Transport Workers' Union of Australia v Transit (NSW) Services Pty Ltd

[2016] FWCFB 997

[2016] FWCFB 997

REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Transport Workers' Union of Australia
v
Transit (NSW) Services Pty Ltd t/a Transit Systems
(C2015/8219)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER MCKENNA	SYDNEY, 1 MARCH 2016

Appeal against decision of Senior Deputy President Hamberger at Sydney on 18 December

2015 in matter number B2015/1709.

[1]        On 19 December 2015 the Transport Workers’ Union of Australia (TWU) lodged a

notice of appeal in which it sought permission to appeal and appealed an ex tempore decision

of Senior Deputy President Hamberger given on 18 December 2015 (Decision). In his

Decision the Senior Deputy President dismissed an application made by the TWU for

bargaining orders under s.229 of the Fair Work Act 2009 (FW Act). That application related

to bargaining for an enterprise agreement to cover bus drivers employed by Transit (NSW)

Services Pty Ltd t/a Transit Systems (Transit). The TWU was a bargaining representative for

a significant number of Transit’s bus drivers.

[2]        In its notice of appeal, the TWU sought an expedited hearing of its appeal on the basis

that Transit had arranged for the enterprise agreement it had proposed to be voted upon by

employees on 22 December 2015. The bargaining orders which the TWU had sought before

the Senior Deputy President would have, if granted, restrained Transit from conducting such a

vote until it had engaged in three further bargaining meetings with the TWU, had given

genuine consideration to the TWU’s claim and had responded to that claim in detail.

[3]        Expedition was granted, and the appeal was heard on 21 December 2015. Because the

appeal, by necessity, was listed so quickly, the TWU was not in a position to place before us

at the hearing all the evidence or the transcript of the hearing before the Senior Deputy

President. Shortly after the end of the hearing, we announced our decision based on the

limited material before us. We granted permission to appeal, dismissed the appeal, and

indicated that we would give our full reasons in due course. We now give those reasons.

[4]        The current enterprise agreement applying to Transit’s bus drivers reached its nominal

expiry date on 30 June 2015. Negotiations for a new agreement commenced on the same day

and continued on various dates in July, August and September 2015. In early September 2015

Transit sought that employees vote upon the enterprise agreement which it proposed at that
[2016] FWCFB 997

time. The vote occurred on 15 September 2015, and the proposed agreement was rejected by

92% of those who voted.

[5]        There were then further bargaining meetings in October and November 2015. At the

beginning of December 2015 Transit sought that employees vote again on its proposed

enterprise agreement, which in substance was the same as the one they had voted upon on 15

September 2015 with the addition of a $1,000 “sign-on” bonus. The vote took place on 10

December 2015, and the result was 134 votes in favour and 159 against.

[6]        On 14 December 2015 Transit wrote to its employees informing them that it would

conduct a further vote upon the same proposed enterprise agreement (save that the date for

payment of the sign-on bonus was different) on 22 December 2015. It appears it was this

communication which led to the TWU making its application for bargaining orders.

[7] Section 229 of the FW Act sets out the circumstances in which an application for a

bargaining order can be made. There was no issue before us that the TWU’s application was

competent. Section 230 identifies the circumstances in which the Commission may make a

bargaining order. Section 230(3) in particular provides:

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.

[8]        The “good faith bargaining requirements” referred to in s.230(3)(a)(i) are set out in

s.228 as follows:

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining

representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially

sensitive information) in a timely manner;

[2016] FWCFB 997

(c) responding to proposals made by other bargaining representatives for the

agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining

representatives for the agreement, and giving reasons for the bargaining

representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of

association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the

agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the

agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be

included in the agreement.

