DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
AGL Loy Yang Pty Ltd T/A AGL Loy Yang
(B2016/581)

Proposed protected action ballot of employees of AGL Loy Yang Pty Ltd – application not granted.

Introduction

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) is a bargaining representative of a number of employees of AGL Loy Yang Pty Ltd (AGL Loy Yang) who will be covered by a proposed enterprise agreement. It has been bargaining with AGL Loy Yang for an agreement for eight months.

[2] On 26 May 2016, the CFMEU applied to the Fair Work Commission (the Commission) for a protected action ballot order (PABO) under s.437 of the Fair Work Act 2009 (the Act).

[3] The group of employees that are proposed to be balloted are employees of AGL Loy Yang who are members of the CFMEU and for whom the CFMEU is a bargaining representative, and who will be covered by the proposed enterprise agreement (relevant employees).

[4] AGL Loy Yang opposes the grant of a PABO, submitting that the Commission does not have jurisdiction to make the proposed PABO because:

(a) the application and draft PABO do not specify the group or groups of employees to be balloted (s.437(3)(a) and s.443(3)(b) of the Act); and

(b) the Commission ought not be satisfied that the CFMEU has been, and is, ‘genuinely trying to reach an agreement’ as required by s.443(1)(b) of the Act.

[5] Further and in the alternative, if a PABO is to be made, AGL Loy Yang has made an application pursuant to s.443(5) of the Act for the notice period for any protected action to be extended to seven working days.

[6] I have attempted to balance the obligation to have regard to the evidence and submissions that are relevant to the determination I am required to make against the manner in which the regime established under the Act for the conduct of applications for a PABO is intended to operate. I have approached this task in circumstances where the volume of evidence relied on by both parties is substantial and is accompanied by detailed submissions. The extensive nature of the material includes material from the various proceedings that have emanated from the bargaining which I refer to below.

Background

[7] The relevant employees of AGL Loy Yang are currently covered by the Loy Yang Power Enterprise Agreement 2012 which has passed its nominal expiry date of 31 December 2015 (2012 Agreement). The agreement also covers AGL Loy Yang and several unions, including the CFMEU.

[8] The collection of unions representing the employees covered by agreements at Loy Yang appears to have traditionally functioned and been described as the single bargaining unit (SBU). Since its establishment some years ago, the SBU has engaged in the negotiation of a number of previous agreements. Its composition is said to have reflected the traditional coverage each union had at Loy Yang and has comprised:

• Seven CFMEU members;



• Two Australian Services Union (ASU) members;



• Two Professional Australia/APESMA members; and



• Two Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (referred to hereafter as the ETU). 1

[9] During this current bargaining round, there has been disagreement between AGL Loy Yang and the CFMEU as to when meetings of the SBU commenced and more recently, the nature of its composition.

CFMEU declines AGL Loy Yang’s invitation to commence bargaining

[10] AGL Loy Yang commenced engaging with its employees about enterprise bargaining in late April 2015. 2

[11] On 2 July 2015, AGL Loy Yang invited the CFMEU to a meeting to be held on 23 July 2015 for the purpose of commencing enterprise bargaining discussions with the CFMEU and other unions. 3 At that time, the CFMEU declined to commence bargaining with AGL Loy Yang, stating in a reply letter dated 15 July 2015 that it did not want to commence bargaining early.4

[12] The 23 July 2015 meeting proceeded with representatives of AGL Loy Yang and various unions but as foreshadowed, the CFMEU did not attend. 5 AGL Loy Yang regarded this meeting as a meeting of the SBU.

[13] On 28 July 2015, AGL Loy Yang issued to employees a notice of employee representational rights. 6

[14] On 30 July 2015, AGL Loy Yang replied to the CFMEU’s letter of 15 July 2016 stating that it was general and past practice to commence discussions six months prior to the expiry of an existing agreement to allow ample time before the expiry of the agreement to have a replacement agreement in place. It sought the CFMEU’s reasoning for not wanting to commence negotiations. An invitation was also extended to the CFMEU to attend what AGL Loy Yang regards as the second meeting of the SBU on 11 August 2015. 7

[15] The reason the CFMEU did not want to commence bargaining at that time was that its two most senior representatives, Mr Gregory Hardy and Mr Bryan Walsh, were interstate on leave. 8 Mr Hardy and Mr Walsh are respectively the Secretary and President of the Loy Yang A Power Station Lodge of the Victorian District Branch of the Mining and Energy Division of the CFMEU. The CFMEU wrote to AGL Loy Yang on 11 August 2015 indicating this. It also expressed its serious concern at AGL Loy Yang’s bargaining conduct.9

