[1] This decision concerns an application by the National Union of Workers (NUW) for orders pursuant to s 229 of the Fair Work Act 2009 (the Act). The orders are sought against Patties Foods Ltd (Patties) which operates a food manufacturing facility in Bairnsdale Victoria.

[2] The application was heard on 28 June 2011. At the hearing Mr D Melling represented the NUW, Mr B Shaw of counsel represented Patties and Mr T Hale represented the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) which was granted leave to intervene in the matter in support of the NUW's application. An affidavit of Mr J Pentney the General Manager, People and Organisation of Patties was admitted into evidence without objection.

[3] The facts in this matter are not in dispute. Patties has commenced a bargaining process for a collective enterprise agreement to apply to its Bairnsdale operations. Pursuant to s 173 of the Act it distributed a notice to employees informing them of their representational rights with respect to the negotiations. Employees elected twelve bargaining representatives and the NUW and the AMWU also provided bargaining representatives for their members not otherwise represented in the process.

[4] The first formal bargaining meeting conducted with all parties was on 1 June 2011. At the end of the meeting, representatives of the NUW handed out a letter to non union employee representatives. The letter requested certain information to be provided to the NUW by 3 June 2011. The information requested to be provided was:

• A notice concerning their appointment as a bargaining representative compliant with the Act,

• A copy of any claims for improvements in wages and/or conditions of employment that the bargaining agent intends to pursue in the bargaining process,

• Contact details to facilitate quick and easy communications between the NUW and the employee nominated representatives.

[5] After being issued with the letter an employee representative approached Patties expressing concern about the letter and seeking advice as to what action he should take. Patties sought advice on the matter and distributed a letter to the bargaining representatives. The letter is undated but appears to have been sent on or about 2 June 2011. I will refer to it as the 2 June letter. As the 2 June letter is central to this case I set it out in full:

"Re: NUW Enterprise Bargaining letter to Employee Representatives

I understand that you may have received a letter from Dominic Melling from the NUW requesting documentation and personal contact details within specified time frames.

Patties Foods wishes to advise that you do not have to respond to this request and in our view the request is in contravention of the Fair Work Act 2009 Regulations, namely the following clause:

2.06 Appointment of bargaining representatives - independence

A bargaining representative of an employee must be:

(a) free from control by the employee's employer or another bargaining representative; and

(b) free from improper influence from the employee's employer or another bargaining representative."

This clause clearly requires the employee bargaining representatives to be free from control by the employer (Patties Foods) and any other bargaining representative including the NUW or other unions.

Your only responsibility is to the employees you have been requested to represent and you do not have to provide information to anyone else. All the details of claims presented to the company have been consolidated and shared with all bargaining representatives and the bargaining meetings will be the forum where all items can be discussed.

Please feel free to contact Sam Johanesen if you have any questions or concerns in relation to this matter.

[6] Patties has instituted a process, agreed to by all bargaining representatives, about how information will be distributed to facilitate the bargaining process and as part of that process has provided a matrix detailing the status of all claims, whether in the form of logs of claims or individual proposals put by employees through their bargaining representatives.

[7] On 10 June 2011 the NUW wrote to Patties suggesting that the letter sent by Patties to bargaining representatives breached Patties' obligations under s 228(1)(e) of the Act to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining.

[8] On 17 June 2011 Patties responded to the 10 June NUW letter. In its response it denied that its 2 June letter was in breach of its good faith bargaining requirements. It suggested that the 1 June NUW letter was in breach of the Fair Work Regulations 2009 (the Regulations) and in breach of the good faith bargaining requirements of the Act.

[9] On receipt of the 17 June letter, the NUW made application under s 229 of the Act for orders that Patties withdraw the 2 June letter, encourage bargaining representatives to respond to requests for relevant information in a timely manner and undertake not to take any further action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining.

