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[2024] FWC 3222
General information, not legal advice.
Fair Work Commission
2024-11-25
Original judgment source is linked above.
s.229 - Bargaining order
Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia)
Application for bargaining order - Application for interim orders - Interim orders not granted - Application for interim orders dismissed
[1] On 20 November 2024, the Transport Workers' Union of Australia (the TWU) made an application for bargaining orders and a related application for interim orders under s.589 of the Act. The matter concerns a proposed ballot of employees of Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services (Australia) (Veolia) in relation to a new enterprise agreement.
[2] The interim orders sought from the TWU in their Form F1 are as follows:
1. Until the hearing and determination of the accompanying application for bargaining orders, or further order, the Respondent take no further steps under ss 180 and 181 of the Fair Work Act 2009 (Cth) (FW Act), or otherwise, to submit the proposed Veolia Brisbane & Gold Coast (Collection Services) Enterprise Agreement 2024 (proposed agreement) to employees proposed to be covered by it for approval.
2. Such further or other orders as the FWC considers appropriate.
[6] On 18 November 2024, the TWU sent Veolia a letter of concerns, arguing that Veolia was not meeting its good faith bargaining obligations under s.228(b) and (e) of the Act.[1]
[7] Approximately two years ago, Veolia acquired the business of Suez. A key objective of Veolia in these negotiations was to develop one agreement where previously there had been three and to harmonise the pay and conditions across the workgroups. Former Suez employees will now be covered under the proposed Veolia Brisbane & Gold Coast (Collection Services) Enterprise Agreement 2024 (the proposed Agreement). Under the proposed Agreement, the former Suez employees will receive increases, however at a lesser rate than employees under older Veolia agreements - this is to assist in the achieving of parity in conditions and pay for the whole workforce. The former Suez employees are approximately one-third of the cohort of employees to be covered by the proposed Agreement.
[8] The Respondent does not contest that the former Suez employees are treated differently to other employees under the proposed Agreement. Under the Suez Brisbane and Gold Coast C&I Agreement 2020 (the Suez Agreement), the former Suez employees receive a substantially higher rate of pay than the Veolia employees who are performing the same duties. Veolia has indicated that it intends to achieve pay parity between its workers and as such, the former Suez employees will receive lower pay increases than the other Veolia employees, until pay parity is achieved.
[9] The parties have been bargaining for five months.
[10] On 20 June 2024, the TWU submitted a draft log of claims to Veolia. The log of claims on 20 June 2024 includes:
4. No reductions in existing terms and conditions of employment including any custom and practice, and incorporation of the Waste Management Award 2020. The current agreements form the basis of the new EA document, with the agreement provisions reviewed and proposed changes agreed before alteration and tracked transparency.
13. Wage Industry - with Industry Rates of pay- with the Nudgee (Suez) Agreement rates, with suitable CPI increases applied from 1 July 2024 to compensate employees for significant losses when comparing Brisbane/ Gold Coast CPI increase of 18.5% whilst their Agreement increases totalled approx. 7.5%.[2]
In hindsight the company's request (on the 7th November ) during the negotiations for all company bargaining representatives to remain back (on double time) to work on the draft document, indicated Veolia's true intention was to deceive the TWU and all Bargaining Representatives, as the Vote access period and intention to ballot was announced just 2 Business days after that negotiation on the 12th of November.[12]
The agreement represents Veolia's best offer, which is conditional on all proposed changes to the agreement being accepted.
It is our view that our employees should now be given an opportunity to vote for our offer.
Subject to any final feedback on the drafting, the following will be the voting timeline:
Please provide your views by 5.00 pm, 14 November 2024. If I do not hear from you, then I will proceed to commence the access period for the agreement.[13]
24. In light of the facts set out above, there is at least an arguable case that:
(a) The respondent has not disclosed relevant information about its intention to put the
(b) The respondent has not disclosed relevant information that it had reached a final
position, and the nature of that position, in a timely manner.
(c) The respondent, knowing of the applicant's critical concerns about the disadvantaged industrial position of the new Veolia employees, and the applicant's desire to alter the scope of the proposed agreement to exclude those employees, has acted unfairly, and contrary to the objectives of the FW Act by rushing to put the proposed agreement to ballot.
