DECISION

Fair Work Act 2009
s.229—Bargaining order

United Workers’ Union
v
BPL Adelaide Pty Limited
(B2020/215)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 APRIL 2020

Application for a bargaining order – whether reasonable to make an order – application dismissed.

[1] The United Workers’ Union (UWU) has made an application for bargaining orders under s 229 of the Fair Work Act 2009 (the Act) directed at BPL Adelaide Pty Limited (BPL) in connection with bargaining for a proposed enterprise agreement to cover employees at BPL’s poultry processing facilities at Moss Road and Hakkinen Road Wingfield in Adelaide (the facilities). The application is opposed by BPL.

[2] The employment of the relevant employees, who work in distribution and production roles at the facilities, is currently covered by the BPL Adelaide Pty Limited (Production and Distribution Employees) Enterprise Agreement 2016-2020 (2016 Agreement), which has a nominal expiry date of 1 March 2020. In late-2019, BPL agreed to commence bargaining for an enterprise agreement to replace the 2016 Agreement. The UWU is one of a number of bargaining representatives, specifically representing its members at the sites that would be covered by the enterprise agreement that would replace the 2016 Agreement.

[3] In making this application, the UWU contends that BPL has unilaterally terminated negotiations by proceeding to put a proposed agreement to a vote and in doing so, has acted in a capricious manner because this is contrary to the manner in which the parties agreed to operate. Further, the UWU contends that BPL’s actions in doing so are unfair. It therefore contends BPL has acted in breach of various good faith bargaining requirements prescribed by s.228 of the Act.

[4] BPL denies it has contravened the good faith bargaining requirements.

Preliminary procedural issue

[5] While the UWU named “Baiada Poultry Pty Ltd” with the Australian Business Number (ABN) of 96 002 925 948 as the Respondent in the Form F32 – Application for a bargaining order, it is stated by Ms Sonia Takla, who is the National Industrial Relations Manager for the Baiada Group, that this is not correct. Ms Takla states that BPL is a company within the Baiada Group and that the legal name for the employer at the facilities is BPL Adelaide Pty Limited, ABN 40 108 037 798.

[6] I have therefore determined that I should amend the application made by the UWU so as to record “BPL Adelaide Pty Limited” as the Respondent and I consider my doing so is consistent with the circumstances in which it has been held this is possible pursuant to s.586 of the Act. 1

Factual Background

[7] The factual background to this application is addressed in the witness statement of Ms Takla and the attachments to this statement, together with the witness statement of Mr Solomon Deng, an organiser with the UWU. Both statements were tendered at the hearing but neither Ms Takla nor Mr Deng were required for cross-examination.

[8] Ms Takla says that she commenced…

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: [2020] FWC 1788
Decision Date: 2 APRIL 2020

CaseChat Overview and Summary

In the case of United Workers' Union v BPL Adelaide Pty Limited, the dispute arose from an application by the United Workers' Union for a bargaining order under section 175 of the Fair Work Act 2009. The union sought to compel BPL Adelaide Pty Limited to engage in good-faith bargaining over a proposed enterprise agreement. The case was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether it was reasonable to make a bargaining order under the Fair Work Act, considering the circumstances and the arguments presented by both parties. The court had to determine whether the union had made a genuine attempt to negotiate and whether there was a reasonable prospect of reaching an agreement through further bargaining.

The Federal Circuit Court found that while the union had made some attempts at negotiation, it had not demonstrated a genuine effort to reach an agreement. The court concluded that it was not reasonable to make an order compelling further bargaining. Consequently, the union's application for a bargaining order was dismissed.

No additional orders were made by the court, and the application was dismissed on the basis that the union had not shown a reasonable prospect of success in reaching a negotiated agreement through further bargaining.

Orders