) it submits it has application because Mr Soueid is an officer of the NUW and has engaged in conduct on behalf of the Union. This is demonstrated by the evidence referred to, and by the inferences “… that can be properly drawn from the facts and circumstances.”78 It continues to submit:

“We say that it is open to find that Mr Soueid is an officer who has engaged in conduct on behalf of the union within the scope of his or her actual or apparent authority, that actual or apparent authority being the fact that he is an NUW delegate, has authority to represent NUW members and he has been asked to do so by an NUW official.” 79

[47] It continues to submit, in the alternative, that if the Commission is not satisfied about the application of s.793(1)(a) then Mr Soueid is also “caught by s.793(1)(b).” 80 It submits that these provisions exist to deal with circumstances in which a person acts outside of their actual or apparent authority, and acts instead at the direction or with the express or implied consent or agreement of an official of the Union. Linfox submits these provisions make clear that the conduct of an individual can in such circumstances be taken to be conduct engaged in on behalf of the organisation. If Mr Soueid is, for example, an NUW delegate, and an “officer” of the organisation then it can be concluded that he is acting as an agent of the NUW, with either its implied or explicit consent, or he is engaged in conduct at the direction of or with the agreement of the NUW. It follows that his involvement is arguably a device to enable the NUW to participate in the bargaining process when it is not otherwise able to do so.

[48] In this context it again refers to the evidence indicating that Mr Heath Lamaro, an official of the Union, asked Mr Soueid to represent the group of employees at Linfox. Mr Soueid is then involved in further discussions with Mr Toner, who is another official with the NUW. Linfox submits, in response, that these arrangements demonstrate Mr Soueid is acting with the consent or the agreement of an official(s) of the Union, and the Union has in turn consented to what those officials, being Mr Lamaro and Mr Toner, are doing.

[49] Linfox also makes refers to the Federal Court decision in Australian Workers’ Union v Leighton Contractors [2013] FCAFC 4 as authority for the proposition that s.793 should not be narrowly construed, or interpreted as only applying to conduct in civil contravention proceedings. It submits instead that the decision makes clear that the legislative intent is to attribute conduct to an organisation in circumstances where that conduct is either taken at the direction of the organisation, or through an officer or employee of the organisation acting with its express or implied consent. It also submits that the authorities make clear that the conduct is to be determined by reference to the actual facts and circumstances involved, and not simply by reference to the assertions of any particular individual.

[50] Linfox finally submits in the alternative that if the Commission is against it in regard to any of the grounds it has relied on then the decision to make a bargaining order ultimately remains a discretionary one. 81 In its submission it would accordingly be open to the Commission to do nothing, and to instead await developments in the bargaining process.82

[51] Linfox also notes the NUW’s acknowledgement that it is not seeking to press the issue about whether it has coverage to represent the employees to be covered by the proposed Agreement. It submits in response that this emphasises the importance of establishing whether Mr Soueid is acting as an agent of the NUW, in that it would act to defeat the legislative intent if he is able to be a bargaining representative in circumstances where it has not been established that the NUW has coverage. It again emphasises in this context that Mr Soueid is an NUW delegate at another worksite.

Consideration

[52] The respective positions of the parties can be simply stated. Mr Soueid seeks to be acknowledged as a bargaining representative for the four Linfox employees who he claims have appointed him in a private capacity to be their bargaining representative in the negotiations for a new enterprise agreement to cover Linfox and its tanker drivers. In his words my “… whole aim is to try and best represent the workers.” 83

[53] Linfox rejects this submission. It submits instead that Mr Soueid’s appointment as a bargaining representative is a contrivance designed to overcome the fact that the NUW is not eligible to represent the employees at Linfox, and therefore the Union and/or its officials and employees cannot be a bargaining representative for them. The appointment of Mr Soueid, who is an NUW delegate at another unrelated worksite, is intended to get around this restriction and to enable the NUW to continue to be involved in the negotiations in circumstances where the Act precludes them from acting as a bargaining representative.

[54] The Commission was invited by Linfox during the course of the proceedings to rule on whether the NUW had eligibility to cover the employees. The Commission indicated in response that it did not believe that the submissions and evidence before it were sufficient to enable it to make an informed decision about this matter. I continue to be of that view.

