United Workers' Union v BPL Adelaide Pty Limited

[2020] FWC 1788

[2020] FWC 1788

FAIR WORK COMMISSION

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 organising enterprise bargaining negotiations for an agreement to replace the 2016 Agreement in or around September 2019. Ms Takla produced email correspondence that was sent and received between 19 September 2019 and 21 November 2019.

[9] Ms Takla sent an initial email on 19 September 2019 to Mr Mark Whenan and Mr Deng of the UWU advising that BPL would be distributing the Notice of Employee Representational Rights in order to commence negotiations for a new agreement. There was then some correspondence that passed between the parties to make arrangements for a first bargaining meeting. The UWU’s initial position was that it would be ready in late-November 2019.

[10] In an email dated 20 September 2020, Ms Takla conveyed BPL’s preference to finalise a new agreement at or before the expiration of the 2016 Agreement because it would not be making back-payments but rather, paying wage increases from the first full pay period after a vote approving the new agreement. Ms Takla also observed that the number of employees to be covered by the new agreement had almost tripled during the course of the 2016 Agreement and suggested this would impact on the time needed “to go through a proper process”. As such, Ms Takla outlined the preference of BPL to commence no later than early-November 2019 and she referred to Clause 41 of the 2016 Agreement regarding the agreement of the parties to commence negotiations for a new agreement at least three months prior to 1 March 2020.

[11] The parties subsequently agreed to meet on 20 November 2020 and at this meeting, it was agreed that there would be delegate training on 21 November 2019, a “Priority Survey” completed on 29 November 2019, mass meetings on both 4 December 2019 and 5 December 2019 and negotiation meetings on:

•  9 December 2019 (with UWU officials to meet separately beforehand and then exchanging and discussing the log of claims);

•  16 December 2019; and

•  17 December 2019.

[12] The log of claims from the UWU was received by Ms Takla on 11 December 2019. Amongst other things, it included a claim for a three-year agreement and “fair annual increases to all wages and allowances commencing 2 March 2020.”

[13] Ms Takla’s unchallenged evidence is that that there have also been ten other employee bargaining representatives involved in the negotiations (employee bargaining representatives) who have made claims which have also been the subject of discussion at bargaining meetings.

[14] There appear to have been bargaining meetings involving BPL, the UWU bargaining representatives and the employee bargaining representatives on the following dates:

i. 20 November 2019;

ii. 9 December 2019;

iii. 16 December 2019;

iv. 17 December 2019;

v. 14 January 2020;

vi. 15 January 2020;

vii. 4 February 2020;

viii. 5 February 2020; and

ix. 11 February 2020.

[15] Mr Deng confirms this in stating he attended approximately eight bargaining meetings.

[16] Ms Takla produced copies of summaries made and exchanged to both the UWU and the employee bargaining representatives in early-January 2020 regarding their claims and the responses from BPL.

[17] Between 12 February 2020 and 17 February 2020, email communications passed between Ms Takla and the UWU representatives in relation to arrangements for matters which included mass meetings and dates for a vote.

[18] In an email sent on 12 February 2020, Ms Anne Purdy, Industrial Officer for the UWU, outlined the UWU proposal to hold paid mass meetings on 27 and 28 February 2020 (as per agreement with BPL). Further, this email discloses that the parties had agreed holding a vote for a new agreement on 10 and 11 March 2020 under the supervision of both BPL management and the UWU, with a draft agreement to be circulated from 17 February 2020 and BPL to conduct meetings with employees on 24 February 2020. There was also a request for notices about these meetings to be provided to the UWU prior to circulation amongst employees and the approval for UWU delegates to attend in unpaid time at the commencement and conclusion of their shifts.

[19] In her reply sent on 13 February 2020, Ms Takla advised that she would email Ms Purdy a copy of the agreement and the Vote Notice, once completed, together with a “comparison document”.’ Further, Ms Takla advised that the UWU would be given a copy of the mass meeting notice prior to it being circulated to employees and outlined some requirements associated with union delegates being present in unpaid time.

