Fair Work Act 2009

s.229 - Bargaining order

Shop, Distributive and Allied Employees Association

Application by SDA for a bargaining order re Sephora Australia Pty Ltd - application dismissed.

• [1] The Shop, Distributive and Allied Employees Association (SDA) has made an application for bargaining orders under s 229 of the Fair Work Act 2009 (Cth) (Act) against the employer, Sephora Australia Pty Ltd (Sephora).

• [2] As will be apparent from the chronology of events I set out below, the matter was brought on with initial urgency, as a vote of employees was due to commence. While that vote has been concluded (and approved by a valid majority), the SDA presses its application in an amended form. While the imminent urgency of a pending vote is no longer present, the application retains a degree of urgency, because the SDA is seeking orders directed at steps relevant to the agreement-approval process that has now separately commenced with the Commission. My reasons are accordingly brief reflecting these timing issues.

• [3] While I have found that the SDA succeeded on its case that Sephora did not meet the good faith bargaining requirements, I am not satisfied that it is reasonable to make good faith bargaining orders in circumstances where a ballot to approve a proposed enterprise agreement has concluded and the application for the approval of that agreement is currently before the Commission. The application is accordingly dismissed.

• [4] The application was made late on Friday, 3 May 2024. The heart of the application, as filed at that time, was for bargaining orders to restrain Sephora from conducting a ballot of employees scheduled to take place on Monday, 6 May 2024. The exact timing of the ballot was not indicated in the application. No urgent request for expedition was made until about 10.30am, Monday 6 May 2024, after which the matter was allocated to me and I listed the application for hearing at 3pm that day. During the course of that hearing, I was informed that not only had the voting period opened but it was due to close at 4pm that day.

• [5] At that point in time, the only evidence before me was the documentation attached to the SDA's Form F32 application. While that material would have been sufficient to satisfy me of a 'prima facie case' or 'serious question to be tried' for an interim order, I indicated to the parties that my view was that the tests for an injunction did not apply to an interim order for bargaining orders. I expressed my view, which I hold, that the Commission must actually be "satisfied" of the matters in s 230 before an interim order could issue. As the issue was ultimately not canvassed in detail, it is sufficient for me to record that I share the tentative view expressed by Colman DP in The Trustee For P&J Cunningham Family Trust t/a Health Select Group v Victorian Ambulance Union Incorporated [2020] FWC 142 at [25], and consider the principles are analogous to the Full Bench's consideration of an interim order in Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another [2020] FWCFB 4514. Succinctly stated, the requirement that the Commission "is" satisfied in s 230(1)(c) and the matters that the Commission "must" in "all" cases be "satisfied" about required by s 230(3) (which includes having not met the good faith bargaining requirements) precludes an interim order being made on the basis of a serious question or prima facie case and the balance of convenience. Rather, actual satisfaction of the statutory prerequisites must be held.

• [6] Prior to the vote concluding, the employer's representative proposed a short adjournment for the purpose of allowing him to receive the ballot result (expected within minutes after 4pm on 6 May 2024) and to resume with the benefit of that result being known. The SDA agreed to this course.

• [7] Upon the hearing resuming, the employer informed the Commission that the ballot outcome was that there were 616 employees eligible to vote and, of them, approximately 80 percent voted. Of those who voted, approximately 79 percent voted in favour of the agreement. The hearing on 6 May 2024 was adjourned shortly after, on the basis that the SDA would reflect on its position and would advise the Commission of its intentions by the end of the following day.

• [8] On 7 May 2024, the SDA indicated that its application was pressed. I listed the matter for a mention at 2pm, 8 May 2024. Prior to the mention hearing, the SDA filed a Form F1 seeking "in addition" to the orders requested in its Form F32 various further orders. I grant permission for the SDA to amend its application.

• [9] At the mention hearing on 8 May 2024, I issued directions requiring the SDA to file and serve its evidence by 10am, 9 May 2024 and Sephora by 10am, 10 May 2024. The matter was listed for a hearing at 2pm, 10 May 2024. Permission was granted for each party to be legally represented.

• [10] The SDA filed an affidavit and exhibits by Mr Ali Amin (Industrial Officer for the SDA) and Sephora filed a witness statement and exhibits by Ms Claire Seville (Head of Human Resources and Education for Sephora). At the hearing, both witnesses were cross-examined.

• [11] In the SDA's Form F32, the orders it seeks are as follows:

"1. That the Respondent has breached its good faith bargaining requirements.

