s.229 - Bargaining order

Application for bargaining orders in relation to a proposed agreement with Baxter Health Care Pty Ltd - orders made

• [1] Since about March 2024, the United Workers' Union (UWU) has been interested in bargaining with Baxter Health Care Pty Ltd (Baxter) for the first enterprise agreement to cover operational, non-managerial employees in Baxter's pharmaceutical facility at 115 Stanley Streat East, Coorparoo, Queensland. To this end, on 26 August 2025, the UWU wrote to Baxter to say that it had obtained a petition of a majority of employees in support of bargaining for an enterprise agreement and wanted to get bargaining underway. On 2 September 2025, Baxter responded, asking for more information including about who wanted to bargain, and about the petition. On 8 September 2025, the UWU responded seeking 'confirmation on bargaining'.

• [2] On 15 September 2025, the UWU applied to the Commission for a majority support determination. On 26 September 2025, Baxter advised the Commission and the UWU that it agreed to bargain for an enterprise agreement. The UWU withdrew its application and on 9 October 2025, Baxter issued employees with a notice of employee representational rights. The notice complied with the requirements of the Act.

• [3] On 24 October 2025, the UWU applied to the Commission for good faith bargaining orders after Baxter declined to provide it with certain information about employee classifications and pay rates to assist in its preparation of a log of claims. Baxter then initiated a vote of employees about whether to continue with bargaining based on feedback received from employees. Once the results were known, it withdrew from bargaining. I granted leave to the UWU to amend its application to address the voting process initiated by Baxter. The current state of play is that there is a notification time in relation to the proposed agreement, but no proposals have yet been exchanged, and no bargaining has taken place.

• [4] The question is whether Baxter has met the good faith bargaining requirements in section 228 of the Fair Work Act 2009 (Cth) (Act), and if not, whether orders should be made requiring Baxter to:
  1. furnish it with certain information, and/or
  2. 'resume' bargaining or otherwise cease acting as if it were able to unilaterally withdraw from bargaining for a proposed agreement.

Are the conditions for making a bargaining order met?

• [5] The application for bargaining orders is made in circumstances where no enterprise agreement applies to affected employees and the UWU is a bargaining representative for the proposed agreement. I am satisfied that the UWU has concerns that Baxter has not met, and is not meeting, the good faith bargaining requirements because of what it describes as:

1. a repeated refusal to give the UWU the information it requested (information about Baxter's current classification and pay structure, including all classification roles, current base rates, corresponding modern award classifications, and differential amounts between base rates and modern award rates based on dollar and percentage), and
2. failing to notify the UWU of a proposed vote of employees on 'additional benefits' on the basis that bargaining will not commence.

• [6] The UWU gave written notice of the first of these concerns to Baxter on 23 October 2025 (the First Notice) and of the second of the concerns, on 13 November 2025 (the Second Notice). The First Notice gave Baxter approximately 4 hours to respond, failing which the UWU would apply to the Commission for good faith bargaining orders. The UWU then applied to the Commission approximately 23 hours after the First Notice was sent to Baxter. The Second Notice gave Baxter less than 2 hours to respond. 5 minutes after the deadline expired, the UWU notified the Commission of its further concern about whether Baxter was meeting the good faith bargaining requirements.

• [7] To the extent that the application to the Commission sought orders for the production of information about a 'pay range from base to maximum rates', this information had not been the subject of a written notice of concern as required by s.229(4)(b) of the Act. There was no request for this information made by the UWU to Baxter before the application to the Commission was made. What the UWU sought was classification matching with the Pharmaceutical Industry Award 2020, the relevant modern award rate, the comparable Baxter 'base rate', information about applicable award allowances and comparable allowances at Baxter, and an (optional) calculation of the difference in these amounts (in dollar and percentage terms) as between the modern award and what was provided by Baxter. The UWU sought information about the current 'base' rates of pay but had clarified that it was not seeking individual rates of pay. There was no basis for Baxter to understand that the request for information extended to the range of rates of pay for each classification (from base to maximum rates).