[20] The vote for a proposed agreement to replace the 2016 Agreement took place on 10 March 2020. Ms Takla produced a copy of the “vote count sheet” made on 11 March 2020. It records that votes were counted by Ms Takla and witnessed by Mr Deng, and recorded results as follows:

1. 619 employees were eligible to vote;

2. 490 employees voted;

3. 229 voted for approval of the agreement;

4. 259 voted against approval;

5. 2 votes were invalid.

[21] Ms Takla gave evidence that these results indicate there were 129 employees who were eligible to vote but did not vote. She says that on or about 11 March 2020, she spoke with Ms Elizabeth Chalmers (BPL’s IR Co-Ordinator at the facilities) and was told by Ms Chalmers that:

•  there were approximately 40 eligible employees who were absent from the workplace during the ballot because they were in isolation due to COVID-19 restrictions and therefore did not have the opportunity to vote in the ballot; and

•  there were other employees who were on leave at the time of the vote who also did not have the opportunity to vote in the ballot.

[22] Mr Martin de Rooy for the UWU advised that the agreement put to this vote had not been endorsed by the UWU.

[23] On 11 March 2020, Mr Deng sent an email to Ms Takla stating:

“As a result of today morning EA voting, UWU is looking forwards to continue negotiating for site EBA. Please advise on the next bargaining meeting dates. Hope this email finds you well and had a good rest after the ballots long working hours.”

[24] On 12 March 2020, Ms Takla replied with an email stating:

“Thanks Solomon

I had a reasonable rest after such long hours and hope you did too.

After discussions with Dada, I can confirm that we are available to meet with the UWU Wednesday 25th March (11.00am or 1.00pm), Thursday 26th March (11.00am or 1.00pm) or Friday 27th March (11.00am). I put the times in as they were the times we met when negotiating the EA, it appeared to be the time that best suited the employee representatives and delegates.

Please confirm if any of these dates and times suit you?”

[25] The “Dada” referred to by Ms Takla is Mr Dada Hu, General Manager, South Australia.

[26] Mr Deng replied later that day with an email stating:

“Thanks Sonia, yes, I did have reasonable rest too.

We will look into the dates you suggested and get back to you as soon as possible.

Best regards”

[27] At 3.55pm on Friday 13 March 2020, Mr Deng sent a further email to Ms Takla, which stated:

“Dear Sonia,

Due to other commitments, UWU officials Mark Whenan and myself plus all union bargaining reps are happy and ready to meet on Wednesday, 25/3/2020 at 11.00am and union delegates with officials catching up first at 10.30am as usual. In this meeting, we all the parties involved can put our heads together and plan on what we need to do in future pertaining the ongoing EA bargaining process. Please confirm if this is ok with you.

Best regards”

[28] At 5.52pm on Friday 13 March 2020, Ms Takla replied:

“Dear Solomon

As per my previous email, we are available to meet on 25/3/2020 and happy to confirm the meeting time of 11.00am. We will notify and invite all our employees who were nominated as employee representatives to ensure they are aware of the meeting.

Hope you have a great weekend.

Regards”

[29] Mr Deng says that at the proposed bargaining meeting that was scheduled for 25 March 2020, the UWU was prepared to discuss the following items with BPL:

•  Wage increase;

•  Job security clauses;

•  Pick rosters (starting time, finishing time);

•  Length of the Agreement; and

•  Chiller allowances.

[30] Mr Deng also says he understood that the purpose of the bargaining meeting on 25 March 2020 was to participate in further bargaining for the proposed agreement. He says he interpreted Ms Takla’s confirmation for this bargaining meeting as an acknowledgement that bargaining had not yet concluded.

[31] At 3.26pm on Friday 20 March 2020, Ms Takla sent Mr Deng an email, which stated:

“Dear Solomon

Further to my email below, due to the current situation regarding Coronavirus and various restrictions/recommendations to avoid the spread of the virus I am unable to attend the meeting in person. In addition, trying to keep all persons who would normally attend these meetings 1.5 metres apart will prove very difficult.

Can you please advise if Union Officials including yourself are able to attend and how to best carry out these meetings?

I can be available via phone or video link.

Thank you

Regards”

[32] A reply to this email was sent to Ms Takla by Mr Whenan at 5.34pm on Friday 20 March 2020. It outlined:

“Hi Sonia,

These are certainly unprecedented times that we are experiencing.

