United Workers’ Union

[2020] FWC 3246

[2020] FWC 3246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

United Workers’ Union
(B2020/256)

COMMISSIONER WILSON MELBOURNE, 22 JUNE 2020

Application for a Bargaining Order

[1] An application has been made by the United Workers’ Union (UWU) pursuant to s.229 of the Fair Work Act 2009 (the Act) for a bargaining order in respect of enterprise bargaining at Davies Bakery Pty Ltd (Davies Bakery).

[2] Context for the application is given by the fact that the Davies Bakery employees are not presently covered by an agreement, but instead have their wages regulated primarily by the applicable industry award, the Food, Beverage and Tobacco Manufacturing Award 2010. Davies Bakery is a family owned business presently within the fifth generation of family owners. The UWU covers the employees and on behalf of those employees who are its members has been attempting engagement with Davies Bakery since 2019.

[3] In mid-2019 the matter was the subject of proceedings before Commissioner McKinnon for a Majority Support Determination. The Commissioner’s decision in the matter, given on 22 October 2019, was to issue such a determination, 1 however in the course of her reasoning she noted that the predecessor of the UWU had been endeavouring since 2016 to hold discussions with employees and recruit them as members. It was submitted to the Commissioner that at the time of her consideration of the Majority Support Determination matter that “more than half of employees engaged in production, packaging, warehouse and dispatch roles at Broadmeadows” wanted to bargain for an enterprise agreement. Her decision on the subject noted that in the week prior to 16 July 2019 there were 240 employees engaged in those various roles; however, that did not include those employees within the “administration” or “distribution Davies Bakery” organisational groupings.

[4] Having had a Majority Support Determination issued, some progress was made towards bargaining for an enterprise agreement. However, on 29 November 2019 an application for a bargaining order was made to the Commission which became the subject of a conciliation conference before me on 22 January 2020. 2 After the application was made and before the conciliation conference there were two bargaining meetings held, one each in December 2019 and one in January 2020. The November 2019 bargaining order application is not the same as the one presently before me and was concluded with a Statement being issued by me for a framework for the convening of further bargaining meetings.

[5] After the January 2020 Statement two further bargaining meetings were held in February 2020, however none were held after, including for reason of events in March 2020, including those associated with the COVID-19 pandemic. While no bargaining meetings were held after February 2020 there was some interaction between the UWU and Davies Bakery, including at the end of April 2020 and more recently on the subject of when bargaining might feasibly resume.

[6] The lack of progress with bargaining has led to the UWU making a fresh application to the Commission for a bargaining order, filed on 4 May 2020.

[7] The orders sought by the UWU against Davies Bakery are, in short form, for meetings to be scheduled and take place, with the proposed order framed in the following terms:

“A. Davies Bakery Pty Ltd (Davies Bakery), a bargaining representative for a proposed enterprise agreement, must attend and participate in a bargaining meeting (the next bargaining meeting) with United Workers Union (UWU) in respect of an agreement in accordance with the Commission’s determination [PR713609], at a time to be agreed by the parties not later than ten days from the date of this order.

B. Davies Bakery must attend and participate in at least three further bargaining meetings with UWU in the six week period following the next bargaining meeting, at times to be agreed by the parties.

C. Davies Bakery will comply with the framework for the convening of bargaining meetings set out in the Commission’s Statement of 22 January 2020 (the Statement), save that:

a. until such time as the parties agree otherwise, bargaining meetings will occur via video conferencing in a manner to be arranged by the parties.”

[8] The draft orders originally sought by the UWU were wider, seeking facilitation of access for the union to its delegates; however the union advised at the start of the hearing that it would not press that aspect of its application, thereby removing the original draft order at Item (C)(b).

[9] As amended, the union’s case is only that bargaining orders are warranted for the reason that there has been a failure by Davies Bakery to comply with s.228(1) obliging a bargaining representative to attend, and participate in, meetings at reasonable times.

[10] The hearing in relation to the application took place on 17 June 2020 at which both parties appeared. Mr Ben Redford a Director of the UWU appeared with Ms Pareen Minhas a UWU Organiser who also provided a witness statement and gave short oral evidence but was not required for cross-examination by Davies Bakery. The Respondent provided written and oral submissions, however, did not provide formal evidence to the Commission and was represented by its Managing Director, Mr Matthew Davies and Ms Bernie Relf its Human Resources Manager.

RELEVANT BACKGROUND SINCE MAJORITY SUPPORT DETERMINATION

[11] The Majority Support Determination was issued by Commissioner McKinnon on 22 October 2019.