• [8] Further, I am not satisfied that Baxter was given a reasonable time within which to respond to the concerns identified in the First Notice (s.229(4)(c)). The timeframe given for response was very short in the context of a request for information before any bargaining had taken place. Although the issues raised had previously been the subject of correspondence between the parties, the First Notice was in the nature of a formal legal demand. It particularised, by reference to relevant provisions of the Act, the reasons it said Baxter had failed to comply with the good faith requirements. It sought undertakings about what Baxter would do within the following 4 days. It was reasonable to expect that Baxter might need to obtain legal advice on the letter before responding. In the circumstances, allowing only a 4‑hour window for Baxter to give the substantive commitments that were sought was unreasonable.

• [9] It is clear that the UWU considered Baxter not to have responded appropriately to its concerns about the non-disclosure of pay rates before it applied to the Commission (s.229(4)(d)).

• [10] For the reasons above, I find that the First Notice did not comply with s.229(4)(b) (in relation to maximum rates of pay) and s.229(4)(c) of the Act (at all). The UWU was not strictly entitled to apply to the Commission for bargaining orders in relation to the First Notice. In the circumstances, however, I consider it appropriate to consider the application in relation to the First Notice despite this non-compliance because the dispute about disclosure of pay rates has become a barrier to the commencement of bargaining. Given the position adopted by the UWU, resolving the dispute is necessary for any progress in bargaining to be made.

• [11] Baxter had a reasonable opportunity to respond to the concerns raised by the UWU in the Second Notice. Although the time period was even shorter than for the First Notice, it was issued in circumstances where the UWU had just become aware that Baxter had initiated a vote among employees about whether to continue bargaining at all. The voting process had commenced earlier that day, on 13 November 2025 and was stated to close on 17 November 2025. It was reasonable in the circumstances for a short period of notice to be given to Baxter in connection with the UWU's urgent request for the voting process to cease.

• [12] It is clear that the UWU believed that Baxter had not responded appropriately to the concerns set out in the Second Notice. The Second Notice was sent to Baxter at 1.19pm on 13 November 2025. It sought confirmation that Baxter would cease the vote by 3.00pm that day. No such confirmation was provided. Instead, at 2.56pm on 13 November 2025, Baxter wrote to all bargaining representatives for the proposed agreement, including the UWU, to notify them about the voting process and the reason for it. Acting on this information 9 minutes later, the UWU notified the Commission of its concern in relation to the voting process.

• [13] The conditions for making an application for bargaining orders in the terms sought by the UWU is made out.

Has Baxter met, or is it meeting, the good faith bargaining requirements?

• [14] The good faith bargaining requirements are found in section 228 of the Act. They require bargaining representatives to: attend and participate in meetings at reasonable times; disclose relevant information in a timely manner; respond to proposals made by other bargaining representatives in a timely manner; give genuine consideration to proposals made by other bargaining representatives and give reasons for responses to those proposals; refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining; and recognise and bargain with the other bargaining representatives. In this case, the relevant requirements are found in s.228(1)(b), s.228(1)(e) and s.228(1)(f).

Disclosing relevant information in a timely manner - s.228(1)(b)

• [15] The good faith bargaining requirements apply to the process of, and conduct during, bargaining for a proposed agreement. The UWU does not seek the disclosure of information 'in the negotiations'[1] between it and Baxter. No negotiation has yet taken place. The information sought is for the purpose of assisting the UWU to prepare a log of claims.

• [16] I accept that access to the information would be valuable to the UWU and also that much of Baxter's pay rate information is considered by Baxter to be confidential. I do not accept that the UWU is unable to prepare a log of claims, or to commence bargaining, without the information it seeks.

• [17] The UWU has been given the starting rate of pay at Baxter. It has been told that rates of pay at Baxter are 'all-inclusive' rates, and that Baxter is prepared to match its competitor's rates for at least 3 classifications. Baxter has indicated that it will provide further disclosure of information in bargaining, including in relation to classifications, shift times, proposed base rates, and corresponding award classifications. Some of this information has now been disclosed in connection with this application.