[55] However, it does appear from the submissions and evidence that the employees were of the view that the NUW was either not eligible to cover them or, at the very least, this was an issue that remained in contention. For example, Mr Soueid indicated in cross-examination that when he was originally approached by an NUW organiser, Mr Heath Lamaro, he was told “…that they are unable to represent the workers there.” 84 Mr Toner, who is an NUW industrial Officer, and appeared in the matter on behalf of Mr Mitrov, also indicated that the NUW was “not pressing the constitutional coverage issue”85 in the proceedings.

[56] As indicated, I am satisfied in response that the question of whether the NUW is eligible to cover the relevant employees is, at the very least, and issue in dispute. I am also satisfied that it is an issue that is not able to be determined at this point based on the submissions and evidence now before the Commission.

[57] I intend to deal, firstly, with the evidence that is relied upon before turning to consider the relevant legislative provisions that must guide the determination of this application. As indicated already Mr Soueid presented as what might be described as “a concerned citizen,” who was primarily motivated to provide representation in bargaining for a group of employees who had approached him in circumstances where they had been denied their choice of representative, and/or were otherwise not prepared to represent themselves. While Mr Soueid acknowledged in his evidence that he was an NUW delegate at another worksite he appeared careful to make clear that he was not acting in any concerted way on behalf of the Union, but was primarily motivated by the interests of the employees who had appointed him. It could, in fact, be said that he was perhaps too careful in his attempts to maintain some distance between himself and the Union.

[58] However, regardless of whether Mr Soueid believes he is simply attempting to provide representation in a private capacity to a group of employees, who are otherwise being denied that opportunity, I am satisfied that the evidence paints a very different picture that is difficult to ignore. Mr Soueid was originally asked to represent the employees by Mr Heath Lamaro, who is a Lead Organiser with the NUW. As indicated already Mr Soueid understood at the time that the approach was made to him because the NUW was otherwise unable to represent the employees. Mr Soueid did not work at the site where the employees were located; he did not know any of the employees involved; and he had not spoken to any of them prior to being appointed as their bargaining representative. In addition, he did nothing to facilitate his appointment, and it was instead organised without his direct involvement.

[59] As the evidence of Mr Jones also makes clear Mr Soueid’s appointment as a bargaining representative was only one of a series of developments that occurred following the decision by Linfox in February of this year to commence bargaining for a new Agreement to cover its tanker drivers. These have been set out in the summary of the evidence provided by Mr Jones, and in the dot points in the summary of Linfox’s submissions, and it is not necessary to go to them in detail again now. However, they indicate that the NUW initially sought to be recognised as a bargaining representative but Linfox responded by questioning its eligibility to be involved. The Union then sought to have a Solicitor from Holding Redlich appointed as a bargaining representative. It indicates to the Solicitor that, “we have advised members to appoint our delegate Peter Mitrov as the bargaining representative. He will then appoint Holding Redlich as his bargaining representative.” 86 It also indicates that it will send through the appointment forms and continues to provide a “heads up on what the situation is and what the claims are.”87 Its correspondence then continues to list the NUW’s log of claims. Mr Mitrov then sends the email appointing himself as a bargaining representative, as well as appointing Mr Willis as his representative. When Linfox responds by indicating it has concerns about these arrangements, both Mr Willis and Mr Mitrov revoke their appointments shortly after. Mr Soueid and another NUW delegate from another worksite, Mr Ryan Laws, are then each appointed as bargaining representatives by two separate groups of Linfox employees, however, Mr Laws subsequently revokes his appointment, apparently because of other commitments that prevent him from continuing to be involved.

[60] When Linfox again expresses its concerns to the employees who have appointed Mr Soueid, he tells them to ignore that correspondence, and indicates that legal advice is being obtained, after which Mr Soueid makes contact with Mr Toner at the NUW and is referred to the firm of Gordon Legal.

[61] I am satisfied in response that it is not necessary to dissect these developments in detail to determine what was happening. The evidence instead makes clear that these developments occurred because of the direct involvement of the NUW, and of two of its employees, Mr Heath Lamaro, a Lead Organiser, and Mr Matt Toner, an Industrial Officer. While it is accepted that the employees at Linfox, and Mr Soueid, may well have been prepared to be part of what occurred, I am satisfied that they were not the instigators of this action. It was instead a direct consequence of the involvement of the NUW and its employees, following the decision by Linfox to commence bargaining for a new Agreement to cover its tanker drivers.