[12] The first bargaining meeting took place on 18 December 2019. Ms Minhas’s evidence is that in the first meeting the UWU representatives detailed each claim that formed part of the union’s log of claims. She also sought agreement to a schedule of meeting dates which was not agreed by the Davies Bakery representative, Ms Relf. 3

[13] The second bargaining meeting was held on 17 January 2020. In that meeting Ms Relf provided the union with a note about Davies Bakery’s views about bargaining generally including the following:

“Davies Bakery position.

•  Davies Bakery believe that the current Food, Beverage and Tobacco Manufacturing Award 2010, that has been negotiated in consultation with input from representatives of FWC Commissioners, industry specialists and union organisations, provides comprehensive terms and conditions of employment and has and continues to serve employees since 2010.

•  Davies Bakery intent is to provide ongoing and meaningful employment for Employees.

•  Davies Bakery’s aim during these negotiations is to have a comprehensive document that outlines terms and conditions of employment.

•  The Agreement will contain a wage outcome that takes into account all aspects of the Agreement and any negotiated outcomes.

To ensure Davies Bakery remains competitive and to ensure ongoing and meaningful employment for employees, the following will be reviewed and discussed as part of any wage outcome.

•  Spread of Ordinary Hours

•  Rosters

•  Overtime rates

•  Casual rates

•  Shift Allowances

•  Classifications”. 4

[14] Ms Minhas also recollected that Ms Relf had said words in the 17 January 2020 meeting to the effect that Davies Bakery did not have a wage offer and would not be in a position to make one until it reviewed the net impact of the enterprise agreement. 5

[15] The original bargaining order application was lodged by the UWU on 29 November 2019, 6 predating each of the first two bargaining meetings. A conciliation conference in respect of that matter was held by me on 22 January 2020 which led to a Statement being issued by the Commission indicating agreement had been achieved over the dates and venue of two further bargaining meetings and the employees who would attend the meetings, as well as reminding all concerned of the Act’s good faith bargaining requirements:

“The Commission reminds all parties of the good faith requirements of the Fair Work Act 2009, set out in s.228. The Commission particularly draws to the attention of all concerned to the mutual need for disclosure of relevant information; responding to proposals made by the other bargaining representatives in a timely manner; and giving genuine consideration to the proposals of other bargaining representatives as well as responses for the bargaining representatives' own response to those proposals.” 7

[16] Having not heard anything further from the parties about the need for further dealings in relation to the November 2019 application, the November 2019 bargaining order file was closed at the initiative of the Commission on 25 February 2020.

[17] A further bargaining meeting was held on 14 February 2020. Ms Minhas’s evidence is that the meeting was very short, being only approximately five minutes in duration and that it was ended by Ms Relf because of concerns expressed by her about a UWU flyer having misrepresented the company’s position. Ms Minhas’s evidence is that Ms Relf sought a retraction of things said in the UWU flyer, a request which was not met by the UWU. Ms Minhas’s evidence is that the following day Davies Bakery sent email correspondence to all employees to “clarify its position in relation to the classification of employees”, however neither party has provided a copy of that correspondence to the Commission despite being asked to do so.

[18] A fourth and final bargaining meeting was held on 28 February 2020. Ms Minhas reports Ms Relf as having said in that meeting that a number of the UWU proposals were not agreed and that the Company was not in a position to put a wage offer on the table. 8 There is nothing though before me regarding the substance of which union proposals were not agreed and which may be capable of further discussion.

[19] There have been a number of endeavours by the UWU since 28 February 2020 to obtain agreement for further bargaining meetings. These included:

•  Proposing arrangements in early March for a further meeting to be held on 18 March 2020. However, on 13 March 2020 Ms Relf communicated that the planned face-to-face meeting was cancelled, referencing the need to minimise contact during the COVID-19 pandemic. In doing so she communicated that “[w]e will look into options for potential video conferencing at a date to be determined”. 9

•  Through a notice dated 20 March 2020, the UWU sought to exercise its right of entry to the company’s premises however they were rebuffed by Davies Bakery with it being said to the UWU by Ms Relf that such a visit would not fall into an “essential visitor” category. After explaining that bakery employees had been separated into teams as a coronavirus precaution, Ms Relf’s letter referred to a communication to employees about visitors to the work site and explained that the policy within the communication meant the union would be excluded:

“The Communication to employees, in part referenced the following.

2. VISITORS TO OUR SITE

•  We are restricting access to our site to essential visitors only. The Site Leadership Team (SLT) will determine who are essential visitors.

Taking into consideration, our updated processes and social distancing guidelines that have been put in place from the Australian Government and Australian and Victorian Health authorities, the SLT does not believe that your visit falls into the essential visitors category.

Therefore, you will not be granted access to site on Monday 23 March. We don't envisage our decision changing in the foreseeable future.

I am sure you are aware of avenues available to yourself if you don't agree with our decision.