(d) The respondent, knowing of the matters in (c) above, has acted unfairly by attempting to thwart the applicant's statutory right to make, and have determined,
(e) The unfair conduct engaged in by the respondent has the effect of undermining
(f) In the circumstances, the respondent has not met the good faith bargaining
25. There is a serious issue to be tried as to those matters. Misleading conduct during
bargaining is prima facie unfair within the meaning of s 230 of the FW Act[18]
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC's power to make decisions.
[17] Section 589(2) states that the Commission 'may make an interim decision in relation to a matter before it.' It is not an independent source of power to issue interim orders, whether in the nature of interlocutory administrative injunctions or any other temporary decision. Absent a particular 'matter before it', the Commission has no power to do anything at all under s 589(2). To the extent that it might be contended that s 589(2) can be used in respect of any 'dispute' that might be referred to the Commission, s 595 makes clear that the Commission may deal with a dispute 'only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.' Section 589(2) is not such a provision.
[24] Moreover, the Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires.
Section 589 is in subdivision B of Division 3 of Part 5-1 of the FW Act which deals with the conduct of matters before the Commission. These provisions are procedural in nature in the sense that they facilitate the effective and efficient exercise of the Commission's substantive powers. They are not remedial or beneficial provisions in the sense contended by the Appellant.[21]
[18] The 'matter' now before the Commission, for the purpose of s 589(2), is an application made under s789FC. That application alleges that a worker has been bullied at work. It seeks an order under s 789FF to prevent a worker from being bullied by an individual or group. Any order I make in relation to this application will be an order under s 789FF. The relevant requirements of that section must be satisfied.
[19] Section 789FF confers jurisdiction on the Commission to make an anti-bullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need to make factual findings about what has occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of 'bullied at work' in s 789FD(1). This would require the Commission to reach a conclusion as to whether the impugned conduct was repeated and also unreasonable, that the conduct was towards a worker, and that it created a risk to health and safety.
[46] The general approach reflected in the FW Act is to use express language to confer a function or authorise the exercise of a power. The FW Act is replete with proscriptive limitations on the Commission's jurisdiction and upon the powers it may exercise. Sections 789FF and 595 serve to illustrate this point. These structural features, and the terms of s.789FF, tells against the construction advanced by the Appellant. The express terms of s.789FF operate to delineate the circumstances in which interim relief may be granted.
[47] It is also relevant to consider the consequences that might flow from the Appellant's submission if we were to adopt it. Interpretation by reference to the consequences of adopting a particular construction is an incident of the purposive approach to interpretation.
[48] The Appellant submitted that if its construction of s.589(2) is not accepted, the result is that the Commission has no effective capacity to grant interim relief in respect of anti-bullying matters in order to preserve the subject matter of the application before it, with the result that the purpose of Part 6-4B may readily be defeated (for example, by dismissing an employee) before the final hearing. We do not agree. The Appellant's submission proceeds on the apparent assumption that, at an interlocutory hearing in which an applicant for an anti-bullying order seeks an interim decision pursuant to s.589(2), it would not be possible for the Commission to reach the requisite state of satisfaction concerning the matters specified in s.789FF(1)(b)(i) and (ii). That assumption is not valid. What provisions of this nature require is 'an opinion or satisfaction formed reasonably upon the material before the decision-maker'. We can see no reason why, for the purpose of an interlocutory hearing, it would be impossible for an applicant to put before the Commission sufficient material for the Commission to reach the requisite state of satisfaction under s.789FF(1)(b)(i) and (ii) at that time. In this case in particular, it seems to us that the primary facts of the Appellant's case that the conduct of the disciplinary process to date has been unreasonable can for the most part be established on the basis of the written communications passing between the parties, with the question of whether the Commission may be satisfied as to the 789FF(1)(b)(i) and (ii) matters turning on the proper inferences to be drawn from those primary facts. Once the requisite state of satisfaction has been reached, the Commission has a wide discretion under s.789FF(1) as to the making of appropriate interim orders to remain in place pending the final hearing and determination of the application.
The approach to a serious issue to be tried for the purpose of interim relief does not require the HSU to show that it is more probable than not that its substantive application would succeed; it is to show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the determination of its substantive application.[23]
[5] The principles governing the making of interim orders are well established. For interim orders to be granted, the applicant bears the onus of satisfying the Commission that a serious issue with a reasonably arguable case is to be determined; that it may suffer prejudice that cannot be adequately remedied if the interim order is not granted; and that the balance of convenience favours the orders sought. The required assessment by the Commission will necessarily be of a preliminary nature only.