[62] I am also satisfied that it is reasonable to assume that all of this occurred because the NUW and its employees were not able to be directly involved themselves, given the relevant provisions in the Act. However, the NUW wanted to find a way of continuing to be involved. This conclusion is not of itself intended to impugn the motives of the NUW, or to necessarily be critical of its behaviour. It is accepted that the Union may well have employees at Linfox who want to be represented by the NUW, or at least do not want to be represented by the TWU, and the NUW was endeavouring to find a way to provide that representation. However, having come to the above conclusions it is necessary at this point to consider these circumstances in the light of the relevant legislative provisions.

[63] As indicated already Mr Soueid submits that he is entitled to be appointed as a bargaining representative in a private capacity, and Linfox’s refusal to acknowledge his appointment provides justification for the Commission to exercise its discretion to make the bargaining orders sought. Linfox submits, in response, that there is a threshold issue to be determined, given that the Commission can only make bargaining orders on application by a bargaining representative. Therefore, if Mr Soueid is not eligible to be a bargaining representative then the Commission has no grounds for making the orders.

[64] Linfox first makes reference to s.176 of the Act. It deals with who may be a bargaining representative for a proposed enterprise agreement and states as follows:

“Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation--the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation

(2) If:

(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and

(b) an employee organisation applied for the authorisation; and

(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;

the organisation is taken to be a bargaining representative of such an employee unless:

(d) the employee is a member of another employee organisation that also applied for the authorisation; or

(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or

(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

Employee may appoint himself or herself

(4) To avoid doubt and despite subsection (3), an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.

Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).” 88

[65] Section 176(1)(c) obviously makes clear that a person in their private capacity can be a bargaining representative for an employee if the employee appoints the person in writing to be their bargaining representative. Mr Soueid obviously relies on this provision in support of him being a properly appointed bargaining representative, and he is therefore entitled to make application for the orders now being sought.

[66] However, Linfox makes particular reference to s.176(3), which makes clear that an “official” of an employee organisation (whether acting in that capacity or not) cannot be a bargaining representative of an employee, unless the organisation is entitled to represent the industrial interests of the employee in relation to the work to be performed under the proposed agreement. The sub section is a relatively recent addition to the Act having come into force on 1 January 2013. Whilst a review of the relevant Explanatory Memorandum does not shed any further light on the intention of this amendment it can be presumed that it was intended to address the circumstances involving an official of a Union obtaining representational rights for employees who perform work that falls within the coverage of another Union by arguing that the official is acting in a private capacity.

[67] The definition of “official” is contained in section 12 of the Act. It states:

“official”, of an industrial association, means a person who holds an office in, or is an employee of, the association.” 89

[68] Linfox, firstly, submits that it is open to the Commission, based on the evidence, to conclude that Mr Soueid is an “official” of the NUW, and therefore cannot be a bargaining representative, given the NUW is not entitled to represent the industrial interests of the employees in relation to the work to be covered under the proposed Agreement. I do not accept this submission. The evidence of Mr Soueid is that he is an NUW delegate at his worksite, being the Woolworths Distribution Centre in Broadmeadows where he is employed as a store person. However, he is not an elected official of the Union, or employed by the Union, as appears to be contemplated by the definition of “official” in s.12. It is also noted that s.12 contains a definition of “officer.” It states:

“officer,”of an industrial association, means:

(a) an official of the association; or

(b) a delegate or other representative of the association.” 90

[69] This definition, firstly, appears to lend weight to the conclusion that “a delegate” is not an “official” and should not be imputed to be, given that “a delegate” is specifically referred to in the definition of “officer,” but not referred to at all in the definition of “official” in s.12. I am satisfied in response that the definition of “official” in the Act is not intended to include an employee “delegate.” I am also satisfied that if s.176(3) was intended to include a workplace delegate in the category of persons who cannot be a bargaining representative in the prescribed circumstances then it would also have made reference to “delegate” in the definition of “official” in s.12. However, it does not. I am satisfied in response that it must be assumed that the legislation was drafted with the intention of not including a person who is “a delegate” in the category of persons who cannot be a bargaining representative in the circumstances prescribed in s.176(3). I am also satisfied as a consequence that it is not appropriate for the Commission to be imputing, for whatever reason, that an employee delegate should be included among such persons.