Bernie.” 10

•  On 30 March 2020 the union proposed three dates in April 2020 for the next bargaining meeting. It also sought to be given the opportunity for a phone hook up with its delegates in company paid time. 11 The union also sought a reconsideration of the Respondent’s refusal to allow the union entry to its premises, arguing that the refusal may not be in compliance with the Act.12

•  On 6 April 2020, Ms Relf communicated that Davies Bakery had not changed its views and would not permit the union entry to its premises. 13 The union also received a further email from Ms Relf, dated 6 April 2020 saying that it was not currently in a position to resume enterprise agreement negotiations. Ms Minhas’s witness statement also claims that “[t]his email also said words to the effect that paid time for UWU delegates to have a phone hookup with UWU to hold discussions in relation to the bargaining meeting would not be permitted”; however that is not said in the email she references.14

•  On 20 April 2020, the union provided Davies Bakery with a formal “concerns” letter putting the Respondent on notice that the union considered it was not bargaining in good faith. After reviewing the union’s perspective of the background set out above, the correspondence communicated these matters:

“UWU concerns

11. UWU has concerns by your conduct generally and by your correspondence of 6 April 2020 you are breach of the good faith bargaining requirements outlined in section 228 of the Act:

a. You have refused to have any "EA negotiations" even through video conference. By doing so you have failed to attend and participate in meetings at reasonable times (section 228(l)(a).

b. You are refusing to permit UWU permit holders access to your premises, and are refusing to allow UWU delegates paid time to have discussions with UWU officials. By doing so you are not refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining (section 228(1)(t)).

Action to deal with these concerns

12. To deal with these concerns you should take the following action immediately, or no later than close of business Wednesday 22 April 2020:

a. communicate with UWU care of Pareen Minhas, to advise as to the dates and times you will be available to participate in meetings over the next few weeks;

b. in your communication in (a) confirm that you will comply with the bargaining arrangements outlined in the FWC statement of 22 January 2020, including by facilitating relevant delegates and Union officials to attend meetings via video conference.

c. in your communication in (a) confirm that UWU delegates will be permitted to participate in a weekly meeting via video conference of up to one hour's duration during paid time to have discussions with a relevant official about the enterprise bargaining process that has begun and is continuing.

Action by UWU

13. In the event that you fail to take this action within the timeframe outlined, we will commence action without further notice.

Please contact Ben Redford of our office on [telephone number] if you wish to discuss this matter.

Yours sincerely

Ben Redford
Director
United Workers Union”. 15

•  The concerns letter elicited a response from Davies Bakery in the form of a proposal to meet in a video conference, which eventually took place on 29 April 2020. Ms Minhas’s evidence on the subject includes that Ms Relf said “the business has incurred significant costs due to the COVID-19 situation, and a reduction of volume, and as a result of this the Company is not in a position to hold bargaining meetings until everything settles”; this may be reviewed in mid-May, with recommencement of negotiations in early to mid-June. 16 When the union requested these matters be confirmed in writing, Ms Relf demurred; when the subject of union entry was raised, she reiterated that Davies Bakery did not see the union as critical visitors and that the union could contact its members using technology.17 In relation to the union’s claim for paid time off for delegates to attend bargaining, Ms Minhas records Ms Relf as saying that “the Company has never provided paid time and will not be doing so during this COVID-19 period. She said words to the effect that workers can use technology on their lunch breaks and outside of work to speak to the union”.18

[20] The current application for a bargaining order was lodged in the Commission on 4 May 2020.

[21] On 18 May 2020, Mr Davies, the Respondent’s Managing Director, provided a communication to its staff addressing its trading situation which had been significantly affected by the COVID-19 pandemic. Amongst other matters Mr Davies advised employees the company had sought assistance under the Australian Government’s JobKeeper program. This was:

“As a result of the reduced demand for pastry products as well as a reduced demand for our fresh bread products, Davies Bakery has applied to the Federal Government for the JobKeeper wage subsidy. You will be required to complete the JobKeeper Nomination Notice which will be sent to you by email on Tuesday 19 May 2020.

The JobKeeper Payment supports eligible employers to remain connected to their employees and to quickly re-activate their operations when the crisis is over.

Because of the above circumstances, we are proposing to temporarily cease producing pastry from 30 May 2020.” 19

[22] The same communication foreshadowed a number of changes within the business to issue JobKeeper Enabling Directions and provided employees with an “invitation to give your views about the impact of the proposed changes to you”. Shortly after, on 20 May 2020, the UWU wrote to Davies Bakery expressing concern that the Respondent might not meet the necessary turnover threshold reduction required to be eligible for JobKeeper payments and reminding the company of its consultation obligations under the Award and the JobKeeper amendments to the Act. 20

[23] On 29 May 2020, the union again wrote to Davies Bakery seeking to reactivate the bargaining process. The full text of the correspondence is as follows:

“Without prejudice save as to costs

Dear Ms Relf

United Workers Union v Davies Bakery Pty Ltd
Fair Work Commission proceedings no B2020/256

As you are aware, the Union has commenced proceedings against you in the Fair Work Commission seeking orders pursuant to the “good faith bargaining principles” set out in the Fair Work Act 2009 (the proceedings).

