Be nice and work it out my way
This decision deals with good faith bargaining requirements under the Fair Work Act ( the Act), which was on appeal from a decision of Commissioner Roberts of the 12 February 2010 (see [2010] FWA 942). Permission was granted to appeal in the public interest, as the appeal was said to raise matters for consideration concerning important new statutory provisions, which had not been considered at a Full Bench level before [1].
The case below was one in which the CFMEU, on behalf of its members working in this coal mine, had sought a number of bargaining orders. The CFMEU was unsuccessful and on appeal, narrowed the nature of the orders it sought. The making of bargaining orders, comes under Chapter 2, Division 8 of the Act. That division is headed, “FWA’s General Role in Facilitating Bargaining”. This case highlights the role that Fair Work Australia will have, and the circumstances in which that tribunal can be enlisted to assist parties to reach an agreement. In order to make such bargaining orders, it must be found by Fair Work Australia that at least one of the bargaining representatives has not met, or is not meeting the good faith bargaining requirements. (See s 230, sub-section 3(a)(i)). The meaning of “good faith bargaining requirements” are set out in s 228 of the Act.
On appeal, the CFMEU relied upon one sub-section of s 228, being as follows:
“228(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; –“
The Full Bench said of that provision:
“The terms of that provision require not only that conduct undermines freedom of association or collective bargaining but also that the conduct be capricious or unfair. Of course whether conduct is capricious or unfair can only be ascertained by an examination of all the circumstances in a particular case.” [7]
What had invoked the ire of the CFMEU, in what had been long and complex negotiations, attended by a number of industrial stoppages, was the fact that Tahmoor Coal was directly providing to its employees, who were also members of the CFMEU, its offer in writing in the Enterprise Agreement negotiations. It was asserted by the CFMEU that by the employer directly communicating to those employees, it would encourage different views amongst that group of employees, without the bargaining representatives being present (CFMEU). This conduct, it was claimed had the natural effect of weakening or undermining collective bargaining. Further, such conduct would diminish the authority of the employee’s bargaining representative in the collective bargaining process [19]. It was also asserted that the most recent representative of Tahmoor Coal, had conducted the negotiations “at a level of intimidation”, which drew some comment both from the Commissioner at first instance and from the Full Bench. This latter submission in relation to the manner in which the Colliery’s representative had conducted the negotiations, were to make good the argument that the Colliery had acted “capriciously or unfairly”. The Full Bench said,
“The Commissioner accepted that Mr Nicholls (on behalf of the Colliery) adopted a very aggressive approach in the employee meetings and that he “probably crossed the line of what is reasonable in the circumstances”, but he commented that aggressive tactics appear to be the norm in the coal industry. We take this to be a finding that whilst Mr Nicholls’ behaviour might have been unreasonable in most industries, it was not inconsistent with normal behaviour in coal industry negotiations. Aggression is to be deprecated. But given some of the evidence of employer responses to Tahmoor’s proposals, taken with the Commissioner’s familiarity with the industry, the finding was open to him. We do not regard the fact that Mr Nicholls had referred to the possibility of employees being locked out as significant. It appears that this statement was made in the context of response to the taking of protected action by employees.” [31]
I never thought that it could be said that the CFMEU were “shrinking violets”
However, on the key matters raised in the appeal, the Full Bench found against the Appellant. The Full Bench found that Tahmoor Coal had attempted to influence employees views directly, and not through the filter of the Union, however it did not necessarily follow that such conduct undermined freedom of association, or collective bargaining, or that it acted capriciously or unfairly [29] . In relation to the argument regarding the conduct of the ballot of employees, the Full Bench found that there was no absolute requirement for the agreement of bargaining agents to occur, prior to the conduct of a ballot, and this was particularly so when the parties had reached an impasse in the negotiations [30]. Consequently, the decision below, which in effect permitted the ballot on the Enterprise Agreement proposals by the company, was not stopped from taking place.
This case provides more explanation of the detailed technical provisions under the Fair Work Act with this one concerning bargaining for new industrial instruments. It also shows that such negotiations can be extensive, and like this case, can go for many months and comprise up to fifty negotiating meetings, without agreement or the prospect of having the disputed matters arbitrated . Such negotiations are not easy and may lead to agreement by exhaustion.