[70] In coming to this conclusion it follows that I do not accept the submission of Linfox that Mr Soueid is caught by the provisions in s.793(1)(a) of the Act, which make reference to a broader definition and indicates that any conduct engaged in “by an officer, employee or agent (and official)” can be taken to have been engaged in also by the body. Those provisions have been set out at an earlier point in this decision and are not restated now. As indicated, I am satisfied instead that if the category of persons to be included in s.176(3) was intended to be broader than specifically referred to then the provisions in the sub section would have been expressed accordingly.

[71] Linfox finally makes reference to s.793(1)(b) and submits that Mr Soueid is “caught” by these provisions, given the circumstances involved. It is appropriate to make brief reference again to the relevant parts of the legislation at this point. It states:

“(1) Any conduct engaged in on behalf of a body corporate:

…

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.” 91

[72] It continues to submit that these provisions exist to deal with the circumstances where a person acts outside of their actual or apparent authority, but at the direction or with the express or implied consent or agreement of an official of the Union. In these circumstances it submits the conduct of the individual can be taken to be conduct engaged in on behalf of the organisation. It submits that this is what occurred in the present matter, and Mr Soueid is engaged in conduct at the direction or with the consent or agreement of an official of the NUW, in circumstances where that has occurred within the scope of the actual or apparent authority of the official. It submits as a consequence that his actions should therefore be taken to have been engaged in by the NUW as well. In this context it refers, in particular, to the actions of Mr Heath Lamaro, who originally asked Mr Soueid whether he would be prepared to be a bargaining representative on behalf of the employees at Linfox. It then refers to his further discussions with Mr Toner at various stages, and submits that this demonstrates that he was acting at the direction or with the consent or agreement of officials of the Union, and it has in turn consented to this occurring.

[73] Linfox also relies on the decision of the Full Court of the Federal Court in Australian Workers’ Union v Leighton Contractors Pty Ltd [2013] FCAFC 4 as authority for the proposition that s.793 should not be applied narrowly or confined, for example, to the context of civil penalty or other proceedings arising out of a contravention of the Act. That matter involved an enterprise agreement signed on behalf of a Union by an officer who did not have authority to do so under the Union’s rules.

[74] The following extract is contained in the judgement of Katzmann J at [87]:

“The starting point of construction must be the words of the section: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 (“K & S”) at 321. The text of s 793 suggests a broad operation. So does its textual context. It appears in Part 6–5 of the Act which is entitled “Miscellaneous”. Moreover, there is nothing in the legislative history to point to a narrow application. The predecessor of s 793 was s 826 of the WR Act (and s 349 before the Work Choices reforms). It was in substantially the same form, although the order of the subsections differed. The heading to s 826 (and s 349) was “Conduct by officers, directors, employees or agents”. There was no express reference to the liability of the body corporate and there were no subheadings. The legislative history does not suggest that the heading to s 793 was inserted with the intention of narrowing the scope of the section. In any event, in its ordinary meaning “liability for conduct” merely means the condition of being answerable for or bound by the conduct. Liability may be assumed or attributed. Indeed, that is what the law of agency is all about. Had Parliament intended to confine the operation of the section to cases involving contraventions of the FW Act, it could easily have said so.” 92

[75] Her Honour continued to state in [90]:

“But s 793 does not operate in this way. It is not merely the conduct that enlivens the operation of the section. There are three preconditions. First, the conduct must be engaged in on behalf of the body corporate. Secondly, the conduct must be engaged in by an officer, employee or agent of the body corporate. Thirdly, the officer, employee or agent must have been acting within the scope of his or her apparent authority.” 93

[76] She also noted at [92]:

“I accept that for Mr Close to have had apparent authority it is not enough that he held himself out as having authority …. There must at least have been circumstances justifying a belief on the part of those who dealt with him that he was acting with authority.” 94

[77] Mr Soueid submits in response that he is, firstly, not an official of the NUW, and this is consistent with him acting as a bargaining representative in his own capacity. He also submits that there is no evidence pointing to him acting as a representative of the NUW, or having been authorised by the NUW in any representative capacity. Therefore, there is no evidence of any agency relationship.

