s.234 - Application for an intractable bargaining declaration

Application for an intractable bargaining declaration - whether no reasonable prospect of agreement - no meetings for many months - application dismissed

• [1] The following is an edited version of a decision delivered ex tempore earlier today. Russell Wakefield has made an application under s 234 of the Fair Work Act 2009 (Act) for an intractable bargaining declaration in relation to a proposed enterprise agreement to cover employees of Medlog Regional Pty Ltd (Medlog), which in March 2024 acquired the transport business previously known as Linx. The proposed agreement would replace the Linx Logistics (Long Distance & Interstate Drivers) Enterprise Agreement 2018, which reached its nominal expiry date on 30 June 2021. Mr Wakefield is a bargaining representative for many of the employees who would be covered by the proposed agreement. Bargaining for a new agreement commenced in March 2022. On 18 June 2023, Mr Wakefield lodged an application under s 240 of the Act to have the Commission deal with a bargaining dispute. The parties participated in a number of conferences before the Commission but the dispute was not resolved. Bargaining continued for some months. Several matters remained unresolved, including rate increases and superannuation. The last bargaining meeting occurred on 9 July 2024.

• [2] Mr Wakefield contended that the bargaining had broken down and that the parties were at a stalemate. He said that negotiations for a new agreement had commenced several years ago and despite the involvement of the Commission, no agreement had been reached. Medlog submitted that there was no stalemate. Bargaining had stalled in July 2024, in part because the Transport Workers Union had withdrawn from the negotiations leaving some drivers without a bargaining representative. However, Medlog now wanted to restart the negotiations by circulating a revised draft agreement to employees for feedback and potentially for a vote, after first giving unrepresented drivers an opportunity to appoint a bargaining representative.

• [3] Before the Commission can make an intractable bargaining declaration, the requirements of s 235 of the Act must be met. Section 235(1) provides that a declaration may be made only after the end of the nine-month minimum bargaining period (see s 235(5)). This requirement has been met. Section 235(2)(a) states that the Commission must have dealt with the dispute about the agreement under s 240, and that the applicant for the declaration must have participated in the Commission's processes to deal with the dispute. This requirement has also been met.

• [4] However, s 235(2)(b) requires the Commission to be satisfied that there is 'no reasonable prospect' of agreement being reached if the Commission does not make the declaration. I am not satisfied that this is the case. The bargaining representatives have not met to discuss the proposed agreement for many months. In my assessment, there is no stalemate in the negotiations. Rather, the negotiations have stalled. I accept that Medlog now wants to restart the negotiations by circulating a revised agreement to employees. In my view, there is a reasonable prospect that an agreement will be reached.

• [5] Further, s 235(2)(c) requires that before making a declaration, the Commission must be satisfied that it is reasonable in all the circumstances to make the declaration, taking into account the views of the bargaining representatives for the agreement (s 235(2)(c)). I am not satisfied that it would be reasonable to make a declaration in the present circumstances. To do so would be premature. The renewed negotiations should be given a chance to run their course.

• [6] The Commission can only make an intractable bargaining declaration if it is satisfied of the matters in s 235(2). I am not satisfied of the matters in ss 235(2)(b) or 235(2)(c). Consequently, there is no basis for the Commission to grant the application made by Mr Wakefield. The application is therefore dismissed.

Printed by authority of the Commonwealth Government Printer