[16] Mr Walsh was not due to return from leave until 11 September 2015 while Mr Hardy was not due to return from leave until 16 October 2015. 10

[17] AGL Loy Yang replied on 13 August 2015 and asserted that negotiations could nonetheless commence with the input of Mr Geoff Dyke, the CFMEU’s District Secretary and invited the CFMEU to provide feedback on its proposal for a new agreement and to attend the next (third) meeting of the SBU scheduled for 25 August 2015. 11

Mr Hardy & Mr Walsh appointed bargaining representatives

[18] On 24 August 2015 there were two developments. Firstly, AGL Loy Yang sent a marked-up agreement outlining its proposed changes to the 2012 Agreement, the changes in tabular format and an explanatory document to officials of the CFMEU, ASU, Professionals Australia and the ETU and delegates of the ASU, Professionals Australia and the ETU. 12 The CFMEU did not attend the SBU meeting held the following day. The marked-up agreement outlining AGL Loy Yang’s proposed changes to the 2012 Agreement was tabled and ‘Part 1’ and ‘Part 7’ of it was discussed.13

[19] Secondly, Mr Hardy sent AGL Loy Yang approximately sixty completed ‘appointment of bargaining representative’ forms from employees nominating either himself or Mr Walsh as bargaining representatives. 14

[20] This latter development prompted AGL Loy Yang to write to Mr Luke Van der Meulen, the Victorian District President of the Mining & Energy Division of the CFMEU. In a letter dated 26 August 2015, copied to Mr Hardy and Mr Walsh, AGL Loy Yang wrote:

“…AGL has recently received a number of instruments of appointment under s176(1) of the Fair Work Act 2009, naming Greg Hardy (Secretary, Loy Yang A Power Station Lodge, CFMEU) and Bryan Walsh (President, Loy Yang A Power Station Lodge, CFMEU) as bargaining representatives.

In their positions as officials of the CFMEU Loy Yang A Power Station Lodge, we understand that each of Mr Hardy and Mr Walsh are subject to control by the CFMEU, in accordance with the CFMEU’s Rules.

As the CFMEU is a bargaining representative for the proposed agreement, Messrs Hardy and Walsh do not satisfy the requirement in regulation 2.06 of the Fair Work Regulations 2009 that a bargaining representative must be free from control by another bargaining representative.  Therefore neither of them can be validly appointed as bargaining representatives in their personal capacity.

AGL therefore takes the instruments of appointment which name Mr Hardy and/or Mr Walsh as bargaining representatives to be appointments of each of them in their capacity as CFMEU officials.  We therefore regard the relevant employees’ bargaining representative to be the CFMEU.

If the CFMEU asserts that either Mr Hardy or Mr Walsh are not CFMEU officials (and therefore free from control by the CFMEU), please let us know by Monday 31 August.  In the absence of written confirmation from you that Mr Hardy and/or Mr Walsh are not CFMEU officials, AGL will write to each of the employees who has nominated either of them to confirm that their nominated bargaining representative is the CFMEU...” 15

[21] No response to this letter from either the CFMEU or Messrs Hardy and Walsh was received by AGL Loy Yang. As it had foreshadowed, AGL Loy Yang then wrote on 1 September 2015 to each of the employees who had nominated either Mr Hardy or Mr Walsh as a bargaining representative. It informed them that as Mr Hardy and Mr Walsh were officials of the CFMEU’s Loy Yang A Power Station Lodge and, as the CFMEU was a bargaining representative for the proposed agreement, AGL Loy Yang took their purported nominations to be the appointment of the CFMEU. 16 Copies were forwarded to each of Mr Van der Meulen, Mr Hardy and Mr Walsh17 but there was no response to these letters either.

[22] Recounting subsequent events from 16 October 2015, Mr Hardy described himself as a CFMEU representative 18 and Mr Michael Clinch, AGL Loy Yang’s Manager – Group Employee Relations, stated that at no stage on 16 October 2015 or at meetings thereafter did Mr Hardy or Mr Walsh “assert an ability to act as bargaining representatives independent of the CFMEU.”19

CFMEU initiates bargaining for a new agreement

[23] The characterisation of the meetings taking place in the period July-October 2015 as meetings of the SBU was and remains disputed by the CFMEU. While the CFMEU maintains they were not SBU meetings and did not attend them, AGL Loy Yang reported to employees that further SBU meetings were held on 3, 9 and 16 September 2015. 20

[24] Ahead of the 16 September 2015 meeting, AGL Loy Yang had emailed the CFMEU and other members of the SBU the actions from the 9 September 2015 meeting, an agenda and invitation to dial into the 16 September 2015 meeting and a request for any apologies. 21

[25] The CFMEU responded stating:

“The CFMEU Executive has already formally advised AGL of our position over bargaining, so it is farcical to show us as an “attendee” for tomorrow’s meeting.