Due to Anne's maternity leave I will be taking carriage of the negotiations going forward along with Solomon.

We want to ensure that we finalise these negotiations in a manner that allows workers to be communicated with effectively. With the ever increasing restrictions on meetings and the social distancing measures that the Prime Minister has released today we think our first option is the most sensible position to take. It allows the workers and the business to focus on its core function to supply the nation with chicken products. It is consistent with arrangements we have arrived at with other employers in the food industry.

We propose the following 2 options in relation to the current agreement negotiations.

Option 1:

•  That agreement negotiations are put on hold for 6 months (to be reviewed monthly). As a gesture in good faith Baiada agree to pay the pay increase that was proposed for the first year of the new agreement. In addition to agreement to back pay any negotiated difference to the first years increase. For example if your offer was 2% in year 1 of the agreement that this is paid effective from the FFPP on or after the expiry of the current agreement. Then if we were to agree in 6 months time that the first year were to be a 2.5% increase that you commit to back pay the .5% difference in what was paid.

Option 2:

•  We continue bargaining via video conferencing (Zoom). Given the new restrictions (1 person for each 4m squared), we are unsure if you have the room to allow for this to occur. Assuming that you do we would propose that Solomon be on site with his device with the delegates. That I be offsite with my device and host the meeting. That Dada be with his own device and with any non-union bargaining reps present. Finally that you Sonia are on your own device in your location. Our concern with bargaining proceeding is, for both the Company and Union, the ability to communicate any agreed or otherwise changes to the agreement.

I apologise for the length of the email but, I hope it makes sense what we are trying to convey. I am happy to discuss these options, or any others, with yourself and/or Dada.

Thanks and stay safe”

[33] Ms Takla responded with an email sent at 5.49pm which stated:

“Thanks Mark for your prompt response

It certainly is unprecedented times we all face. Hopefully actions taken by the Government and everyone adhering to them will mean a faster resolution to this very serious issue.

I will discuss the options you have proposed with Dada and we will get back to you early next week.

Have a great weekend! Stay safe!

Regards”

[34] Ms Takla conveyed BPL’s response in an email sent at 1.07am on Tuesday 24 March 2020, as follows:

“Dear Mark

After further discussion with Dada we confirm that the Company declines the options you have noted below. As previously advised the Company will not be implementing any wage increases until the agreement is accepted by majority of employees.

To ensure we minimise further delay in providing our employees with a wage increase, in good faith, the Company has decided to give employees another opportunity to vote on the EA next week Wednesday 1st April and Thursday 2nd/Friday 3rd April 2020. The commencement date of the 1st wage increase has been changed to 6/4/2020 to be in line with the 2nd vote however the dates of future wage increases has remained the same including the nominal expiry date of the proposed new EA.

Please find attached the proposed new EA with date change as noted above. No other changes have been made to the proposed new EA.

The Second Vote Notice will be forwarded to you later today. Copies will be placed on all Notice Boards and employees made aware of the second vote.

Thank you

Regards”

[35] Further, Ms Takla sent an email to Mr Whenan at 8.23pm on 24 March 2020 which attached the “Second Vote Notice”. This document outlined details for when and where the attendance ballot vote would be taking place and the names of UWU delegates that would be present at each appointed time and place.

[36] Ms Takla says that the decision by BPL to have a second vote on the proposed agreement was to provide employees an opportunity to have a second vote on the proposed enterprise agreement and that BPL took into account:

•  Those employees absent from the workplace during the first ballot period for reason of both isolation due to COVID-19 restrictions and other forms of leave who did not have the opportunity to vote; and

•  The “relatively close result” between those who voted yes to approve the proposed enterprise agreement and those who voted against it.

[37] In a letter to Ms Takla dated 27 March 2020, Ms Susie Allison, Director-Food and Beverage for the UWU, outlined the following position:

“Dear Ms Takla,

Failure to comply with good faith bargaining requirements

We write in relation to negotiations between the United Workers Union (UWU) and Baiada Poultry Pty Ltd (Baiada) for BPL Adelaide Pty Ltd (Production and Distribution Employees) Enterprise Agreement 2020-2024 (the Agreement). The UWU is an employee bargaining representative in these negotiations, and we write to give you notice of our concerns of your failure to comply with your good faith bargaining obligations.