This matter is currently listed for a hearing to occur sometime during June 2020, ahead of which parties are required to file and serve various materials.

This morning I was instructed that it appears you have qualified for the Federal Government’s “JobKeeper” program after meeting the requirement as to a substantial loss of turnover due to the impact of the COVID-19 pandemic.

The Union is cognisant of the impact the pandemic has had on your business, and the likelihood of a tough economic environment ahead.

With that in mind, I am instructed to advise that our members simply want a commitment from you that the enterprise bargaining process that commenced in late 2019, and that is currently in hiatus, has not been permanently terminated.

To that end, I am further instructed that if you agree to schedule two meetings to discuss the enterprise agreement during July 2020 (dates to be agreed), and a further two meetings to occur during August 2020 (dates to be agreed), the Union will discontinue the proceedings.

The meetings contemplated can occur by video link up, and otherwise should be conducted pursuant to the arrangements that have applied to the bargaining process to date.

In the event that you are not prepared to agree to this proposal, the Union reserves its rights to produce this correspondence in the proceedings before the Commission and, if necessary, on any question of costs.

I look forward to your early response to this proposal, and can be contacted on [telephone number] if you wish to discuss this matter.

Yours sincerely

Ben Redford
Director
United Workers Union”. 21

[24] A reply dated 1 June 2020 was sent by Davies Bakery to the union. However, for some unexplained reason the correspondence was not seen by the union until 16 June 2020. The company’s response communicated the following:

“Dear Mr Redford

United Workers Union v Davies Bakery Pty Ltd
Fair Work Commission proceedings no B2020/256

In response to your correspondence dated 29 May 2020, Davies Bakery is aware the Union has commenced proceedings against Davies Bakery in the Fair Work Commission seeking orders pursuant to the “good faith bargaining principles” set out in the Fair Work Act 2009.

You are correct in stating Davies Bakery has qualified for JobKeeper and the impact the pandemic has had on the business, and the likelihood of a tough economic environment ahead.

This correspondence serves as advice that the enterprise agreement process is in hiatus and has not been permanently terminated.

Davies Bakery expect the negotiations to be meaningful. However, it is currently not clear where Davies Bakery is at, or in what position Davies Bakery will be in the next few months due to the impact of the COVID-19 pandemic.

With the above taken into consideration, Davies Bakery agree to meet via video conference in July for one meeting, although unsure as to what any outcomes would be, considering the situation that Davies Bakery currently finds itself in.

Yours sincerely
Bernie Relf
HR Manager”. 22

LEGISLATION

[25] The Act provides for applications to be made for bargaining orders with s.229(1) providing that a bargaining representative for a proposed enterprise agreement may apply for such orders under s.230. Subsections 229(4) and (5) provide relevant procedural requirements for the making such 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.”

[26] Relevant to an application made under s.229(4)(a)(i) are the “good faith bargaining requirements” which 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;

(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.

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.”

[27] Pursuant to s.230 a bargaining order may be made by the Commission if an application for the order has been made; the requirements of the section are met in relation to the agreement and “the FWC is satisfied that it is reasonable in all the circumstances to make the order” (s.230(1)). Further the Commission must be satisfied that there is authority for bargaining to have begun and that there is a scope order in relation to the agreement in operation (s.230(2)). Section 230(3) provides requirements pertinent to the good faith bargaining requirements:

“(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.”

[28] Section 230(4) provides that an order issued under the section must be in accordance with s.231, which is in these terms:

“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.”

CONSIDERATION

[29] It is evident from the material before me that:

•  The prerequisite in s.229(1) has been met, with the UWU having members employed by Davies Bakery who would be covered by the proposed agreement; 23

•  S.229(3) causes no impediment to the timing of the application, since no enterprise agreement presently applies to the employees who would be covered by the proposed enterprise agreement;

•  The prerequisites in s.229(4) have been met by the UWU. In this regard:

•  it has given a written notice of its concerns that the good faith bargaining requirements have not been met, or are not being met by Davies Bakery (s.229(4)(a) and (b));

•  That notice was sent on 20 April 2020 and sought a response from the company by the end of 22 April 2020. After contact from Ms Relf on 22 April 2020, the response was given in a video meeting held on 29 April 2020. While the original demand from the union for a response before the close of business on 22 April 2020 could not, especially in the context of the COVID-19 events in April, be found to be the union giving Davies Bakery “a reasonable time within which to respond to those concerns”, the agreement to take the company’s response at a later time, on 29 April 2020 allows a finding by me that the union, in the end, gave a reasonable time for a response (s.229(4)(c)).

