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;…

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 3952
Decision Date: 4 JULY 2018

CaseChat Overview and Summary

The case involved Tarek Soueid, who applied for a bargaining order under section 244 of the Fair Work Act 2009. The application was heard by the Fair Work Commission, presided over by Commissioner Wilson. The dispute centred around whether Soueid, who was an independent contractor, was entitled to be classified as an employee, thus enabling him to access the benefits and protections provided under the Fair Work Act.

The primary legal issue before the Commission was whether Soueid's working arrangement with the respondent, an accounting firm, constituted an employment relationship. This involved examining the nature and extent of control the firm exercised over Soueid's work, the level of economic dependency, and the integration of Soueid's work into the firm's business. The Commission had to determine if the arrangement met the criteria for an employment relationship as defined by section 13 of the Act.

Commissioner Wilson concluded that Soueid's work arrangements did not meet the threshold for an employment relationship. The evidence indicated that Soueid had a degree of control over his work and was not economically dependent on the firm. The Commission found that while there were elements of an employment relationship, such as the provision of client work and the expectation of availability, these were not sufficient to classify the arrangement as employment. As a result, the application for a bargaining order was dismissed. The decision was based on a comprehensive analysis of the evidence, the statutory definition of employment, and relevant case law. The firm's right to determine the nature of the working relationship was upheld.

Orders