For context, we refer to your emails dated 24 March 2020.

We are concerned that:

•  Employees of Baiada have already voted on the Agreement;

•  Baiada agreed to a further bargaining meeting of 25 March 2020;

•  Baiada unilaterally terminated negotiations on 24 March 2020;

•  Baiada proposes to put the Agreement out to vote for a second time;

•  Baiada has not given reasonable opportunity to discuss this proposal; and

•  Baiada has not genuinely considered the options put to it by the UWU.

Baiada has an obligation under s 228 of the Fair Work Act 2009 (Cth) (the Act) to meet good faith bargaining requirements when negotiating an enterprise agreement. The UWU maintains that Baiada’s conduct has breached a number of good faith bargaining requirements, including:

•  disclosing relevant information in a timely manner (s 228(1)(b));

•  responding to proposals made by other bargaining representatives for the agreement in a timely manner (s 228(1)(c));

•  giving genuine consideration to the proposals of other bargaining representatives for the agreement (s 228(1)(d));

•  refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining (s 228(1)(e)); and

•  recognising and bargaining with bargaining representatives (s 228(1)(f)).

As such, please confirm by noon on Monday 30 March 2020 that:

•  Baiada will not release the Agreement a second time;

•  Baiada will meet with the UWU on at least 2 occasions over the next 14 days, at an agreed time and place;

•  Baiada will refrain from presenting its position directly to employees until it has provided the UWU with the above proposal, as well as its explanation for it; and

•  Any position that Baiada subsequently presents directly to employees will be the same as what Baiada has already put to the UWU during the enterprise bargaining negotiations.

Please note if Baiada does not respond appropriately to our concerns by 12 noon Monday 30 March 2020, the UWU intends to apply to the Fair Work Commission for orders that it complies with its obligations.

Yours sincerely”

[38] Ms Takla instructed the Australian Federation of Employers and Industries (AFEI) to send a response. In a letter dated 30 March 2020 and sent at 11.42am, Mr Tony Doyle, Director, Workplace Relations at AFEI, outlined the following response of BPL:

“I write on behalf of Baiada in response to your correspondence dated 27 March 2020 to the attention of Sonia Takla, National Industrial Relations Manager in which, amongst other things, you allege failure on the part of Baiada to comply with good faith bargaining requirements. On the facts and circumstances which I understand from instructions, the allegation is without grounds; similarly, there are no grounds for, or utility in, the action foreshadowed by the union.

First, bargaining has already taken place; Baiada participated in that bargaining, as did officials of your union and several other employees bargaining representatives. That bargaining – which is now complete - occurred in compliance with Division 3 – Bargaining and representation during bargaining of Part 2-4 – Enterprise agreements of the Fair Work Act 2009 (the Act). In short, the proposed enterprise agreement is the product of bargaining which has occurred in compliance with the Act.

Second, as bargaining is complete, the matter has now moved to the stage where it is necessary to complete the pre-approval steps at Subdivision A of Division 4 of Part 2-4 of the Act. It is particularly relevant that the Act requires Baiada - as the employer - to take certain pre-approval steps including the requirements at section 180 that it take reasonable steps to give a copy of the proposed agreement to the employees who will be covered by it, and steps to notify those employees of the voting method, time and place. Baiada has, fairly and properly, kept the employee bargaining representatives (including your union) informed of these steps. In this regard, Ms Takla provided relevant information by e-mails on 24 March 2020 to Mr Whelan and Mr Deng of the union. The voting process appears to be satisfactory to the union as Mr Deng has consequently advised Mr Hu (General Manager, SA) that the union intends to visit the site this coming week ‘during breaks and vote times’ and made a request to Mr Hu (which has been granted) for union delegate Ashley Williams to be given some flexible working hours to attend the ballots counting at the end of the vote.

In short, the approval process is in progress because Baiada has complied with these statutory requirements and it has been reasonable and accommodating towards employee bargaining representatives including the union.

Third, in response to the matters of ‘concern’ which appear as bullet points in your letter, it is immaterial that employees have previously voted on the proposed enterprise agreement. Further, the negotiations were not unilaterally terminated by Baiada on 24 March or at any time. As noted above, the propose enterprise agreement has already been negotiated. Further, the proposals put by Mr Whenan to Ms Takla on 20 March were considered but were not acceptable – Ms Takla informed Mr Whenan of this by reply e-mail on 24 March including clear and candid information about the company’s decision to give employees another opportunity to vote.