The CFMEU will formally advise AGL and all other unions when we are ready to commence bargaining for a new Enterprise Agreement so please do not persist with this poor conduct.” 22

[26] By letter dated 28 September 2015, the CFMEU wrote to AGL Loy Yang to formally initiate bargaining for an enterprise agreement. It stated it had no objection “to engaging in joint negotiations with the other site union representatives and/or any other bargaining representative who may be appointed by relevant employees pursuant to s.176(c) of the Act to form a legitimate Single Bargaining Unit (SBU).”  23 The CFMEU proposed a meeting for 16 October 2015 and nominated Mr Hardy, Mr Walsh, Mr Dyke, Mr Noel Zammit (President, Loy Yang Mine Lodge), Mr Peter Waanders (Secretary, Loy Yang Mine lodge), Mr Stuart Blanch (Vice-President, Loy Yang Mine Lodge) and Mr Glenn Duncan (CFMEU Delegate) as “the persons who will be principally conducting negotiations on behalf of the CFMEU for matters common to the workforce and relevant members of that team together with workgroup delegates for matters specific to particular workgroups.”24

[27] Correspondence passed between the CFMEU and AGL Loy Yang on 5 and 8 October 2015. It concerned allegations and counter-allegations regarding the SBU. The CFMEU labelled the SBU with whom AGL Loy Yang had been meeting up until that time as “nothing more than a management dominated committee that happens to include a token handful of employee representatives who represent only a small minority of your employees.” 25 In response, AGL Loy Yang stated that the refusal of the CFMEU to participate in the SBU did “not demote the SBU meetings to those of a ‘committee’.” It further wrote:

“…The CFMEU’s refusal to commence bargaining due to two key union delegates being on leave is unprofessional, tactical and has unnecessarily delayed negotiations. We believe the CFMEU has sufficient resources to provide representatives to commence bargaining, highlighted by the involvement of other CFMEU delegates in on-site industrial matters during this period...” 26

[28] On 16 October 2015, the CFMEU held a meeting of its delegates to formulate its claims for bargaining and then attended its first bargaining meeting with AGL Loy Yang and other unions. 27 AGL Loy Yang regards this meeting as having been the eighth bargaining meeting of the SBU, another meeting having also occurred on 5 October 2015.28

[29] A meeting on 19 October 2015 took place and was followed by a meeting on 28 October 2015, at which the CFMEU proposed and tabled a draft agreement and a summary of claims. An agreement that would cover all employees of AGL Loy Yang was proposed. 29

[30] Thereafter, more bargaining meetings between AGL Loy Yang and the various unions, including the CFMEU, took place, and further correspondence about bargaining passed between AGL Loy Yang and the CFMEU. 30

Disputed CFMEU claims

[31] The claims for a proposed agreement being pursued by the CFMEU has been endorsed by the SBU since at least 28 October 2015. 31

[32] On 28 October 2015, the CFMEU presented its claims on a ‘without prejudice’ basis through a draft of Part 1 of the agreement. 32 Clause 3 of this document indicated “the SBU is obtaining advice regarding coverage of other persons”.

[33] On 18 November 2015, the CFMEU through Mr Dyke, sent to AGL Loy Yang its proposed “Application of Agreement” clause, which read:

“Application of Agreement

This Agreement shall cover all persons employed by:

(a) AGL Loy Yang Pty Ltd (ABN 62 077 985 758); or
(b) AGL Energy Limited (ABN 74 115 061 375) or a related body corporate where that person primarily performs work at the Loy Yang A Power Station and/or Loy Yang Mine workplaces; or
(c) AGL Energy Limited (ABN 74 115 061 375) or a related body corporate where that person’s roles and responsibilities are primarily associated with Loy Yang A Power Station and/or Loy Yang Mine . . .” 33

[34] On 5 January 2016, the CFMEU, through Mr Hardy, sent AGL Loy Yang an updated draft agreement. 34 Having reviewed it, AGL Loy Yang wrote in reply on 11 January 2016 and asserted that it contained non-permitted matters, including a clause that related to the insourcing of roles performed by contractors, such as cleaning (clause 38).35

[35] On 8 February 2016, the CFMEU, through Mr Hardy, sent to AGL Loy Yang that which was described by Mr Hardy as the “latest draft of the SBU proposed agreement.” 36 That proposed agreement was titled “AGL Loy Yang Enterprise Agreement 2016”37 and clause 2 of that document, Application of Agreement, contained the same wording proposed in the CFMEU’s letter from 18 November 2015. Clause 38 had been removed and a new clause had been inserted containing the requirement for the full-time equivalent of ten employees in roles associated with the cleaning of offices and amenities to be employed and there were also clauses requiring emergency services staff and industrial cleaners to be company employees.38 Mr Hardy has previously given evidence that at some stage, advice was received from the CFMEU’s internal lawyer that the word ‘insourcing’ was inappropriate.39