•  I am also satisfied that even after the meeting held between the parties on 29 April 2020 and their subsequent communication that the UWU considers Davies Bakery has not responded appropriately to it concerns (s.229(4)(d)).

[30] The hearing before me proceeded on the basis of the UWU pressing only those aspects of its application which relate to the good faith bargaining requirement that bargaining representatives must attend, and participate in, meetings at reasonable times. The essence of the UWU’s argument in this regard is that even now, in late June 2020, there is no substantial commitment on the part of Davies Bakery to program a series of meetings for the purposes of bargaining.

[31] For its part, Davies Bakery indicated in the hearing it was prepared to have one meeting in June and depending on the outcome of that meeting it would schedule another in July. It regarded scheduling four meetings across two months as pointless, given the disruption both within the company and the economy more widely. 24

[32] There have been several endeavours by the UWU to arrange an agreed bargaining meeting schedule. There is plainly a reluctance on the part of Davies Bakery to meet with the UWU for the purposes of bargaining. Some, but not all of that reluctance, is attributable to its obligations in relation to the COVID-19 pandemic or the business consequences flowing from the economic disruption of the pandemic. The reasons they have stated about not meeting with the union have shifted over time.

[33] In the first bargaining meeting held on 18 December 2019, the union requested Davies Bakery agree to a schedule of meeting dates for bargaining, however Ms Relf said the company would not be agreeing to dates. 25 Conciliation in January led to two dates being agreed for bargaining a fortnight apart in February and meetings took place around the agreed dates, however without much success in advancing bargaining itself. An agreed date in March was cancelled as the precautionary effects of the COVID-19 pandemic became apparent. Options put forward to Davies Bakery by the union at the end of March for further meetings were rebuffed for health concerns and the consequential impact on the business in needing to change the way its processes operated.26

[34] The union’s proposal for meetings on four alternative dates in May were rejected apparently not for health reasons, but for business related reasons. Those reasons as given by Ms Relf and recorded by Ms Minhas in her evidence were that “the business has incurred significant costs due to the COVID-19 situation, and a reduction of volume, and as a result of this the Company is not in a position to hold bargaining meetings until everything settles”. 27

[35] In May, the UWU put to Davies Bakery that “if you agree to schedule two meetings to discuss the enterprise agreement during July 2020 (dates to be agreed), and a further two meetings to occur during August 2020 (dates to be agreed)”, 28 the union would discontinue the application which is the subject of this decision. The company’s response again referenced its business needs, and not public health concerns, writing that while it did not seek to put an end to bargaining, it could not commit to a schedule of bargaining meetings because “it is currently not clear where Davies Bakery is at, or in what position Davies Bakery will be in the next few months due to the impact of the COVID-19 pandemic”.29

[36] In the hearing before me, held 17 June 2020, Mr Davies gave the indication referred to above, of one meeting in June and another in July, but that he regarded it as pointless to schedule four meetings. He took this view not only because of what may be happening in his business, and future uncertainties around that factor, but the wider matter of what is happening in the economy more generally. Echoing the good faith bargaining requirement that a bargaining representative must attend, and participate in, meetings at reasonable times, Mr Davies considered that these were not reasonable times to be required to bargain for an enterprise agreement.

[37] The UWU presses that Davies Bakery has not complied with the good faith bargaining requirement that it attend, and participate in, meetings at reasonable times.

[38] It is, of course, the case that the provisions associated with bargaining orders, ss.228 – 231 within Part 2 – 4, Division 8, are within the context of enterprise bargaining generally. Bargaining parties must observe numerous requirements about the commencement of bargaining and the bargaining process. Relevant to Part 2 – 4, it has been held that “[t]he outer limits of the conduct which falls within s 228 is largely dependent upon factual matters which will undoubtedly vary from one situation to another.” 30 The Commission’s role is to assist:

“Whilst the Commission’s role is to facilitate an agreement this should not involve requiring that concessions be made by a negotiating party. An agreement cannot be reached with a person who does not want to agree and negotiations for an agreement cannot take place with a person who does not want to negotiate.” 31

[39] Further, the good faith bargaining obligations do not require a party to make concessions during bargaining or to reach agreement on the terms that are to be included in an agreement. 32 ‘Hard bargaining’ is not uncommon, or indeed inappropriate.33 The features of hard bargaining have been described to include extreme demands, followed by small concessions; attempts to make you flinch; personal insults and feather ruffling; threats and warnings; belittling of opponents; good cop/bad cop tactics.34 Just as hard bargaining may be used, claims may be made that one party is merely ‘surface bargaining’; in effect, merely going through the motions of bargaining without having any intention of reaching agreement.35

[40] Those matters assist by giving a context to the provisions in Part 2 – 4, however do not necessarily resolve the dispute now before the Commission.

