Application for a bargaining order - good faith bargaining requirements.

[1] Towards the close of business on Monday, 27 July 2009, an application by the Australian Municipal, Administrative, Clerical and Services Union ("ASU") was received in my chambers, seeking an urgent order under s.229 of the Fair Work Act 2009 ("the Act"). The application was against the Queensland Tertiary Admissions Centre Limited ("QTAC"). The application was listed for conference late the next afternoon, on Tuesday, 28 July 2009. For reasons given immediately below, I have undertaken to commit to writing promptly (and no doubt with certain consequent infelicities) my views as to whether orders should issue, and if so, what their terms might be.

[2] The urgency of the application was the result of QTAC conducting a ballot of employees commencing at 8.30 am on Wednesday, 29 July 2009 for a new enterprise agreement (a successor agreement to its prior employee collective agreement); an outcome the ASU sought to divert by a request that the Fair Work Australia make certain orders. The ASU complained that QTAC had contravened various provisions of section 228 of the Act, and orders under section 229 of the Act were warranted.

[3] Section 228 of the Act reads 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.

(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."

[4] The urgency of the request for orders raises certain preliminary issues, particularly in so far as I was not able to proceed other than on submissions from the bar table and documentary materials handed up. In the event that I might have been required to rely on disputed facts or issues of credit for the purpose sought, the application might not have been possible to proceed as it did on grounds of procedural fairness.

[5] But in the current circumstances, though there are many points of difference between the parties as to particular facts and conversations and events, there is sufficient common ground and documented evidence upon which to enable me reasonably to make orders (albeit not in the more expansive terms sought by the ASU).

[6] I should add that there was no argument put to me that I should or could as a matter of power make interim or interlocutory orders in the circumstances of this application, though invariably such questions might arise when urgent orders are sought.

[7] It appears to me that QTAC has since April of this year sought to negotiate with its employees directly a replacement agreement. The bulk of the content of that proposed agreement was present at 30 June 2009. However, that content was further modified by internal discussions and committee activities until 16 July 2009, and particularly so in relation to whether QTAC could re-orientate its business model to introduce an RDO (though other changes consequent of the new legislation were also included). Further, in the documentation provided to me it also appears that QTAC's final offer was communicated to employees on its intranet on 22 July 2009.

[8] Consequently, in my view, the negotiation or bargaining process did not cease until well into July 2009, some three weeks after the commencement of the Act.

[9] It had become evident to the employer from April 2009 that the ASU had an interest in the agreement making process and on 6 May 2009 the ASU had served a log of claims on the employer in respect of the same. Neither party appears to have taken any subsequent action to initiate any meetings, though the ASU claimed it understood that QTAC would invite it to meetings. A brief and informal, ad hoc meeting was held on 7 July 2009 between the employer and the ASU (at which the union was informed an RDO was likely unaffordable as an agenda item) but other than that the bargaining process unfolded between QTAC and its employees (or their representative agents and committee) directly.

[10] The ASU provided a notice of bargaining representative for purposes of s.178(2) of the Act to QTAC on 10 July 2009, though as stated above the bargaining process continued beyond this time.

[11] The Act does not appear to preserve any negotiating process commenced prior to 1 July 2009, though arguably it may be a matter for FWA's discretion at s.230(1)(c) of the Act whether any orders might be made in circumstances where negotiations reached a marked level of maturity by the commencement date of the legislation.

[12] That said, in my view, it is apparent that QTAC excluded the ASU from meetings and discussions about the proposed enterprise agreement at a time when the agreement content was not fixed or immutable. By so doing, QTAC contravened s. 228(1)(e) of the Act, which reads:

"(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining""

[13] The Explanatory Memorandum, at item 951 reads as follows:

"951. The good faith bargaining requirements are generally self-explanatory. The last requirement, 'refraining from capricious or unfair conduct…' is intended to cover a broad range of conduct. For example, conduct may be capricious or unfair conduct if an employer:

• fails to recognise a bargaining representative;

• does not permit an employee who is a bargaining representative to attend meetings or discuss matters relating to the terms of the proposed agreement with fellow employees;

• dismisses or engages in detrimental conduct towards an employee because the employee is a bargaining representative or is participating in bargaining; or

• prevents an employee from appointing his or her own representative."