2. That the Respondent be restrained from proceeding with an employee vote on a proposed enterprise agreement until the report back conference before the Commission.

3. The Respondent must attend and participate in bargaining meetings with the SDA and employee bargaining representatives including an initial meeting within 21 days after the order is made.

4. One week prior to the first meeting, each bargaining representative will confirm in writing its claims for a new agreement. Where appropriate, the bargaining representative may provide draft wording for the agreement.

5. At the meeting, the parties will work through each bargaining representative's claims.

6. The SDA shall make notes of the meeting and distribute them. The notes shall list the claim and whether each bargaining representative agrees. If there is no agreement, it shall be noted whether further information is to be provided and distributed ahead of the next meeting, whether it will be subject to further discussion, if it requires consultation, if it is not agreed, or is withdrawn. The notes will be distributed within three days from the meeting and if a bargaining representative has a concern with the notes, then that concern is to be raised within two days of receipt by email to the bargaining representatives.

7. The matter shall be listed for report back conference before the Commission after the third meeting."

• [12] It the SDA's Form F1, it seeks the following additional orders:

"In accordance with s. 231(a) and (c) of the FW Act, an order that, within three days and prior to the making of any application seeking approval of the Agreement, the Respondent write to each employee who would be covered by the proposed Sephora Pty Ltd National Enterprise Agreement 2024 ("the Agreement"):

A. advising that, in the course of bargaining for the Agreement, Sephora Pty Ltd engaged in a breach of the Good Faith Bargaining Requirements of the FW Act by failing to bargain with the Shop, Distributive and Allied Employees' Association ("the SDA"); and

B. advising that, each employee who would be covered by the Agreement is entitled to seek to be heard in relation to the approval of the Agreement;

C. advising that, in determining whether to approve the Agreement, the Commission is required to take into account whether the Agreement has been genuinely agreed to by employees; and

D. providing each employee with a copy of the Statement of Principles on Genuine Agreement."

• [13] The current enterprise agreement applying to Sephora is the Sephora Pty Ltd Enterprise Agreement 2014 (2014 Agreement). The 2014 agreement was approved by the Commission[1] on 21 January 2015 and operated on and from 28 January 2015. The nominal expiry date was 28 January 2019. The SDA is not covered by the 2014 Agreement.

• [14] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act. One of those changes was to permit an employee bargaining representative to commence bargaining for a proposed new enterprise agreement to replace an existing enterprise agreement: s 173(2)(aa) and (2A). It is not necessary to canvass in detail the requirements of these new provisions but one element of relevance is that a request made under those provisions maybe made if no more than 5 years have passed since the nominal expiry date of the existing agreement. For the 2014 Agreement, that date was therefore 28 January 2024.

• [15] The SDA was aware of the above dates and, on 22 January 2024, made a request to Sephora, expressed to be in accordance with s 173(2A), to commence bargaining for a proposed new enterprise agreement. There was no dispute that the request was in any way invalid and I proceed on the basis that it was validly made.

• [16] Accordingly, s 173(3) required Sephora to issue a 'notice of employee representational rights' (NERR) within 14 days. Sephora did not do so. I pause, briefly, to note that Sephora's explanation for the delay was that it was internally considering issues such as the scope of employees to be specified in the NERR. While those considerations are understandable, that does not obviate the requirement to comply with the Act. This is particularly the case where a request to initiate bargaining under s 173(2A) can only be made where the scope of the proposed new agreement is to cover the "same, or substantially the same," group of employees. A NERR issued in response to such a request would be expected to cover the same or substantially the same group of employees - if that was desired to be changed later by any affected party, there are mechanisms to do so (including by bargaining).

• [17] In addition to formally commencing bargaining, the SDA's letter sent on 22 January 2024 indicated the SDA wanted a "comprehensive engagement with Delegates and members", which would require meetings, a survey period, feedback and a "Log of Claims". The SDA suggested as a first step would be for Sephora and SDA representatives to meet in February 2024 and "discuss a path forward to enable a negotiation process."

• [18] The letter was sent under cover of an email from an employee of the SDA. The letter itself was signed by SDA's National Secretary-Treasurer, with the letterhead containing its address as Level 6, 53 Queen St, Melbourne (being the national office for the SDA). The email chain also included an initial attempt to serve the letter by the SDA's National Industrial Officer, Mr Gavin van Rensburg.

• [19] The email and letter was received and, on 25 January 2024, acknowledged by Sephora's Head of HR and Education, Ms Seville.