• [18] The UWU has information, or access to information, about the pay and conditions of its members from those members directly. It knows what the rates of pay for Baxter's main competitor are, because it recently finalised an enterprise agreement with that business. It goes without saying that the UWU will be guided by its members in terms of the claims that might be made on their behalf. But it is important to remember that claims are just that. They can be refined as bargaining progresses. They do not need to be perfect from the outset and can be expressed in a range of ways that will avoid being seen as 'ridiculous' or lacking in value. Ultimately, the UWU is responsible for the preparation of its log of claims, just as Baxter would be responsible for the development of any claims of its own. Bargaining orders are not necessary for this purpose.

• [19] It is also relevant that there is a level of concern, among a relatively large group of the affected employees, about the disclosure of their individual pay rates to the UWU and its delegates, who are their colleagues. These employees consider their pay rate information confidential and as a matter of direct negotiation between them and Baxter. Baxter agrees that its pay rates information is confidential, and that it wants to respect the wishes of its employees. It is also concerned that providing the UWU with employee's individual pay rates could amount to a breach of s.333B of the Act, which deals with pay secrecy. Under s.333B, employees have a workplace right to disclose, or not disclose, information about their remuneration or related terms and conditions of employment to any other person.

• [20] I doubt that the effect of s.333B is to prevent employers from sharing information about current wages and conditions with other bargaining representatives in bargaining for a proposed agreement. The workplace right in s.333B is personal to the employee concerned. It does not extend to employers. Even so, an employer would understandably be cautious about disclosing the individual rates of pay of an employee to one or more third parties in the knowledge that this disclosure was contrary to the express wishes of the employee(s). It is not difficult to imagine how this might give rise to an allegation of adverse action in contravention of the general protections provisions of the Act by the employee(s) concerned.

• [21] It is necessary, in those circumstances, for employers to consider how best to manage what might appear to be competing objectives of the Act: how to bargain in good faith while also respecting the various rights of employees. In this case, the balance is made more challenging by the fact that many of the employees are either on their own, or are one of two, in a particular classification. De-identified disclosure of pay rates for their classification will necessarily identify the person(s) to whom the pay rate applies.

• [22] I accept that access to information about relevant wages and conditions that apply in the workplace is likely to assist in bargaining. It may well become appropriate for there to be greater transparency in relation to pay rates as the negotiations progress. How to achieve the necessary balance while promoting a useful dialogue on any wages outcome is a matter that lends itself to discussion in bargaining. For example, the parties might work together on a process by which only some of the information sought is shared. Agreed principles could be developed on the nature of the information to be shared, and with who, and how it will be managed. In the meantime, Baxter has produced a list of classifications in the workplace and has previously said that it would provide proposed pay rates in bargaining. This information, together with some more general information about how employees are paid, should suffice at least for negotiations to start.

• [23] Overall, I accept that the individual pay rates of employees are confidential information and I do not consider it reasonable or appropriate to require the provision of this information to the UWU, even with the proffered undertakings, at this early stage of the process in circumstances where concerns raised by employees about the sharing of their personal information have not been overcome. Further, and for the reasons above, I am not persuaded that provision of all of the information sought by the UWU, either in substance or form, is necessary for bargaining to get underway. In the circumstances, I am not satisfied that Baxter has failed to disclose relevant information to the UWU about the proposed agreement in a timely manner in breach of the good faith bargaining requirements.

Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining - s.228(1)(e)

• [24] Although the UWU did not specifically allege that the voting process initiated by Baxter was inconsistent with s.229(1)(e), this was the effect of some of its submissions. Having reviewed the materials and heard from the parties, I consider this aspect of the good faith bargaining requirements to be an important factor in resolution of the dispute.