[41] Several things may be observed from the material which is now before me. The relationship between the UWU and Davies Bakery is obviously fraught and the trust in each other which would often be sought to be achieved between bargaining parties is simply not present. Having now dealt with the wider dispute between the parties on two occasions and having considered the majority support determination issued by Commissioner McKinnon it is plain that the fractiousness has been going on for some time; it seems it was ever thus.

[42] It must also be observed that the COVID-19 pandemic and the disruption caused by it, in the early stages at least, are very real matters which have legitimately impacted upon the progress of bargaining. There is little doubt that a food services company would need to be very careful about how it structured and continued its operations in those early months of the pandemic when there was heightened community concern about the likely spread and extent of the disease. To do otherwise would be foolhardy. On the other hand, demonstrably the general community situation has improved very significantly. What may have been a legitimate reason several months ago to pause or slowdown bargaining so as to assess its business and operational effects do not necessarily hold true now.

[43] Even so, some consideration at least must be given to the general or economic consequences of the pandemic and their effect on bargaining. The most obvious indicator of the economic effects of the pandemic is the introduction of the JobKeeper subsidy as well as a rising unemployment rate. The JobKeeper subsidy though does not operate within a vacuum or without firm conditions of eligibility; it is plainly only available to firms who are able to establish they have met the relevant revenue decline threshold. While financial information about Davies Bakery circumstances is not before me, it may be inferred from the fact that the company is in receipt of JobKeeper payments that it has suffered a very significant decline in year-on-year revenue. That fact alone will likely mean that the company will, to some extent at least, legitimately have its attentions on matters other than enterprise bargaining as it tries to stabilise or advance its trading conditions. It would also probably unavoidably cast a pall over the likelihood of agreeing to what might be seen as those parts of the union’s claims which incur additional cost.

[44] None of those things though are legitimate reasons not to meet or to bargain.

[45] While it could be that current business conditions or matters of financial prudence militate against the negotiation of an enterprise agreement, that is by no means an automatic conclusion. The progress of bargaining generally in recent months has shown sufficient examples of employees and unions reaching “rescue” agreements with employers designed to stabilise a business’ trading position for it to be clear that merit remains in enterprise bargaining even while uncertainty or bleak conditions abound. It will never be known what employees may be prepared to do to assist Davies Bakery, if such assistance is needed, until the conversation is had.

[46] I accept that it was reasonable for the Respondent to cancel the meeting scheduled for 18 March 2020, and that the uncertainties and instability associated with COVID-19 warranted the cancellation. However, Davies Bakery moved to non-compliance with the good faith bargaining requirements by the end of April, when it failed to agree further meeting dates and arrangements. By that time, the general situation was stable enough for bargaining to resume. The company’s shift in language to the UWU from wanting to avoid adverse public health outcomes to wanting to ensure that bargaining could be accommodated within its operational needs was likely only an attempt to use the general disruption of COVID-19 as a reason for the indefinite delay of bargaining. Nothing of substance was put forward to the union at the time, or to the Commission now, about how or why the company’s operational environment demanded delays to bargaining. What is evident is that Davies Bakery does not see a benefit from bargaining and is likely taking each opportunity it can to avoid the need to do so.

[47] Those considerations lead me to be satisfied that Davies Bakery has not complied with the good faith bargaining requirements because it is not attending, and participating in, meetings at reasonable times. I am also satisfied that Davies Bakery is not likely to comply with this requirement in the future.

[48] Having found that Davies Bakery has not complied with the Act’s good faith bargaining requirements, I consider it is appropriate to issue an Order under s.231.

[49] The UWU seeks that an order be issued directed only to the matter of the number and timing of meetings. I have misgivings about restricting the order to that subject, since I hold two concerns; namely that merely holding unfocussed meetings in which both parties reject the legitimacy or perspective of the other will likely lead to an argument that other parts of s.228 have been breached by either party; and that the past conduct of each party which includes hyper-ventilated statements about the other to the employee base will also likely result in accusations of capricious or unfair conduct, and potentially a breach of s.228(1)(e).

[50] The following example will illustrate why I hold those concerns.

[51] In the third bargaining meeting on 14 February 2020, the Respondent representatives took offence to things which had been said by the union in a flyer issued after the second meeting. Despite me asking the union to provide a copy of that flyer it was not provided. It apparently said words to the effect that “Davies have confirmed that there are workers who are under-classified, but have also said it has over-classified many workers, and are looking at these issues”. 36 Ms Minhas’s evidence about the meeting on 14 February 2020 is that Ms Relf said these things misrepresented Davies Bakery and that the union needed to issue a retraction. When no retraction was given, Ms Relf ended the meeting, which lasted only 5 minutes.