• [20] Notwithstanding a requirement for a NERR to be issued within 14 days, the SDA did not immediately press a request for the NERR once that time elapsed but it did do so soon after.

• [21] On 7 March 2024, there was correspondence between the SDA (between its National Industrial Officer and Ms Seville) about the matter. Ms Seville stated that Sephora was "still working through the detail". Ms Seville gave the following commitment (my emphasis): "I will certainly share our Nerr and time frames in weeks to come."

• [22] On 4 April 2024, Sephora issued a NERR. It did so by placing a copy on staff notice boards in all relevant stores. I have assumed for present purposes that the notice boards in question constituted a "conspicuous location that is known and readily accessible" to employees for the purpose of rule 2.04(7) of the Fair Work Regulations 2009 and s 173(5) of the Act. I do note that the SDA contends that Sephora "failed to distribute the NERR" as required, although the evidence for that assertion appears to be hearsay and I do not make that finding sought by the SDA for the limited purpose of the application before me. No evidence indicated that the NERR was circulated to employees by any other means although as there was some reference to "Whatsapp" messaging groups, it is possible that some store managers may have alerted staff to the NERR and/or an enterprise bargaining "Red Folder" that Ms Seville instructed to be made available to staff in each store. The Red Folder was a folder prepared by Sephora containing a copy of the 2014 Agreement, a copy of the General Retail Industry Award 2020, extracts from the National Employment Standards about leave and was prominently labelled 'Enterprise Agreement 2024 Store File'.

• [23] Ms Seville states that store managers were instructed to take a photograph of the NERR on the staff notice boards in each store and confirm with her this had been done. There was evidence of this occurring for at least one store (albeit, as with the SDA's evidence about the circulation of the NERR, provided on a largely hearsay basis).

• [24] On 4 April 2024, Ms Seville also caused a copy of the NERR to be sent by registered post to the SDA. Ms Seville's witness statement explained her view that a hardcopy of the NERR "had" to be sent to the SDA. It is not clear why that view was held, let alone sending by hardcopy. By s 173(1), the employer is required to give notice to each "employee"; it is not required to give a copy to an employee origination (i.e. union) although this no doubt commonly occurs.

• [25] That copy was not sent to the SDA's national office address (and where the request to commence bargaining was initiated from) but instead to the physical address of the SDA's NSW branch office. Ms Seville stated in her oral evidence that the NSW branch office was selected because NSW was the state in which Sephora had the most stores. It was also not clear why the physical address was used, rather than the mailing address for that branch.

• [26] There was a dispute about whether the NERR was sent to, or at least received by, the SDA. The SDA's evidence, which I accept (albeit noting much of it is necessarily hearsay), is that no relevant person has any awareness of that copy of the NERR sent to them. However, I accept Sephora's evidence that the NERR was posted and, indeed, delivered to that address (which is reflected by supporting evidence provided by Australia Post). Ms Seville states that sending the hardcopy document to the SDA was consistent with her approach to the stores - all of whom were sent a hardcopy. The Australia Post delivery information states it was delivered on Wednesday, 10 April 2024 at about 2.44pm. The information from Australia Post was not a matter that Sephora was aware of at the time but since learnt about during the preparation of Ms Seville's witness statement. The position can be contrasted to the active steps Ms Seville took to ensure that proof of delivery to the stores of the NERR and 'Red Folder' was confirmed to her. Ms Seville states that she expected that the NERR would have arrived within about 48 hours of being sent.

• [27] It is unclear what happened to the SDA's copy of the NERR after it was delivered, although I accept the SDA's evidence that none of the people who have been in communication with the SDA to that point in time were aware of it and it does not appear to have been successfully forwarded internally to any relevant person.

• [28] There was no other correspondence (by post, email or otherwise) nor any other form of communication (e.g. calling by mobile phone) from Ms Seville or any other person from Sephora to the SDA about any aspect of bargaining subsequently sent to the SDA until the day these proceedings were commenced.

• [29] Sephora's evidence then describes that, in the "days following 4 April 2024", Ms Seville received a series of emails from employees wishing to be recognised as bargaining representatives. Those emails were not before me. It was not made clear to me whether those individuals were representatives for themselves or for others or both. A total of 32 such bargaining representatives was reached, whom I will describe as 'staff bargaining representatives' to distinguish them from the SDA.