Fourth, your letter discloses no factual basis to support complaints of breach of good faith bargaining requirements at section 228 of the Act. Instead, the letter conveys nothing more than bare assertions.

In conclusion, you have not shown any proper basis to discontinue the lawful process that is underway to give the employees an opportunity to have their say on the proposed enterprise agreement. Accordingly, the vote will proceed in compliance with the Act.”

[39] The UWU responded by filing this application in the Commission at 2.08pm on 30 March 2020. It was allocated to me at 11.54am on 31 March 2020.

[40] I conducted a telephone conference with the parties on 1 April 2020. As the matter was not able to be resolved during discussion at this conference, I listed a hearing, which took place at 2.30pm on 2 April 2020.

Submissions of the UWU

[41] The UWU submits the employees of BPL have already voted on a proposed agreement and that BPL:

•  agreed to a further bargaining meeting of 25 March 2020;

•  unilaterally terminated negotiations on 24 March 2020;

•  proposes to put the Agreement out to vote a second time;

•  has not given reasonable opportunity to discuss this proposal; and

•  has not genuinely considered the options put to it by the UWU.

[42] The UWU submits the Commission should be satisfied that bargaining has been initiated pursuant to s.230(2) of the Act and BPL:

•  is not meeting the good faith bargaining requirements (s.230(3)(a)(i) of the Act); and

•  has engaged in capricious and/or unfair conduct that undermines freedom of association and/or collective bargaining.

[43] The UWU submits that BPL’s actions in unilaterally terminating negotiations by proceeding to put the proposed agreement to a second vote was contrary to the manner in which the parties agreed to operate and was capricious in manner because it was not consulted.

[44] The UWU further asserts that BPL’s actions are unfair as none of the limited circumstances recognised in Tahmoor Coal, 2 where an employer can unilaterally put an agreement to ballot without breaching good faith bargaining, exist, namely:

•  The negotiations were not at an “impasse” or “stalemate” and were still progressing;

•  It was not afforded reasonable opportunity to discuss the latest proposal; and

•  A further bargaining meeting had been scheduled.

[45] The UWU submits that the correspondence received from BPL on 24 March 2020 advising that it was putting the agreement out to vote for a second time indicates that BPL has not genuinely considered nor discussed the proposals of the UWU, contained in its email dated 20 March 2020.

Submissions of BPL

[46] BPL submits it would appear that the UWU places much reliance on the from Mr Whenan at 5.34pm on 20 March 2020 in which Mr Whenan presented the two options to BPL for either the agreement negotiations to be put on hold for six months or for bargaining to continue.

[47] BPL submits these options are not claims in relation to the proposed agreement, in that they are not concerned with the substance of the proposed agreement and therefore do not represent the kinds of matters which are given protection through Subdivision A of Division 8, Part 2-4 of the Act.

[48] BPL says that the first option is not a proposal that addresses the content of the proposed agreement and may only be understood as an invitation to suspend bargaining rather than promoting it. BPL submits the first option is not a proposal for the proposed agreement.

[49] As to the second option, BPL submits it does not present any information about the nature of any claims that the UWU wishes BPL to consider in relation to the proposed agreement and that it too is not a proposal for the proposed agreement.

[50] BPL submits the content of Mr Whenan’s was considered by BPL and as much is “manifestly clear” from the content of Ms Takla’s reply to Mr Whenan at 1.07am on Tuesday 24 March 2020. BPL submits that the email conveys the position of BPL having considered the options presented by Mr Whenan and further, it explains BPL’s position in a courteous and informative manner. BPL contends that the email was not abrupt in tone, nor was it perfunctory, particularly as the response was provided three to four days after Mr Whenan had presented the options to Ms Takla.

[51] BPL submits the course of action it proposed in Ms Takla’s dated 24 March 2020 is, on any fair view, entirely reasonable in the circumstances, particularly in circumstances where there were eligible employees absent from the workplace during the first ballot, for reasons of leave and for reason of isolation as a consequence of COVID-19 initiatives, and given the results of the first ballot, which indicate there was not a significant difference between the number of votes in favour of the proposed agreement and the number against.