[52] In these proceedings, the Respondent submitted that the assertion of under-classification “is not factual. The Respondent’s representatives did state that there were employees who were over classified”, and that the failure to retract the statement was seen by Davies Bakery as a failure by the UWU to bargain in good faith and that because of that situation, the meeting ended. 37 What this example demonstrates is a woeful lack of bargaining maturity on both sides. Each, frankly, appears to be looking for reasons for bargaining not to work. Failing to accept that the other side might just have made a mistake, or misheard something, will not advance bargaining. Not having the self-awareness to accept that a mistake might have been made and offering to correct the record is simply not going to progress bargaining. On the other hand, demanding a retraction and using the failure to retract as a reason to terminate a meeting is hardly a good way to build a relationship.

[53] The other communications I have seen both between the parties and to employees demonstrate a similar lack of maturity. Without concerted endeavour on both sides to build maturity there will inevitably be further claims of contraventions of the good faith bargaining requirements and, in time, further findings and further orders.

[54] While I hold those concerns, because the matters are not the subject of the union’s application at this time, I will not frame orders on them at this time, but will do two things on the subject; firstly I will recommend certain action designed at controlling the issues about which I am concerned; secondly, I will give liberty to apply to the Commission to either party to seek further or alternative orders to those I now make dealing with the future conduct of each in the bargaining meetings, or about statements to employees about bargaining.

[55] The Recommendation to be issued by me will deal with the matter of preparation for the meeting, the holding of the meeting, and communication of the results of the meeting to employees and are in the form set out below. The Order to be issued will also be in the form set out below, which in substance is the order sought by the UWU.

[56] The matters which must be specified in a bargaining order are set out above. Consistent with what I have said above, I am disposed to make an order dealing with the matters within s.231(1)(a) however, I do not make orders at this time dealing with matters within s.231(1)(d). Should the matters set out within my Recommendation either not be agreed by the parties as actions they will take voluntarily, or if accepted they are not complied with, I will give consideration, upon application, to make orders dealing with the matters within s.231(1)(d). To be clear, such orders would only be made after receiving and hearing the submissions and evidence of both parties.

CONCLUSION

[57] For the reasons set out above, the bargaining order application made by the UWU will be disposed of in the following manner:

1. An Order of the Commission, pursuant to s.231 will be issued in these terms:

“[1] Pursuant to s.230 of the Fair Work Act 2009 (the Act), the Fair Work Commission makes the following Orders:

1. Davies Bakery Pty Ltd (Davies Bakery), a bargaining representative for a proposed enterprise agreement, must attend and participate in bargaining meetings with the United Workers’ Union (UWU) in respect of an agreement in accordance with the Commission’s Majority Support Determination issued on 22 October 2019 [PR713609], this Order and the Commission’s Statement of 22 January 2020 (the Statement) on dates and times to be agreed by the parties as follows;

a) The first meeting is to be held by no later than Friday, 10 July 2020;

b) The second meeting is to be held by no later than Friday, 24 July 2020;

c) The third meeting is to be held by no later than Friday, 7 August 2020;

d) The fourth meeting is to be held by no later than Friday, 21 August 2020.

2. If, by the end of the fourth meeting bargaining is not concluded or not at an impasse the UWU and Davies Bakery will, before the conclusion of the fourth meeting, discuss and endeavour to agree the dates of two further bargaining meetings to be held by no later than 30 September 2020.

3. Davies Bakery will comply with the framework for the convening of bargaining meetings set out in the Statement, save that until such time as the parties agree otherwise, bargaining meetings will occur via video conferencing in a manner to be arranged by the parties.

[2] This Order will come into operation on 22 June 2020 and cease to be in operation at the earliest of the events stated in s.232(b).

[3] Liberty is given to either party to this matter to apply to the Commission for further or alternative orders, including for reason that the matters set out in the Commission’s Recommendation, dated 22 June 2020 are either not be agreed by each party to be implemented, or if agreed to be implemented, their terms are not complied with.

[4] The file in this matter will remain open until the earliest of 30 September 2020 or the date on which a Notice of Discontinuance is lodged in the Commission by the Applicant, the United Workers Union.”

2. A Recommendation of the Commission will be issued in these terms:

[1] Having regard to the provisions of the Fair Work Act 2009 in Part 2 – 4, Division 8 (FWC’s general role in facilitating bargaining) and s.595 (FWC’s Power to Deal With Disputes), I consider it appropriate to make a recommendation or express an opinion in this matter.

[2] In this recommendation, “the Parties” means the United Workers’ Union and Davies Bakery Pty Ltd; and “bargaining meeting” means the meetings ordered by the Commission to take place in its bargaining order dated 22 June 2020 (PR720366) and any further meetings agreed by the parties for the purposes of enterprise bargaining.