• [30] On 11 April 2024, Ms Seville was able to confirm with the staff bargaining representative that "they would be invited to the first bargaining meeting" which was to occur on 12 April 2024. The email with that information was not provided to me but I infer the invitation was sent, given Ms Seville describes the first bargaining meeting on 12 April 2024.

• [31] The SDA was not invited to the meeting - or any meetings that followed - and I also find that the SDA was not aware of such meetings. There was no evidence before me to suggest that the SDA might have been made aware of the meetings through a third party (eg a member).

• [32] Ms Seville was challenged about the absence of any communication sharing the "time frames" referred to in Ms Seville's email sent on 7 March 2024. Ms Seville's evidence was (in substance) that she considered the sending of the NERR to be sufficient. Ms Seville appears to have proceeded on an assumption that giving a copy of the NERR to the SDA placed the requirement for any future meeting with the SDA to be a matter to be initiated by the SDA (notwithstanding the SDA had, in multiple instances, previously expressed its interest in meeting). Having not heard from the SDA after the NERR was sent via post, Ms Seville stated in her oral evidence she did not otherwise seek to email the SDA because she "naturally assumed you [the SDA] were too busy or didn't want to take part in it".

• [33] I find Ms Seville's explanations unpersuasive.

• [34] I find that Ms Seville considered that sending a hardcopy of the NERR was (in her view) the sufficient minimum step necessary for Sephora to discharge any obligations it had and, notwithstanding the SDA's repeated statements that it wished to meet and bargain, Ms Seville had no intention to further apprise the SDA of "time frames" for bargaining or at all.

• [35] In addition to the meeting on 12 April 2024, four further meetings with staff bargaining representatives followed on, respectively, 16, 18, 24 and 26 April 2024.

• [36] On 15 April 2024, the first draft of a proposed enterprise agreement was sent to the 32 staff bargaining representatives. No copy was sent to the SDA.

• [37] On 17 April 2024, Ms Seville's evidence states that the then-draft agreement was "made available" to employees, although it is not clear to me how it was made available. I infer a copy was placed in the Red Folder and some form of notification to staff was made in relation to it.

• [38] Sephora has a regular internal communication newsletter called 'Weekly Flame' (although it is not necessarily sent weekly). Prior to 21 April 2024 (I infer on about 20 April 2024), staff were sent a Weekly Flame that foreshadowed a "final EA" meeting with representatives on 24 April 2024 and referred to all staff having now "received the draft of the new EA". The email also foreshadowed "information sessions on the EA and the voting process", and indicated that the voting day was anticipated to be 6 May 2024.

• [39] A 'Weekly Flame' with similar content was sent prior to 28 April 2024 (I infer about 27 April 2024).

• [40] On 26 April 2024, a memorandum was posted on staff notice boards advising of a proposed ballot that would be conducted on Monday, 6 May 2024. The memorandum referred to a number of "information sessions" that would ensue, and Ms Seville's evidence was that ten such sessions took place.

• [41] I have set out above the events of Friday, 3 May 2024 and the filing by the SDA of the current application.

• [42] Ms Seville's evidence contained a report by Vero Voting, which was the ballot agent for the vote conducted on 6 May 2024. The SDA does not accept that an enterprise agreement was 'made'. I understand this submission to be directed toward a different consideration, namely whether the enterprise agreement ought be approved. On the material before me, there was an enterprise agreement that was 'made'.

• [43] On 9 May 2024, Sephora filed an application for approval of the enterprise agreement made on 6 May 2024. That application was supported by a Form F17B declaration, which in turn attached a small number of documents in support. I will return to this below, as the SDA contends that the prospects of the enterprise agreement not being approved by the Commission under s 186 of the Act is a matter I should have regard to in support of bargaining orders for future bargaining.

• [44] Section 228 of the Act defines what are the 'good faith bargaining requirements'. It is as follows:

"228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the g_ood 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."

• [45] Section 229 permits applications by a "bargaining representative" for orders under s 230. The SDA is a bargaining representative. I am satisfied that the SDA's application was made within the times permitted by s 229(3)(a). I am also satisfied that the prerequisites under s 229(4) - as affected by s 229(5) - for making an application for bargaining orders are met. Section 229(4)(b) requires written notice of the SDA's concerns, which was given on 3 May 2024 by email. Section 229(4)(c) in turn required Sephora to be given a "reasonable time" within which to respond to those concerns. Whether or not Sephora was given a reasonable time to respond, I am satisfied for the purposes of s 229(5) that it is appropriate in all the circumstances to consider the application given the nature of the matters raised and what was, at the time, an imminent vote that was scheduled to occur.