[14] Further, in my view, it is apparent that the QTAC also contravened s.228(1)(f) of the Act, which reads:

"(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(f) recognising and bargaining with the other bargaining representatives for the agreement."

[15] The Supplementary Memorandum in respect of s.228(1)(f) reads:

140. This item inserts an additional good faith bargaining requirement in subclause 228(1), being the requirement that a bargaining representative must recognise and bargain with other bargaining representatives for a proposed enterprise agreement."

[16] QTAC did not recognise the ASU as a bargaining representative over the course of the discussions and meetings in July 2009 at the time when it was apparent the ASU had such representative standing.

[17] I am not satisfied that QTAC contravened s.228(1)(a) of the Act as the ASU claimed. Section 228(1)(a) of the Act reads as follows:

"(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;"

[18] There were no scheduled meetings proposed by either bargaining representative such that one side failed or refused to attend or participate in.

[19] That said, in my view, the circumstances of this application warrant the making of bargaining orders.

[20] Before I make orders, however, I must be satisfied certain preconditions to the making of the application itself have been met, along with the preconditions for making a bargaining order.

[21] The preconditions to making an application are set out at s.229(4) of the Act.

[22] Clearly, s.229(4)(a)(i) of the Act has been met in that the ASU has concerns that QTAC is not meeting the good faith bargaining requirements.

[23] However, there is nothing before me that satisfies me that the requirements of s.229(4)(b) of the Act have been met. Section 229(4)(b), (c) and (d) read as follows:

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

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

(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."

[24] Despite this, s.229(5) of the Act states as follows:

"Non-compliance with notice requirements may be permitted

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

[25] The ASU wrote QTAC on 24 July 2009 demanding that the ballot process be abandoned and a schedule of discussions occur in relation to its log of claims (from May 2009). Such correspondence does not meet the requirements of s.229(4)(b) or s.229(4)(c) of the Act.

[26] However, it appears to me that the circumstances before the ASU reasonably precluded the provision of a written statement of concerns with a timetable for addressing those concerns before making the application. There was simply insufficient time to act in such a procedurally rich manner when the ballot was pressed. Clearly, the circumstances in which compliance with s.229(4)(b) or s.229(4)(c) of the Act depend on the circumstances of each case.

[27] In view of the above, I am satisfied that the prerequisites for making an application under s.228 of the Act have been met.

[28] Section 230 sets out the preconditions to making bargaining orders. Section 230 reads as follows:

(1) FWA 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) FWA is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

(2) FWA must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(c) a scope order in relation to the agreement is in operation;

(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

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

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

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

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

[29] Section 230(1)(a) of the Act has been met in that I have received and considered an application for orders made by the ASU, in this case. I have also concluded above that I should make an order in the circumstances of this case. The requirement of s.230(1)(b) has been satisfied, as is evident from the discussion generally in relation to this section.

[30] It is evident that the requirement of s.230(2)(a) of the Act has been met in so far as the employer, QTAC, has initiated bargaining for an agreement.

[31] I am also satisfied, as I have found above, that the requirements of s.230(3)(a)(i) of the Act have been met in that QTAC has not met the good faith bargaining requirements.

[32] Finally, for the reasons given above in relation to effective waiver by way of s.229(5) of the Act of the requirements of s.229(4)(b) of the Act, I find that compliance with s.230(3)(b) of the Act is not necessary in the current circumstances.

[33] I consider the following orders to be warranted in the circumstances before me:

1. QTAC cease to conduct its agreement ballot scheduled to commence at 8.30 am on Wednesday, 29 July 2009;

2. QTAC and the ASU schedule four meetings to be conducted over two weeks at an agreed time and place. The duration of the meetings to be determined by the bargaining representatives; and

3. the applicant bargaining representative may re-apply for purposes of further meetings, but only if there is appropriate evidence that QTAC and the ASU have been unable to reach agreement on the same, and that such meetings are not for capricious purposes but have a real and apparent prospect for achieving an agreement.

[35] The period of operation of this order is governed by section 232 of the Act.

J Hobson for the Australian Municipal, Administrative, Clerical and Services Union

J Wells for the Respondent Queensland Tertiary Admissions Centre Limited

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