The Australian Workers' Union v Mount Baw Baw Resort Management Board

[2014] FWC 2106

[2014] FWC 2106

FAIR WORK COMMISSION

EX TEMPORE DECISION

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

The Australian Workers’ Union
v
Mount Baw Baw Resort Management Board
(B2014/634)

DEPUTY PRESIDENT SMITH MELBOURNE, 4 APRIL 2014

Bargaining in good faith.

[1] The following decision, now edited, was issued during proceedings conducted on 27 March 2014.

[2] This is an application made pursuant to s.229 of the Fair Work Act 2009 (the Act) for orders to be made against the Mount Baw Baw Resort Management Board in relation to bargaining for a new enterprise agreement.

[3] The previous agreement the Mount Baw Baw Resort Management Board Enterprise Agreement 2010 has a nominal expiry date of 2 March 2013. The parties have been negotiating for a new agreement since that time.

[4] I am advised that an in principle agreement was reached between the employer and the employees but this agreement was rejected by the Department of Treasury and Finance in the Government of Victoria. The employees then conceded all of the requests made by the Department of Treasury and Finance and a further full agreement was reached on 17 March 2014.

[5] Now it is the submission of The Australian Workers’ Union (AWU) that it has been advised that the Mount Baw Baw Resort Management Board has been directed to cease bargaining. This is denied by Mr Maxfield, appearing on behalf of the Board, who indicates that bargaining is still continuing. This matter raises for consideration a number of issues relevant to the provisions of the Act regarding bargaining in good faith.

[6] I must focus on the operation of s.229 of the Act.

229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Multi-enterprise agreements

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

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

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

[7] Section 230 of the Act provides that certain prerequisites must be met before an order can be made.

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).

[8] Section 231 of the Act provides:

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.

[9] In this connection I am satisfied that an application has been made which is not inconsistent with s.229(3) of the Act. I am not so certain about the operation of s.229(4)(b) and I will need to take further submissions from the AWU. Whilst there is some uncertainty about this matter, generally speaking it would appear that a failure by the employer to accept that an agreement is made in circumstances where employees acquiesced to the demands of the employer could constitute a failure to bargain in good faith. However, given the uncertainty of the role and authority of both the Mount Baw Baw Management Board and the Department of Treasury and Finance I shall re-list this matter at 2.15 pm on Thursday, 10 April 2014 so that the Department of Treasury and Finance may have the opportunity to be heard before further consideration is given to what orders may be made if any and against whom.

DEPUTY PRESIDENT

Appearances:

C. Winter with K. Shepherd for the Australian Workers’ Union.

I. Maxfield with S. Ord on behalf of Mount Baw Baw Resort Management Board.

Hearing details:

2014.

Melbourne:

March, 27.

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