"(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."

• [47] With reference to s 230(1)(b), the "requirements" of s 230 include (relevantly) a request under s 173(2A) having been made or the employer having agreed to bargain - I am satisfied of both those matters. Importantly, s 230(3)(a)(i) requires the Commission to be satisfied that one or more bargaining representatives (here, Sephora) has not met, or are not meeting, the good faith bargaining requirements in s 228. The SDA relies upon s 228(1)(b), (e) & (f).

Were the good faith bargaining requirements contravened?

• [48] I am satisfied that Sephora has not met the good faith bargaining requirements relied upon by the SDA. At the time the NERR was issued, Sephora knew (or, more correctly, it believed) that the SDA had at least some members within the relevant staffing cohort at Sephora. I find below that the SDA did in fact have members.

• [49] The statutory scheme makes the SDA the bargaining representative for those members, unless those members take a positive step to appoint another bargaining representative: s 176(1).

• [50] In failing to take any step to alert the SDA to the fact of the bargaining meetings to be arranged - or to otherwise arrange a different meeting with the SDA if that was Sephora's preference - it failed to recognise and bargain with an important bargaining representative (s 228(1)(f)) in a context where the SDA had repeatedly placed Sephora on notice of its desire to bargain. Indeed, the evidence before me shows that the only reason why bargaining was occurring at all was due to the SDA's initiation of bargaining by its letter dated 22 January 2024.

• [51] For the same reason, I consider that Sephora engaged in capricious and unfair conduct that undermined collective bargaining (s 228(1)(e)). Again, the statutory scheme contemplates that union members will automatically be represented by their union as a bargaining representative without any further step being taken by them. Sephora's decision to not invite the SDA to any bargaining meetings was tenuously based upon an apparent lack of interest by the SDA following the issuing of the NERR. In circumstances where the SDA's interest was on record, the lack of communication by the SDA ought to have alerted the company to the possibility that the NERR sent by Sephora to the SDA had gone awry. Sephora was (correctly) diligent in ensuring that its own store managers provided positive confirmation of various steps that Sephora considered needed to be taken - Sephora's determined lack of curiosity regarding the SDA stands in contrast.

• [52] However, even if the relevant people within the SDA were aware of the NERR, the NERR itself discloses no information at all about any of the bargaining meetings that were about to occur. This is not a case where bargaining might have reasonably been anticipated to extend over a considerable period of time; the evidence indicates it was Sephora's intention to proceed efficiently. It was entitled to do so, but that simply underscores the need to have alerted the SDA to the meetings Sephora was conducting in a timely manner rather than waiting for the SDA to organically find out about the meetings or to make a positive request of Sephora.

• [53] Finally, by 15 April 2024, a "first draft" of a proposed enterprise agreement had been sent to every bargaining representative - except the SDA. I consider that draft was "relevant information" that was required to be disclosed for the purposes of s 228(1)(b). Such information was required to be disclosed in a "timely manner", which, in the circumstances here, should have been on or very shortly after the time it was sent to the other bargaining representatives. I make similar observations, and findings, for other "relevant information" such as the memorandum and the final agreement proposed to be put to a vote.

• [54] The employer relies upon the statement by Flick J in Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764; (2012) 206 FCR 576 (Endeavour Coal), where his Honour observed at [34] that s 228 does not require a party to bargain in any particular manner. So much is clear, but it is respectfully straining his Honour's observations to suggest that this latitude extends to failing to invite a known bargaining representative to any meeting at all in circumstances where bargaining with 32 other representatives was proceeding rapidly towards a proposed vote. It is sufficient to repeat his Honour's observations at [35] about a party staying "mute" to dispose of the employer's submission:

"The putting of a proposal or a counter-proposal, or the suggestion of terms for the purpose of "bargaining" or advancing the "bargaining" process, does not irrevocably commit Endeavour Coal to ultimately agree to the proposal or to those terms and limit the "bargaining" solely to matters which have not yet been agreed upon. To impose such a constraint upon the bargaining process would be contrary to s 228(2). But, in the course of "bargaining", if Endeavour Coal sits "mute" and merely reject proposals or terms which are being advanced for its consideration, it may fail to meet the "requirements" set forth in s 228(1). A party who participates in bargaining that is subject to the requirements of s 228(1) must genuinely participate in the bargaining process; it cannot adopt the role of a disinterested suitor, only rejecting offers and proposals made by other "bargaining representatives"."