[3] I recommend that:

1. Not less than 7 days prior to each bargaining meeting the Parties confirm to each other the names of the people who will be attending the meeting.

2. Not less than 4 days prior to each bargaining meeting the United Workers’ Union circulate to each person attending the meeting a draft agenda for the meeting, sufficiently particularising each subject it desires to discuss in the meeting such that Davies Bakery may be able to respond to the matter when discussed.

3. Not less than 2 days prior to each bargaining meeting Davies Bakery circulate to each person attending the meeting a list of all matters it desires to discuss in the meeting, together with sufficient particulars such that the United Workers’ Union and any other employee bargaining representative may be able to respond to the matter when discussed.

4. By no later than 29 June 2020 the United Workers’ Union provide to Davies Bakery the names of up to three people employed by Davies Bakery and whose employment will not be covered by the agreement being bargained for who are able and willing to take minutes of each bargaining meeting. After consideration of the nominated people and by no later than 3 July 2020, Davies Bakery will advise the United Workers’ Union which person it will agree to be the minute taker and that it will agree for that person to attend the bargaining meeting in paid time. The failure of the parties to reach agreement on the minute taker will not be a reason for the first or any bargaining meeting to not take place.

5. At the next bargaining meeting, to be held no later than 10 July 2020, the United Workers’ Union provide a written update of its claims, which is not to be merely a restatement of its earlier log of claims. At the following bargaining meeting, to be held no later than 24 July 2020, Davies Bakery provide a written response to the United Workers’ Union on its claims, which is not to be merely a short rejection of the claims, together with written details of any of its own claims.

6. The Parties agree that until bargaining ceases or is at an impasse future communications to employees about the progress of bargaining be confined to distribution of the minutes taken by the agreed minute taker.

7. The Parties agree that neither will unilaterally terminate future bargaining meetings.

[4] The Parties are each requested to confirm in writing to the Commission and each other their acceptance of the terms of this Recommendation, and to do so no later than Thursday, 25 June 2020.

[58] An Order and Recommendation consistent with the above will be issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr B. Redford for the Applicant

Mr M. Davies and Ms B. Relf for the Respondent

Hearing details:

2020.

Melbourne (via video conference);

17 June.

Printed by authority of the Commonwealth Government Printer

<PR720367>

 1   [2019] FWC 7307; PR713609.

 2   B2019/1362 – Application by United Workers' Union.

 3   Exhibit A5, Witness Statement of Pareen Minhas, 1 June 2020, [9].

 4   Ibid, Attachment PM – 2.

 5   Ibid, [11].

 6   See B2019/1362 – Application by United Workers' Union.

 7   Exhibit A5, Attachment PM – 1.

 8   Ibid, [14]

 9   Ibid, Attachment PM – 3.

 10   Ibid, Attachment PM – 5.

 11   Ibid, Attachment PM – 6.

 12   Ibid, Attachment PM – 7.

 13   Ibid, Attachment PM – 8.

 14   Ibid, Attachment PM – 9.

 15   Ibid, Attachment PM – 10.

 16   Ibid, [29].

 17 Ibid, [30] – [33].

 18   Ibid, [35].

 19   Exhibit R2, Bundle of Documents filed by Davies Bakery, 16 June 2020.

 20   Ibid.

 21   Ibid.

 22   Ibid.

 23   Exhibit A1, Applicant’s Outline of Submissions, 1 June 2020, [20] – [22]; Exhibit A5, [5].

 24   Recording of hearing, time reference 1:25 – 1:26.

 25   Exhibit A5, [9].

 26   Ibid, Attachment PM – 9.

 27   Ibid, [29].

 28   Exhibit A3, Documents filed by the UWU, 16 June 2020

 29   Ibid.

 30   Endeavour Coal v APESMA (2012) 206 FCR 576, 217 IR 154, at [31]

 31   Ibid, at [23], citing Public Sector, Professional, Scientific, Research, Technical, Communications, Aviation and Broadcasting Union v Australian Broadcasting Corp (unreported, AIRCFB), Print L4605, 31 August 1994, and Asahi Diamond Industrial Australia Pty Ltd v Automotive, Food, Metals and Engineering Union (1995) 59 IR 385 at 422

 32   APESMA v Peabody Energy Australia Coal Pty Ltd[2015] FWCFB 1451, at [21]

 33   National Tertiary Education Industry Union v University of Western Sydney[2013] FWC 4613 (15 July 2013), at [23]

 34   Mnookin R., Peppet S., and Tulumello A., Beyond Winning, Boston, Harvard University Press, 2000, pp.24 – 25.

 35   AMWU v Cochlear Limited[2012] FWA 5374, [388].

 36   Exhibit R2.

 37   Exhibit R1, Respondent’s Outline of Submissions, 15 June 2020, [5] – [6].