[78] He also submits that previous authorities have established that he must have intended to act as a representative of the NUW, or must have engaged in the conduct in the course of the NUW’s affairs or activity. Both he and the NUW have also denied any form of representative relationship, and he cannot be said to have been acting in the course of the Unions’ affairs. He also submits that there is no evidence of him having been held out by the NUW as having authority to act on its behalf, and there is no evidence of any of the employees, who appointed him as a bargaining representative, having relied on any such representations. Therefore, no apparent authority can be imputed to him.

[79] He submits instead that he is “… an independent bargaining representative acting on behalf of the employees who have appointed him.” 95

[80] I am satisfied, in conclusion, that the following evidence is relevant to the question of whether Mr Soueid can be said to have been engaging in conduct at the direction, or with the consent or agreement (whether express or implied), of an official of the NUW where that direction, consent or agreement is within the scope of the actual or apparent authority of that official. Much of this evidence has been referred to already.

[81] Mr Soueid was originally asked to take on the role of bargaining representative at the Linfox site in Altona by an official of the NUW, Mr Heath Lamaro. He knew Mr Lamaro because he was the Union organiser at the worksite where Mr Soueid was employed and where he acted as an NUW delegate. His evidence indicates that he understood at the time he was approached by Mr Lamaro that he was asked to take on the role because the NUW was not able to represent the employees at the Linfox site as a bargaining representative. He agreed to be involved without any knowledge of the Linfox worksite, and in circumstances where he had not had any previous contact or dealings with the employees who subsequently appointed him as a bargaining representative. He was also not aware of what claims were to be pursued in the negotiations. The contact details of the employees were also provided to him as well. In addition, when Linfox objected to his involvement he informed the employees by email that “we are getting legal advice,” 96 and his evidence indicates he then made contact with another official of the NUW, Mr Toner, in order for this advice to be obtained.

[82] I am satisfied, in response that, the evidence establishes that Mr Soueid engaged in this conduct both at the direction and with the consent or agreement of officials of the NUW. I am also satisfied that this was within the scope of the authority of the officials involved. For example, the evidence details the initial attempts by the NUW to be directly involved as a Union bargaining representative in the negotiations with the tanker drivers at the Linfox site. When this request was refused by Linfox the evidence then sets out the attempts by the NUW to continue to have some involvement or representation in the bargaining process. This included a solicitor from Holding Redlich being instructed by the NUW to act as a bargaining representative. This was to occur by an employee at the Linfox site being appointed as a bargaining representative and that person then in turn appointing the Solicitor as his bargaining representatives. The details of these arrangements are set out in emails dated 5 and 7 March from Mr Toner, an official of the NUW, to the Solicitor, Mr Willis. In the second email Mr Toner also sets out details of the log of claims to be pursued in the negotiations. These actions confirm that these officials were acting within their authority when the approach was subsequently made to Mr Soueid to be a bargaining representative as part of this process, and this occurred as part of a co-ordinated strategy to attempt to maintain some involvement in the bargaining process at Linfox, in circumstances where the NUW did not have the ability to be directly involved.

[83] I am also satisfied that it is open to the Commission to find that the employees who appointed Mr Soueid as their bargaining representative did so on the basis of a belief that he was acting with a direction and the authority of the NUW. The evidence indicates that at the time they made this appointment they had never met Mr Soueid, and had not had any previous contact with him. The appointment forms that they completed were provided to them by the NUW. It is clear, firstly, that the NUW created the link between the four employees and Mr Soueid. I am satisfied that it is also reasonable to assume that the employees were only prepared to go with this “unknown quantity” on the basis of assurances received from the NUW that Mr Soueid had the endorsement and authority of the Union to act on their behalf. I am also satisfied that it is fanciful in the face of this evidence to suggest he was simply acting in some form of private capacity

Conclusion

[84] I am satisfied, in conclusion, that Mr Soueid was engaged in conduct at the direction or with the consent or agreement (whether express or implied) of an official or officials of the NUW in circumstances where that direction, consent or agreement was within the scope of the actual or apparent authority of that official or officials and that, as a consequence of s.793, his conduct for the purposes of the Act is taken to have also been engaged in by the NUW.

[85] I am also satisfied that it has not been established that the NUW is entitled to represent the industrial interests of the employees at Linfox in relation to the work that will be performed under the proposed Agreement. It follows that Mr Soueid cannot be a bargaining representative under s.176(3) of the Act while he is acting within the authority of the NUW. An application for a bargaining order can only be made by a bargaining representative. As Mr Soueid is not a bargaining representative then he cannot make application for a bargaining order. His application is accordingly dismissed.