Is it reasonable to make good faith bargaining orders?

• [55] Notwithstanding my conclusions above, I am not satisfied that it is reasonable in all the circumstances to make any of the orders sought by the SDA: s 230(1)(c).

• [56] In the present case, the vote has been concluded and bargaining has stopped. There is presently a different application before the Commission by Sephora seeking approval of the new enterprise agreement.

• [57] The SDA contends that the power to make good faith bargaining orders extends beyond the time an agreement was made. So much might be accepted. As the SDA observes, a bargaining order can take effect up to the time an enterprise agreement has been "approved": s 232(b)(ii).

• [58] The orders sought by the SDA have been set out above. At the risk of some oversimplification, the SDA presents differing bases for its position, some of which are relevant to the period before a decision is made by the Commission to approve or dismiss Sephora's application for approval of the enterprise agreement, and others are relevant to a period after. The orders sought in the SDA's Form F1 apply to the period 'before' the enterprise agreement approval process is concluded; the SDA's orders sought in its Form F32 apply to the period after (and now proceed on an assumption that the application for approval of the enterprise agreement will be dismissed).

• [59] Dealing with the period of time to occur before the Commission makes a decision to approve or not approve the enterprise agreement, the SDA's Form F1 seeks orders requiring the employer to take various steps to notify all employees about matters that are relevant to the Commission's decision for enterprise agreement approvals under s 186 of the Act, as well as telling those employees that Sephora did not meet the good faith bargaining requirements. For example, the SDA seeks an order requiring all employees to be told that they are entitled to be heard in such applications and that the Commission is required to assess whether there was genuine agreement or not.

• [60] I do not consider it appropriate to make any orders of that nature. First, they are matters within the ordinary remit of the member of the Commission to whom an application for the approval of an enterprise agreement is allocated. Second, those matters only have a tenuous concern about bargaining. In relation to the latter point, the SDA points out that bargaining orders are capable of addressing the "effects" of capricious or unfair conduct by bargaining representatives. In connection with this, the SDA effectively invites me to make an assessment about whether the enterprise agreement will be approved or not.

• [61] I do not accept that any of these matters make it appropriate to convert a bargaining order application into what effectively amounts to an application in the proceeding before me to obtain evidence for a different application (i.e. the application under s 185 for approval of the enterprise agreement). There is nothing stopping the SDA from inviting its own members to make submissions about the application for approval of the enterprise agreement without the need for any order.

• [62] As to the orders sought in the SDA's Form F32, these orders (which are directed at various bargaining steps such as meetings) can only be relevant if the enterprise agreement is not approved, because there is presently no bargaining occurring and there will be no further bargaining at all if Sephora's application under s 185 is successful. The SDA invites me to make an assessment as to whether the agreement-approval application will fail, either the 'genuine agreement' or 'BOOT' requirements under s 186. It is not reasonable to make such orders. Even if I accepted in full the SDA's contentions that the enterprise agreement will not be approved, that is still a largely hypothetical outcome. I also consider that the finding made by me that Sephora did not meet the good faith bargaining requirements will be a deterrent to it engaging in similar conduct, especially where the SDA is now clearly on notice.

• [63] While it is not strictly necessary for me to deal with given my earlier conclusions, there is also a question of proportionality, which relates to the number of employees for whom the SDA is a bargaining representative. Mr Amin's affidavit discloses that the SDA has 15 members of the respondent, although that number might have been smaller (but at least one or more) at the time of the SDA's request to commence bargaining. While I am prepared to grant some latitude to the likelihood that the SDA would have recruited new members during bargaining, it is disproportionate to make orders directed at all 616 employees who voted, the vast majority of whom did not have the SDA as its representative.

• [64] Finally, one of the orders sought in each of the Form F32 and Form F1 amounted to what was, in effect, a declaration. I do not consider any order in that form sought reasonable. These reasons constitute a sufficient basis for recording my opprobrium. The SDA will no doubt be free to refer their members or prospective members to them as they see fit.

• [65] Before any bargaining order is to be made, I must be satisfied of each of the matters in s 230(1) of the Act. As I am not satisfied that the requirements of s 230(1)(c) are met, the application (as amended) must be dismissed. An Order[2] to that effect will be issued concurrently with these reasons.

P. Dean of Counsel for the Shop, Distributive and Allied Employees Association

P. Brown of Baker and McKenzie for Sephora Australia Pty Ltd

[1] [2015] FWCA 490.

[2] PR774794

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