• [25] The conduct of Baxter in proceeding to a vote on whether to bargain at all, without discussing this first with bargaining representatives and accompanied by an offer of separate 'additional benefits', as well as its subsequent decision to not continue with bargaining for a proposed agreement, is in my view, unfair conduct that undermines collective bargaining. It is a process designed to avoid the consequences of having agreed to bargain for the purposes of the Act that is inconsistent with the statutory scheme.

• [26] Baxter's explanation for this conduct is that it is seeking to give effect to the wishes of a majority of employees. I accept that some of the affected employees do not want to be involved in bargaining, and that some have become increasingly unhappy about the conduct of the UWU. These concerns should be taken seriously by the UWU in the manner in which it approaches bargaining in the future. However, I do not accept, on the evidence, that a majority of employees do not want to bargain for an enterprise agreement. There are approximately 95 employees who will be covered by the proposed enterprise agreement. Of the 58 employees who participated in a vote about whether to bargain at all, 37 voted against bargaining, while 21 voted in favour of it. That leaves the wishes of approximately another 37 employees unknown. The voting results must also be received with caution because the vote was not just about whether to bargain for an enterprise agreement. It was a choice between an offer of 'additional benefits' (and no bargain) or bargaining instead of these 'additional benefits'. The explanation given to employees for the vote did not acknowledge the potential for additional benefits to be achieved if bargaining were to proceed.

• [27] In effect, Baxter has sought to induce employees to vote against proceeding with collective bargaining. It has done so without first consulting with the other bargaining representatives and in circumstances where the information provided to employees lacked balance. That information failed to explain that because Baxter has agreed to bargain, the statutory scheme requires it to bargain in good faith with all of the bargaining representatives for the agreement.

• [28] Contrary to its submissions, Baxter cannot simply withdraw from bargaining because it wants to, or because it wishes to give effect to the views of some of its employees. Having agreed to bargain in the face of apparent majority support for such a process, Baxter has an obligation to work with the bargaining representatives toward the making of an enterprise agreement. The authorities relied on by Baxter do not assist it in this regard. Those authorities are relied on in connection with the specific scenario of procedural defects that, at the time, rendered enterprise agreement approval an impossibility. The legislative scheme has since been modified to allow such procedural defects to be overcome in appropriate cases.

• [29] Separately, and at least since the introduction of majority support determinations, the scheme of the Act is that employers can be compelled to bargain with employees, and once there is a notification time in relation to the proposed agreement, they are required to bargain in good faith for the agreement until the bargaining process ends either by agreement, or by order of the Commission. Although employers cannot be required to make concessions in bargaining, an impasse in the negotiations might eventually lead to the Commission determining the terms and conditions that will apply in the workplace, at least for a time.

• [30] For these reasons, I find that Baxter has failed to meet the requirements of s.228(1)(e).

Recognising and bargaining with other bargaining representatives - s.228(1)(f)

• [31] I am not satisfied that Baxter has failed to recognise any of the relevant bargaining representatives. The failure to notify bargaining representatives about the voting process was common to all bargaining representatives other than Baxter. It does not mean that Baxter had, or has, failed to recognise the UWU as a bargaining representative in relation to the proposed agreement.

• [32] A separate issue arose earlier between the parties about leaving two UWU delegates off an email communication from Baxter. I note the same omission was present in an email from the UWU. The UWU (rather than its delegates) is the official bargaining representative for its members, and was included in the correspondence in question. The parties have since agreed on a distribution list for correspondence about bargaining.

• [33] In the circumstances, I am not satisfied that there has been a relevant contravention of s.228(1)(f).

Is it reasonable in all the circumstances to make the order?

• [34] The power to make bargaining orders is confined to directing things to be done to ensure compliance by one or more of the bargaining representatives with the good faith bargaining requirements.[2] For the reasons set out above, I find that Baxter has not met the good faith bargaining requirements in acting as if it can unilaterally withdraw from bargaining. It is reasonable in all the circumstances to make a bargaining order. The order will issue separately to this Decision.

Mr T McDonald of McCabes Lawyers for the Respondent.

[1] Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries' Staff Division) [2012] FWAFB 1891 at [35]

[2] Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 at [62]

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