COMMISSIONER

Appearances:

J Tierney of Counsel for the Applicant.

M Toner for the National Union of Workers.

J Forbes for Linfox Australia Pty Ltd.

T Walton for the Transport Workers’ Union of Australia.

Hearing details:

2018,

Melbourne and Sydney (video hearing):

May 22.

1 AE410659.

2 Re Soueid[2018] FWC 2722.

3 Fair Work Act 2009 (Cth) s 228.

4 Ibid, s 229.

5 Ibid, s 230.

6 Ibid, s 231.

7 Letter from Darren Jones to Mehare Gebrat, dated 17 April 2018, Attachment 1 to Form F32 – Application for a bargaining order, filed 27 April 2018.

8 Ibid.

9 Transcript, 22 May 2018, PN669.

10 Letter from Applicant to Daren Jones, dated 23 April 2018, Attachment 2 to Form F32 – Application for a bargaining order, filed 27 April 2018.

11 Ibid.

12 Ibid.

13 Exhibit TS1, [14].

14 Ibid, [16].

15 Ibid, [17].

16 Transcript, 22 May 2018, PN580.

17 Ibid, PN577.

18 Ibid, PN588.

19 Ibid, PN613.

20 Ibid, PN627.

21 Ibid, PN634.

22 Ibid, PN681.

23 Ibid, PN700 – PN 704.

24 Ibid, PN715 – PN716.

25 Exhibit LF2.

26 Transcript, 22 May 2018, PN847 – PN848.

27 Ibid, PN871.

28 Ibid, PN872.

29 Ibid, PN851.

30 Ibid PN855.

31 [2014] FWC 7469 [64].

32 Ibid, PN859.

33 Ibid, PN874.

34 [1985] 8 FCR 27.

35 [2016] FCAFC 78.

36 Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78 quoting NMFM Property Pty Ltd v Citibank Ltd (No 10) (2000) 107 FCR 270, 550 [1244].

37 Transcript, 22 May 2018, PN889.

38 Ibid.

39 Ibid.

40 Australian Nursing and Midwifery Federation v Kaizen Hospitals (Essendon) Pty Ltd [2015] FCAFC 23.

41 (2004) 218 CLR 451.

42 Ibid, [36].

43 Transcript, 22 May 2018, PN899.

44 Ibid, PN1019.

45 Exhibit LF4, [19].

46 Ibid, [20].

47 Ibid, [23].

48 Ibid, [27].

49 Ibid, [29].

50 Ibid.

51 Ibid, [31].

52 Ibid, [33].

53 Ibid, [37].

54 Ibid, [40].

55 Ibid, [43].

56 Ibid.

57 Transcript, 22 May 2018, PN808.

58 Ibid, PN826.

59 Exhibit LF4, Attachment DJ-20.

60 Ibid, [46].

61 Ibid, Attachment DJ-23.

62 Transcript.

63 Transcript, 22 May 2018, PN927-PN930.

64 Ibid, PN935.

65 Ibid, PN939.

66 Ibid, PN86.

67 Ibid, PN101.

68 Ibid, PN940.

69 Fair Work Act 2009 (Cth) s 176(3).

70 Transcript, 22 May 2018, PN943.

71 Ibid, PN944 – PN947.

72 Ibid.

73 Fair Work Act 2009 (Cth) s 12.

74 Ibid.

75 Ibid, s 793.

76 Transcript, 22 May 2018, PN951.

77 Ibid, PN953.

78 Ibid.

79 Ibid, PN954.

80 Ibid, PN955.

81 Ibid, PN979.

82 Ibid, PN980-984.

83 Ibid, PN577.

84 Ibid, PN580.

85 Ibid, PN927.

86 Ibid, PN929.

87 Ibid, PN930.

88 Fair Work Act 2009 (Cth) s 176.

89 Ibid, s 12.

90 Ibid.

91 Fair Work Act 209 (Cth) s.793(1)(b).

92 Australian Workers’ Union v Leighton Contractors Pty Ltd [2013] FCAFC 4, [87].

93 Ibid, [90].

94 Ibid, [92].

95 Transcript, 22 May 2018, PN889.

96 Ibid, PN939.

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