FWA 5779
Fair Work Act 2009
s.229 - Application for a bargaining order
Australian Rail, Tram and Bus Industry Union
Australian Rail Track Corporation (ARTC)
SYDNEY, 10 JULY 2012
Application by the Australian Rail, Tram and Bus Industry Union for a bargaining order.
 On 4 July 2012 the Australian Rail, Tram and Bus Industry Union (ARTBIU) made an application for a bargaining order. The application was made pursuant to section 229 of the Fair Work Act 2009 (the Act). The application identified the respondent as Australian Rail Track Corporation (ARTC).
 The application in this matter is explicitly connected with an application for a scope order made on 22 June 2012 by the ARTBIU (B2012/911). The scope order application was the subject of initial proceedings before Fair Work Australia (FWA) on 4 July 2012, at which time Directions were made to facilitate the Hearing of that application which has been scheduled for 11 July 2012.
 This matter was listed for Hearing before FWA on 9 July 2012, at which time the following appearances were recorded:
Mr T Costa with Mr B Edghill appeared for the ARTBIU;
Mr S Jauncey with Mr S Joseph solicitors from Henry Davis York appeared for ARTC.
 The Hearing on 9 July did not provide for completion of evidence and the matter has required further Hearing on 10 July. During the Hearing the ARTBIU called 4 witnesses all of whom gave evidence in support of the application. In addition the ARTBIU successfully introduced two uncontested witness statements as further evidence. Mr Jauncey on behalf of ARTC, adduced evidence from 2 witnesses in opposition to the application.
 The ARTBIU has sought bargaining orders to require ARTC to refrain from further conduct in respect to a ballot of its employees seeking approval of an enterprise agreement (the EA ballot).
 ARTC opposed the application, and in broad terms, submitted that the EA ballot should be allowed to proceed and that FWA should not make the bargaining order sought by the ARTBIU.
 The making of bargaining orders is governed by the provisions of Subdivision A of Division 8 of Part 2-4 of the Act (ss. 228 - 233).
 Section 230 of the Act is entitled; When FWA May Make a Bargaining Order and is in the following terms:
(1) FWA 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) FWA is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2) FWA must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b) a majority support determination in relation to the agreement is in operation;
(c) a scope order in relation to the agreement is in operation;
(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3) FWA must in all cases be satisfied:
(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
(b) 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.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”
 One important prerequisite to the making of a bargaining order involves a finding that a bargaining representative has not met, or is not meeting the good faith bargaining requirements (subsection 230 (3)(a)(i)). Section 228 of the Act sets out the good faith bargaining requirements and reads as follows:
(1) The following are the good 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.
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”
 There has been no suggestion that multiple bargaining representatives have impeded or adversely impacted the bargaining process which in this instance commenced on about 1 March 2012 and continued until 21 June 2012. Therefore for the ARTBIU application to succeed it has needed to establish that a bargaining representative has not met, or is not meeting the good faith bargaining requirements. The alleged failure to meet the good faith bargaining requirements relates to the conduct of ARTC in commencing and continuing the EA ballot whilst an application for a scope order (B2012/911) has been made and has not been finalised.
 In this instance the nature of the bargaining order sought seeks to restrain ARTC from taking any further steps in relation to the conduct of the EA ballot in circumstances where an application for a scope order in relation to the proposed enterprise agreement has been made and has been scheduled for Hearing on 11 July 2012, the same day that the EA ballot closes.
 In practical terms any declaration of a successful vote in the EA ballot would defeat the application for a scope order and render the Hearing of that application as a futility because it appears that a scope order can only be made in respect of a proposed enterprise agreement (s.238). In these circumstances the application for a bargaining order can be properly considered as being akin to an application for interlocutory relief aimed to permit the full consideration and determination of the scope order application. Of course if the EA ballot was not successful the scope order application would not be impacted.
 The first issue to be determined is whether the conduct of ARTC in commencing and continuing the EA ballot can be held to be a breach of the good faith bargaining requirements. In simple terms, if there is no contravention by ARTC of the good faith bargaining requirements there is no legislative power to make a bargaining order.
 The bargaining process had involved about 7 meetings and ARTC provided draft number 2 of the proposed enterprise agreement to a meeting held on 21 June 2012. During this meeting an impasse was reached and ARTC advised the other bargaining representatives that it would commence the EA Ballot process. There was conflicting evidence as to whether the ARTBIU representatives present at the meeting told ARTC that it would be making an application to FWA for a scope order.