[9]        Before the Senior Deputy President, the TWU contended that Transit had breached the

good faith bargaining requirements in a number of respects including the following:

(1)	A Transit manager had issued a notice sometime prior to the vote scheduled for
10 December 2015 which was headed “Vote YES” and contained some
arguments in support of that proposition. It ended by stating “WE ENDORSE A
YES VOTE”, and below appeared the signatures and names of Kiril
Veljanovski and Ivan Filipovic, who were each described as “Consultative
Committee Representative”. Mr Veljanovski was a TWU delegate. After a
complaint was made by the TWU, the notice was later re-issued without Mr
Veljanovski’s signature (although there was no doubt he had originally agreed
to sign it, albeit it was suggested by the TWU that he did so under pressure).
The TWU contended that the notice was misleading because it was issued by
the employer but purported to represent the views of employees, gave the
appearance that the TWU endorsed the proposed agreement when it did not,
and gave the false impression that the Consultative Committee also endorsed
the notice.
(2)	Transit’s letter of 14 December 2015 to employees informing them that there
would be a further vote on 22 December 2015 on the enterprise agreement
contained the statement: “As most of you would be aware, this Agreement was
endorsed by the majority of employee elected Consultative Committee
representatives for a yes vote”. This was said to be false or at least misleading
because the Consultative Committee had never endorsed Transit’s proposed
agreement, and it appeared that Transit was referring to the views only of two
out of the three non-TWU representatives on the Consultative Committee.
(3)	The conduct of a further ballot was objectionable since it was likely to lead to
voter confusion and fatigue, in the context of Transit’s misleading

[2016] FWCFB 997

communications. Additionally, because the ballot was being held at a time after

school holidays had commenced, it would lead to difficulties in the TWU being

able to communicate effectively with its members and to low participation

because many drivers were not at work.

[10]      It is not entirely clear to us which specific provisions of s.228(1) were contended by

the TWU to have been contravened by Transit except that it appears the TWU at least

contended that Transit had engaged in unfair conduct that undermined collective bargaining

contrary to s.228(1)(e).

[11]      In the Decision the Senior Deputy President stated that he was not satisfied that

Transit had failed to meet the good faith bargaining requirements. Relevantly, he found that

the notice issued in advance of the 10 December 2015 ballot did no more than express the

views of Mr Veljanovski and Mr Filipovic, who had signed the notice, and that the impugned

statement in the letter of 14 December 2015 was not misleading in any significant way and

was technically correct. He also stated that he was satisfied that no employee could

reasonably hold the belief that the TWU supported a positive vote for Transit’s proposed

enterprise agreement. In relation to the further ballot, the Senior Deputy President expressed

his satisfaction that Transit was entitled to conduct a further vote given the “relatively tight

vote the last time round”. He dismissed the TWU’s application on the basis of those findings.

[12]      The TWU submitted that the Decision was in error in the following respects:

 Transit’s conduct was not assessed in whole; each individual action was assessed

in isolation.

	The Senior Deputy President failed to take into account that the further ballot
would be held at a time when many drivers would be unavailable in circumstances
where the same agreement had already been rejected at a ballot with an 86%
turnout, the TWU would have restricted access to employees and Transit had been
publishing misleading information suggesting that a majority of employee
representatives favoured making the agreement proposed by Transit.

 The Senior Deputy President erred in failing to find that Transit’s

communications were misleading, and in particular failed to find that, objectively,

the communications were likely to mislead employees into believing that the

majority of employee representatives endorsed the proposed agreement.

	The Senior Deputy President considered that Transit’s communications had to be
“seriously misleading”, not just misleading, in order to be objectionable.
	It was not open for the Senior Deputy President to find that Transit’s conduct,
viewed as a whole, was not unfair conduct which undermined collective
bargaining.

[13]      We decided to grant permission to appeal in this matter because we considered that the

appeal raised one issue of potential general application, namely whether the particular

procedure adopted by an employer in respect of the conduct of a vote upon a proposed

enterprise agreement was a matter which was relevant to compliance with the good faith

bargaining requirements. The FW Act is not prescriptive about the procedures for the conduct
[2016] FWCFB 997

of a ballot to vote upon a proposed non-greenfields enterprise agreement, but one of the

requirements for approval of non-greenfields enterprise agreements by the Commission (in

s.186(2)(a)) is that the agreement “has been genuinely agreed to by the employees covered by

the agreement”. Section 188 defines when employees have genuinely agreed to an enterprise

agreement, and the definition in that section requires that the Commission be satisfied that

there has been compliance with a number of separately prescribed steps to be taken prior to

the conduct of a vote and that the agreement has been made in accordance with whichever of

the employee voting requirements in subsections 182(1) or (2) is applicable. Additionally,

s.188(c) requires that the Commission be satisfied that “there are no other reasonable

grounds for believing that the agreement has not been genuinely agreed to by the employees”.