[10] At the proceedings before me on 28 June Patties offered to undertake not to engage in capricious or unfair conduct that undermines freedom of association or collective bargaining, as it said that this was no more than required by the Act. Although it contended that its 2 June letter did not have that character, it indicated that it would be prepared to issue a new version of the 2 June letter in neutral terms which did not express a view about the legality of the 1 June NUW letter or suggest that employee bargaining representatives did not have to provide information to anyone other than the employees they represent. It otherwise submitted that it had not breached any good faith bargaining requirement.

[11] The NUW contends that in sending the 2 June letter and not agreeing to retract it, Patties has contravened the following good faith bargaining requirement in Section 228 of the Act:

"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:

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

[12] Section 229 sets out a number of prerequisites for a bargaining order. I am satisfied that the NUW has complied with those prerequisites by virtue of its 10 June correspondence and the response of Patties of 17 June.

[13] Section 230 sets out the circumstances in which an order may be made. I am satisfied that the requirements in s 230(2) are met by Patties' initiation of an enterprise bargaining process.

[14] The question of whether Patties has not met or is not meeting the good faith bargaining requirements is the central issue in this case and will be considered further below.

[15] Before issuing any order FWA must be satisfied that it is reasonable in all the circumstances to make the order.

[16] The central issue in this matter is whether the 2 June letter amounted to capricious or unfair conduct that undermines freedom of association or collective bargaining.

[17] The 2 June letter was issued by Patties in response to concerns raised by one of the recipients and a request for advice as to how to respond to the 1 June NUW letter. The letter gives firm advice that it is not necessary that the employee bargaining representatives respond to the letter and that the 1 June NUW letter contravenes the Act and Regulations.

[18] The context of this correspondence is important. The election of twelve employees as bargaining representatives under the Act is apparently not the NUW's preferred approach to the bargaining. It presumably would have preferred that it was one of a lesser number of bargaining representatives and had a more prominent role as the representatives of Patties' employees.

[19] The 1 June NUW letter states that it seeks the specified information to assist the NUW, although it is not clear whether the assistance sought is purely for bargaining purposes or whether it is at least partly directed to enable the NUW to play a more central co-ordinating role for employee bargaining representatives. The letter is a formal request for information to be provided within a short time frame.

[20] It appears that Patties and at least one of the bargaining representatives took the letter as an attempt to exert some influence over the other employee bargaining representatives. Further, it appears that the general circumstances and this correspondence have contributed to an element of tension between the NUW and at least one bargaining representative and the NUW and Patties.

[21] The general circumstances of these negotiations require the parties to act with some sensitivity and respect towards each other and to ensure that they comply with the provisions of the Act and the Regulations. They also require the parties to ensure that they do not overreach their roles or overreact to the actions of other parties. Although the integrity of communications is important, it must be remembered that there will inevitably be extensive communications between the various parties and stakeholders involved in the negotiations of an enterprise agreement. The parties will adopt an approach to their communications which they believe will best achieve their objectives. Some of those communications could well be robust, controversial and at times even disrespectful or mistaken. In my view, in the absence of a pattern of deliberate improper communications, an applicant will find it difficult to establish that a single communication constitutes capricious or unfair conduct of the requisite type.

[22] I can see how the direct nature of the 1 June NUW letter may be seen to form part of an attempt to exert influence over the employee bargaining representatives. However, in reality the letter was only a request for information and the information it seeks is capable of being relevant to the NUW in participating in the bargaining process.

[23] The advice by Patties in the 2 June letter that bargaining representatives do not need to respond to the NUW request is not in my view unreasonable. Nor is its advice as to the provisions of the Regulations regarding improper influence and control. Some elements of the letter could be said to be unnecessary. However, the letter only constitutes advice to the bargaining representatives. They are free to consider all advice they receive and make their own decisions.

[24] I note the submissions of Patties in the proceedings before me. In all of the circumstances I am not persuaded that the 2 June letter constitutes capricious or unfair conduct that has undermined freedom of association or collective bargaining.

[25] As I am not satisfied that Patties has not met or is not meeting the good faith bargaining requirements of the Act the NUW has failed to establish an essential ingredient for a good faith bargaining order. It is not necessary to consider other requirements for an order. The application for bargaining orders under s 229 is dismissed.

T. Hale for the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

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