[82] The parties disagree on the approach required in considering whether to make interim orders. The UWU contends that the Commission must be satisfied that there is a serious issue to be tried and that the balance of convenience favours the making of the interim orders. It relies on the Full Bench decision in Health Services Union v Victorian Hospitals' Industrial Association. Quantem, relying on the Full Bench decision in Wills v Marley & Others, contends that the Commission is only empowered to make an interim bargaining order if it reaches a state of satisfaction regarding the requirements of s.230 of the Fair Work Act 2009(Cth) (the Act), particularly s.230(1)(c), s.230(2) and s.230(3).
[86] As described by the Full Bench in Wills v Marley, the requisite standard is 'an opinion or satisfaction formed reasonably upon the material before the decision-maker'.
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 142at [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 s230(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.[24]
(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
(c) 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.
[9] Firstly, I am not satisfied that the particular interim orders sought are within power in circumstances where the Commission has before it applications under s 229 for bargaining orders under s 230. These provisions of the FW Act do not expressly provide for interim relief. Powers to make interim orders under s 589 of the FW Act are not at large. As noted by a full bench in Wills v Grant and the Government of New South Wales the power to make interim orders under s 589 is not an independent source of power to injunct conduct. Whilst there is arguably a link between the commissioning by Utilities Management of the ballot and its good faith bargaining obligations, I am not satisfied that the conduct of ballots are "matters" before the Commission under s 229 such that the power in s 589 can be invoked. Section 229 applications deal with conduct in bargaining. It is the alleged breach of good faith bargaining obligations which are the "matters" before the Commission.
Consideration of whether Good Faith Bargaining Obligations have not been met
"In CFMEU v Anglo Coal (Capcoal Management) Pty Ltd T/A Capcoal I endeavoured to set out some principles with respect to the application of the legislative provisions in relation to whether bargaining representatives have met good faith bargaining requirements in s 228(1)(e) of the Act, which can be summarised as follows:
a) That the bargaining representative has not refrained from conduct which is capricious or unfair or that the bargaining representative has engaged in conduct that is capricious or unfair; and
b) That conduct undermines freedom of association, or collective bargaining or both.
"[16] That is not to say that issues about the timing or conduct of a vote may not impinge upon the bargaining process. If, for example, an employer seeks to put an agreement to a vote without having participated in any meetings with employee bargaining representatives and/or without having responded to or genuinely considered proposals advanced by employee bargaining representatives, that might ground a finding that the good faith bargaining requirements had not been met and might justify the making of a bargaining order restraining the conduct of the vote until those steps had been taken (see, for example, CEPU v Contact Electrical Pty Ltd). However, in this case the TWU's concern about the timing of the ballot during school holidays was not tangibly connected with the bargaining process, since it would (presumably) equally have arisen even if there was no complaint about the bargaining process at all. For that reason, we do not consider it was relevant to the consideration of whether the good faith bargaining requirements have been met."
"[30] We deal now with the ballot of employees. 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."
[1] Annexure 1A to TWU Form F1 application
[2] Annexure 1 to TWU Form F1 application
[3] Annexure 3 to TWU Form F32 Application.
[4] Annexure 3 to TWU Form F32 Application
[5] Annexure 3 to TWU Form F32 Application
[6] Ethan Callan Witness Statement [10]
[11] Annexure 3 to TWU Form F32 Application
[13] Annexure EC-2 to Ethan Callan Witness Statement
[15] Ethan Callan Witness Statement [19]
[16] Annexure 3 to TWU Form F32 Application
[17] Letter from Richard Olsen to Mark Dowley dated 18 November 2024
[19] Annexure EC-4 to Ethan Callan Witness Statement
[20] Wills v Grant and the Government of New South Wales [2020] FWCFB 4514 at [34]
[22] Health Services Union v Victorian Hospitals' Industrial Association [2012] FWAFB 2901 at [5]
[24] Application by Shop, Distributive and Allied Employees Association (006N) [2024] FWC 1225 at [5]
[25] Wills v Grant and the Government of New South Wales [2020] FWCFB 4514 at [48]
[28] Ethan Callan Witness Statement [10]
[29] Annexure 3 to TWU Form F1 Application
[32] Annexure 1A to TWU Form 1 Application
[34] Respondent Submissions [5], [7].
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Transport Workers' Union of Australia
Veolia Environmental Services