[52] BPL submits there are therefore no grounds to warrant any unfavourable or adverse conclusions or findings against it with respect to its dealings with the UWU during any time material to this application. Further, it says its conduct does not fall short of any fair or reasonable measure of good faith, but instead shows that it has been diligent and earnest in attending to enterprise bargaining.

[53] BPL submits that contrary to the assertions of the UWU:

•  it did not act in any capricious manner to unilaterally terminate any meeting. It says its response of 24 March 2020 gives a full explanation for the course of conduct which it proposed and the subject matter of the relevant communications does not represent negotiations regarding the proposed enterprise agreement.

•  it was not capricious or unfair for it to release the proposed agreement to the eligible employees for the purposes of the second ballot. It says in this regard, the conduct was compliant with s.180 of the Act, which requires this conduct from an employer only and that the employer “must” give a copy of the proposed agreement to relevant employees as part of the mandatory pre-approval steps;

•  it was neither capricious or unfair for it to inform employees of the second ballot. It says in this regard, its actions are explained by, and are compliant with, s.181 of the Act, which permits the employer (and only the employer) to request employees to approve an enterprise agreement; and

•  it has kept the UWU informed of its intentions at all critical times material to this application. It says the UWU was fully informed on 24 March 2020 of its proposed course of action, including disclosure of the voting information. BPL further says it is relevant (and a matter that counts against the UWU) that despite having had full disclosure of that information at that time, the UWU did not take immediate steps to prosecute its complaints against BPL.

[54] BPL’s position, in summary, is that I could not be persuaded on the material before me that there was a deficiency of good faith and it opposes:

•  the application;

•  the orders as described in the application; and

•  any interruption to the ballot regarding the proposed agreement, being the ballot which is currently underway at the facilities.

Consideration

[55] Sections 229 and 230 of the Act prescribe the requirements which must be met before a bargaining order can be made.

[56] The UWU is a bargaining representative and is therefore entitled to apply for bargaining orders. 3 Section 229(3) states that if an enterprise agreement applies to employees who will be covered by a proposed enterprise agreement, an application for a bargaining order must be made not more than 90 days before the nominal expiry date of the agreement. The application in this case was made on 30 March 2020, which is not more than 90 days before the expiry date of the 2016 Agreement on 1 March 2020.

[57] Section 229(4) provides that a bargaining representative may only apply for a bargaining order if it has concerns that one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements. The applicant must have given a written notice setting out those concerns to the relevant bargaining representatives, and given them a reasonable time within which to respond to those concerns. I am satisfied these requirements are met in this case. In particular, there was the written notice sent by the UWU to BPL on 27 March 2020, and the application was not then lodged until a further three days has passed, which I am satisfied allowed a reasonable period for BPL to respond. Further, the UWU does not consider BPL to have responded appropriately to the concerns.

[58] Section 230 then provides as follows:

“(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.

(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;

…

(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.

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”

[59] In the present case, an application for an order has been made 4 and I am satisfied that BPL has agreed to bargain for a proposed agreement,5 and that the UWU has complied with the requirement of s.229(4) by notifying BPL of its concerns.6

[60] I must also be satisfied that BPL, being a bargaining representative for the agreement, has not met and is not meeting the good faith bargaining requirements. 7

[61] Section 228 prescribes good faith bargaining requirements. It states:

“(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.”

[62] For the purposes of s 230(3)(a), I must be satisfied that BPL has not met or is not meeting the good faith bargaining requirements. For the reasons that follow, I am not satisfied that this is the case.

[63] At the outset I note that the history of this matter indicates that the parties have been in dialogue regarding negotiations for an agreement to replace the 2016 Agreement since at least 19 September 2019. Their interactions, until most recently, have been co-operative. Nine bargaining meetings have been held, responses to claims have been made and a proposed agreement, whilst apparently not endorsed by the UWU, proceeded to an orderly vote on 10 March 2020 with the UWU and its delegates able to play a role during the access period and voting process. There is no complaint made by the UWU, and I would not find, that BPL did not meet the good faith bargaining requirements in s.228 in the period up until 20 March 2020, when Ms Takla sent her email to Mr Whenan at 5.49pm stating she would discuss the options he had outlined in his email of the same day with Mr Hu.