 ARTC’s decision to terminate bargaining and put the proposed enterprise agreement document to a vote for approval was taken after the impasse was reached during a meeting of bargaining representatives held on 21 June 2012. This impasse was primarily connected with issues surrounding provisions of the proposed enterprise agreement that would be applicable to a particular classification of employees called Network Controllers. Network Controllers represent a minority of the ARTC employees to be covered by the proposed enterprise agreement.
 The issue of the scope of the proposed enterprise agreement has been a matter of considerable conjecture from the outset of the bargaining. In particular, the provisions of the proposed agreement which would apply to Network Controllers occupied a considerable amount of time during the discussions at the various bargaining meetings. Further, the issue of the scope of an enterprise agreement applying in respect of the operations of ARTC in States other than New South Wales has been a matter of considerable and historical industrial disquiet.
 Consequently, issues relating to the terms of any enterprise agreement which would apply to Network Controllers including whether or not such terms should be established by way of a separate enterprise agreement, have been central to the enterprise bargaining process in this instance. Although ARTC may have genuinely believed that the ARTBIU had abandoned any further pursuit of separate enterprise agreement coverage for Network Controllers, its decision to initiate the EA ballot in terms of the document that did not meet the expectations of the Network Controllers spurred the ARTBIU into action. The application for a scope order was made on the day following ARTC’s decision to terminate the bargaining and put the proposed agreement to a vote.
 Importantly, the evidence has not revealed any particular time pressure or other urgency that may be connected with the EA ballot. Indeed, wage increases contained in the proposed enterprise agreement do not commence until 2013. An increase in an on-call allowance and expansion of a 19 day month were the only identified improvements that were linked to the time at which the employees voted to approve of the agreement.
 It would seem that in the absence of any identified urgency or other compelling basis for the EA ballot to proceed within the time frame proposed, ARTC’s action to proceed with the EA ballot would, at least potentially, deny the scope issue to be determined and force the Network Controllers to accept the terms of the agreement as a dissatisfied minority subjected to the “tyranny of the majority” as it was described by Lawler VP in Stadium Australia Operations Pty Ltd T/A ANZ Stadium 1.
 It must also be recognised that if the scope application was unsuccessful the Network Controllers may still have to accept any majority determined outcome. It is not at all unusual for there to be a minority group of dissatisfied individuals who voted against approval of an enterprise agreement.
 However, in circumstances where there has been a clearly articulated agitation of the issue of the scope of the proposed enterprise agreement to the extent that an application for a scope order has been made before the commencement of the vote to approve of the agreement, it would seem to be fundamentally unfair to adopt a course of action which would potentially deny the Network Controllers an opportunity to have their concerns properly heard and determined.
 In these circumstances the fairly rapid processing of the EA ballot can be properly construed to represent a breach of the good faith bargaining requirements of the Act. In particular the actions of ARTC to persist with the conduct of the EA ballot after it became aware of the scope order application, represents capricious and unfair conduct that undermines freedom of association and collective bargaining. Consequently the provisions of subsection 228 (1)(e) of the Act have been satisfied and a bargaining order can therefore be made.
 In addition, in this instance the bargaining order sought is confined to refraining ARTC from further conduct of the EA ballot for a confined period of time and as such represents interlocutory relief. The evidence has established that the balance of convenience would overwhelmingly lie in support of the making of a bargaining order and therefore in all the circumstances it would be reasonable to make the order sought.
 In summary, the application for bargaining Orders has been made in accordance with section 229 of the Act. In particular the timing of the application has satisfied the provisions of subsection 229 (3) of the Act.
 Further, the prerequisites for making an application as specified by subsections 229 (4) (a)(b) and (c) of the Act, have been met or, in the alternative, I am satisfied that any non-compliance with notice requirements should be permitted pursuant to subsection 229 (5) of the Act.
 In respect to subsection 229 (4)(d) of the Act, the requirement that the ARTBIU considers that ARTC has not responded appropriately to its concerns can, for present purposes, be confined to the confirmation provided by ARTC that it would not give an undertaking to not seek approval of an enterprise agreement if the ARTBIU scope application was successful as was tentatively indicated on 4 July by ARTC during proceedings held in the scope application matter, being B2012/911 (seePN201).
 I have considered the submissions and evidence provided by the Parties and I am satisfied that the requirements of s. 230 of the Act have been met. In particular I am satisfied that it is reasonable in all the circumstances to make bargaining orders. The orders are issued separately [PR526052] and operate in accordance with section 232 of the Act.
Mr T Costa with Mr B Edghill appeared for the ARTBIU;
Mr S Jauncey with Mr S Joseph, solicitors from Henry Davis York, appeared for ARTC.
July, 9 & 10.
1 Stadium Australia Operations Pty Ltd T/A ANZ Stadium  FWAA 3758.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR526051>