[14]      One of the principal concerns raised by the TWU regarding the timing of the proposed

further ballot, namely that because of the school holiday break employees might not be

available to vote, is one which, we consider, would properly arise for consideration under

s.188(c) if Transit’s enterprise agreement came before the Commission for approval. If a

ballot upon a proposed agreement was engineered in a way which deprived a substantial

number of employees a reasonable opportunity to cast a vote, or otherwise involved a

manipulated result which vitiated its legitimacy, then these would be matters which would be

of relevance under s.188(c).

[15]      Section 228 is, we consider, concerned with the process of bargaining for an enterprise

agreement, not the mechanics of the conduct of a balloting process for an enterprise

agreement. Paragraphs (a)-(d) and (f) of s.228(1) are specifically concerned with particular

aspects of the bargaining process, and we do not consider that the expression “refraining from

capricious or unfair conduct that undermines freedom of association or collective

bargaining” in s.228(1)(e) should be read as applicable to conduct which is not part of or

connected to the bargaining process.

[16]      That is not to say that issues about the timing or conduct of a vote may not impinge

upon the bargaining process. If, for example, an employer seeks to put an agreement to a vote

without having participated in any meetings with employee bargaining representatives and/or

without having responded to or genuinely considered proposals advanced by employee

bargaining representatives, that might ground a finding that the good faith bargaining

requirements had not been met and might justify the making of a bargaining order restraining

the conduct of the vote until those steps had been taken (see, for example, CEPU v Contact

1

Electrical Pty Ltd ). However in this case the TWU’s concern about the timing of the ballot

during school holidays was not tangibly connected with the bargaining process, since it would

(presumably) equally have arisen even if there was no complaint about the bargaining process

at all. For that reason we do not consider it was relevant to the consideration of whether the

good faith bargaining requirements have been met.

[17]      In any event, we do not consider that there was any real substance to the TWU’s

concern. The ballot was to be conducted using an electronic balloting method, so that

attendance at work would not be required in order to vote. The Senior Deputy President did

not make specific mention of this issue in the Decision, but we do not consider that he erred

by not finding that the timing of the further ballot, either in isolation or in combination with

other matters, meant that the good faith bargaining requirements were not met.
[2016] FWCFB 997

[18]      Further, we do not consider that the Senior Deputy President erred in not finding that

the conduct of the further ballot itself (that is, irrespective of its timing) amounted to a failure

to meet the good faith bargaining requirements. There was no evidence that, at the time

Transit announced that a further ballot would be conducted, there was any outstanding request

by the TWU for further meetings or that the TWU had advanced any new proposals that

required consideration. If it had been otherwise, then Transit’s almost immediate recourse to a

further ballot may have made available the conclusion that the good faith bargaining

requirements had not been met. However the evidence to which we had access rather

suggested that the negotiations were at an impasse. In that circumstance the conduct of a

further ballot would not seem to us to be unfair conduct which undermined collective

bargaining.

[19]      The communications issued by Transit which were impugned by the TWU did, we

accept, involve a degree of sharp practice and carried with them some potential to mislead.

However, having regard to the capacity of the TWU to robustly communicate its own position

to employees, we do not consider that the Senior Deputy President’s finding that no employee

could reasonably hold the belief that the TWU supported voting for Transit’s proposed

enterprise agreement was in error. In that context, we do not consider that Transit’s conduct in

issuing the communications, even if able to be characterised as “unfair”, undermined

collective bargaining or had the potential to do so.

[20]      The Decision was therefore not attended by appealable error, and the appeal was

dismissed.

VICE PRESIDENT

Appearances:

I. Taylor SC with O. Fagir of counsel for the Transport Workers' Union of Australia.

G. Hatcher SC with G. Boyce of counsel for Transit (NSW) Services Pty Ltd t/a Transit

Systems.

Hearing details:

2015.

Sydney:

21 December.

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[2012] FWA 8137