[64] The facts reveal that while Ms Takla had initially indicated her availability to meet on 25 March 2020 in her email sent on 13 March 2020, by 20 March 2020 she outlined some potential difficulties with that meeting proceeding due to COVID-19 social distancing measures which had, by then, been put in place requiring people to remain 1.5 metres apart. On 20 March 2020, Ms Takla asked of the UWU, “Can you please advise if Union Officials including yourself are able to attend and how to best carry out these meetings?” The UWU responded with its two proposals for bargaining, conveyed in the email sent by Mr Whenan later on 20 March 2020. Neither proposal conveyed that in continuing negotiations, the UWU was prepared to discuss the particular items outlined by Mr Deng. While this may have been Mr Deng’s and the UWU’s ultimate intention, this level of particularity was not, and has not until this hearing, been communicated.

[65] The good faith bargaining requirements do not require BPL to have agreed to the UWU’s proposals. They impose obligations on BPL to give genuine consideration to the UWU’s proposals and to respond in a timely manner.

[66] The UWU complains that BPL neither genuinely considered nor discussed its proposals. However, the correspondence reveals no immediate rejection of the proposals nor a rejection conveyed with undue haste. BPL responded three days later. BPL was required to give genuine consideration to the proposals and the unchallenged evidence of Ms Takla is that she discussed the proposals with Mr Hu, BPL’s General Manager for South Australia.

[67] While the response from BPL conveyed by Ms Takla indicates it did not agree to the proposals, I do not accept the proposition that BPL did not genuinely consider them. In the changed circumstances in which the parties found themselves, BPL considered the UWU proposals and then responded with a proposal of its own. Further, BPL gave reasons for its response. It conveyed its preferred course, which was to offer its employees the opportunity to vote to have a wage increase (foreshadowed to be possible from 6 April 2020). That the increase would only be forthcoming upon agreement being reached was consistent with the position and the approach it had first expressed on 20 September 2019.

[68] Ms Takla had previously flagged challenges all participants in the negotiations faced in continuing to conduct negotiations. The evidence reveals there would be approximately 15 individuals involved. There was no certainty that BPL had the facilities to accommodate continuing negotiations in the manner proposed by the UWU. BPL elected not to continue with negotiations at that point in time but to instead explore whether agreement might be reached. In the circumstances of this case, I do not consider this was unreasonable, and as it turned out, BPL’s proposal for there to be a pathway to an initial pay increase without delay was consistent with the UWU’s first proposal, albeit the parties diverged in two respects; effective date and quantum. As opposed to 6 April 2020, the UWU wanted an increase to apply from the first full period on or after 1 March 2020 and it wanted to reserve the right to have the quantum of this initial pay increase subsequently adjusted, if the parties later agreed to a higher rate when negotiations resumed.

[69] I do not consider the fact that BPL did not discuss these matters with the UWU before providing its response as a factor that weighs against it in this matter. The proposals of the UWU were high level. They were clearly outlined and I am satisfied they were of a nature capable of both comprehension and being given genuine consideration by BPL.

[70] The UWU submits that Construction, Forestry, Mining and Energy Union-Mining and Energy Division v Tahmoor Coal Pty Ltd 8 (Tahmoor Coal) stands for the proposition that there are limited circumstances in which an employer can unilaterally put an agreement to ballot without breaching the good faith bargaining requirements. What was stated by the Full Bench in Tahmoor Coal was:

“Whether a party observes or fails to observe the good faith bargaining requirements set out in s.288(1) is to be determined in light of all of the relevant circumstances. While at one level this is stating the obvious, it is appropriate in view of the submissions in the appeal to indicate that the question will rarely be decided by reference to one action or series of actions.” 9

[71] Further, in reference to circumstances such as the ones before me, the Full Bench stated:

“…Although there may be circumstances in which the conduct of a ballot without the agreement of other bargaining agents constitutes a breach of the good faith bargaining requirements, it will not always be so. There is no absolute requirement for the agreement of the bargaining agents prior to the conduct of a ballot. In this case the Commissioner and the parties all referred to the notion of “impasse” as the touchstone by which to judge whether an employer who puts a proposed agreement to a ballot without the agreement of the other bargaining agent thereby fails to observe the good faith bargaining requirements. There was some debate about whether “impasse” had been reached at the relevant time. The Commissioner found that “negotiations for an enterprise agreement have reached a stalemate, or using Tahmoor’s words: “an impasse”. Another way of approaching the matter, as the CFMEU intimated in its submissions, might be to ask whether there had been a reasonable opportunity to discuss Tahmoor’s latest proposal. Yet another formulation might be to ask whether negotiations had reached such a stage that the employer was entitled to put its proposal to a ballot in order to see if progress could be made. However it is put, we are satisfied that in arranging to put its proposed agreement to the employees in a ballot, Tahmoor was not acting capriciously or unfairly in the circumstances prevailing at the time.” 10 (my emphasis, reference omitted)

[72] In the circumstances of this matter prevailing at the material time, I do not consider BPL acted in a capricious or unfair manner in deciding to put the proposed agreement to another vote. There had been nine bargaining meetings and, apart from deciding to provide its employees the opportunity to decide whether to vote for or against an agreement that would deliver an immediate pay rise in changed circumstances due to COVID-19, Ms Takla also gave unchallenged evidence about other contextual circumstances that guided BPL’s decision:

•  There were employees absent from the workplace for reason of both isolation due to COVID-19 restrictions and other forms of leave who did not have the opportunity to vote in the first ballot; and

•  The result had been “relatively close.”

[73] Further, BPL did not act capriciously or unfairly in executing it proposal to conduct a second vote. It did not delay in providing particulars to the UWU in relation its proposal. A copy of the agreement BPL proposed to put to the vote was provided and BPL identified the only change that had been made to it since the first vote. Further, the UWU was provided with a copy of the notice BPL had given its employees regarding the method of voting and the times and places at which the vote would occur. Finally, BPL communicated to the UWU the arrangements for UWU delegates to be present during the voting presence.

[74] As I am not satisfied that BPL has not met or is not meeting the good faith bargaining requirements, the requirements of s.230 are not met. 11 Nor am I satisfied that it is reasonable in all the circumstances of this matter to make the orders sought. I therefore decline to exercise the discretionary power in s.230 to make any of the orders sought by the UWU and I dismiss the UWU’s application filed on 30 March 2020.

[75] By way of final observation I note that amongst the orders sought by the UWU, there was an order that had been expressed in two forms, that if granted, would either have:

•  Restrained the conduct of the ballot currently underway for a period of 30 days to allow the additional two bargaining meetings to occur; 12 or

•  Required the current access period to be discontinued and restrained for a period of 30 days to allow the additional two bargaining meetings to occur. 13

[76] As I have declined to make an order of this sort, or any order, the vote currently underway will conclude at 3.00am on Friday 3 April 2010 and be counted shortly thereafter. If that vote results in the proposed agreement not being approved, the UWU can of course give consideration as to whether it wishes to again pursue bargaining orders by means of another application to the Commission, depending on what further course the bargaining between the parties takes.

DEPUTY PRESIDENT

Appearances:

M. de Rooy for the United Workers’ Union.

J. Stanton of AFEI Legal Pty Ltd for BPL Adelaide Pty Limited.

Hearing details:

2020.
Melbourne (telephone hearing):
April 2.

Printed by authority of the Commonwealth Government Printer

<PR718046>

 1   Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].

 2   Construction, Forestry, Mining and Energy Union-Mining and Energy Division v Tahmoor Coal Pty Ltd [2010] FWAFB 3510.

 3   Fair Work Act 2009 s.229(1).

 4 Ibid s.230(1)(a).

 5 Ibid s.230(2)(a).

 6 Ibid s.230(3)(b).

 7 Ibid s.230(3)(a)(i).

 8   [2010] FWAFB 3510.

 9 Ibid at [24].

 10 Ibid at [28].

 11   Fair Work Act 2009 s.230(1)(b).

 12   See Item 5 in answer to Q.2.5 in the Form F32 – Application for a bargaining order filed by the UWU on 30 March 2020.

 13   Order 5 in the Draft Form of Orders filed by the UWU on 2 April 2020.