[36] It was not disputed that neither AGL Energy Ltd nor any related body corporate of AGL Energy Ltd had initiated or agreed to bargain for a proposed agreement, but the CFMEU’s claim for a proposed agreement which contained an application or coverage clause in the terms outlined above was maintained until 12 April 2016. 40

[37] The CFMEU asserts that by correspondence commencing on 16 May 2016 and concluding on 24 May 2016, it has advised AGL Loy Yang that it would no longer press the abovementioned claims relating to the cleaning of offices and amenities, emergency services and industrial cleaners. 41 On 26 May 2016, AGL Loy Yang responded to the CFMEU letter dated 24 May 2016 and advised it was considering the CFMEU’s correspondence and would respond in due course.42 This response was sent approximately two hours prior to AGL Loy Yang becoming aware that the application for this PABO had been made43 but the exchange between the parties on this particular issue does not appear to have advanced since.

AGL Loy Yang proposal for facilitated bargaining

[38] Commencing on 24 February 2016, AGL Loy Yang put forward a proposal for a three day facilitated bargaining summit as a way to assist the bargaining process. This produced further correspondence between AGL Loy Yang and the CFMEU. 44 When AGL Loy Yang’s suggestion that former Commissioner Blair facilitate a bargaining summit in Melbourne was rejected by the CFMEU, it then suggested former Senior Deputy President Lacy of the Australian Industrial Relations Commission as the facilitator for a bargaining summit in the Latrobe Valley. The CFMEU rejected this suggestion and declined a further invitation to participate in the facilitated bargaining from AGL Loy Yang on 11 March 2016.

Appointment of six new bargaining representatives for 337 AGL Loy Yang employees

[39] At the beginning of March 2016, 337 AGL Loy Yang employees appointed six individuals as bargaining representatives. 45 This represents over half the workforce and leaves approximately the balance of AGL Loy Yang employees being represented by either the CFMEU, the ETU, the ASU or Professionals Australia.

[40] Amongst the 337 employees are 58 of the 60 AGL Loy Yang employees who had previously appointed either Mr Hardy or Mr Walsh as bargaining representatives. 46 AGL Loy Yang is concerned that the six bargaining representatives are not independent of the CFMEU. It believes Mr Hardy was involved in their appointment and have raised the question as to whether they are free from control or improper influence by the CFMEU47 because of the way in which they were appointed and because three of them appear to be CFMEU delegates.48

CFMEU Application for bargaining orders

[41] The CFMEU made application under s.229 of the Act for bargaining orders, submitting AGL Loy Yang had not been bargaining in good faith. The Commission was not satisfied the evidence in that application established that AGL Loy Yang was in breach of the good faith bargaining requirements in the way that the CFMEU contended and declined to make the orders sought or any other orders. 49

AGL Loy Yang Section 240 Application

[42] On 8 April 2016, AGL Loy Yang filed an application under s.240 of the Act with the Commission and as at the date of hearing, bargaining conferences had been held by the Commission on 9, 26 and 31 May 2016.

First PABO Application

[43] The CFMEU first made an application for a PABO on 21 March 2016 (First PABO application). In the First PABO application as subsequently amended, the group of employees that were to be balloted was identified as employees of AGL Loy Yang Pty Ltd or AGL Energy Ltd who were members of the CFMEU and for whom the CFMEU is a bargaining representative, and who will be covered by the proposed enterprise agreement. 50

[44] Both AGL Loy Yang and AGL Energy Ltd opposed the First PABO application on several grounds, including that there had been no notification time for the proposed agreement. The First PABO application was referred to a Full Bench by the President of the Commission pursuant to s.615A of the Act. Subsequently, the CFMEU sought to further amend the First PABO application by altering the identity of the group of employees to be balloted so as to limit that group to employees of AGL Loy Yang Pty Ltd who are members of the CFMEU for whom the CFMEU is a bargaining representative, and who will be covered by the proposed agreement. The proposed amendment was opposed but the CFMEU ultimately discontinued the First PABO application on 5 April 2016, advising it had come to its attention that s.440(b) of the Act had not been satisfied because it had failed to give a copy of the First PABO application to the Australian Electoral Commission (AEC).

Second PABO Application

[45] The CFMEU made a second application for a PABO on 5 April 2016 (Second PABO application). The group of employees that were proposed to be balloted were employees of AGL Loy Yang who were members of the CFMEU and for whom the CFMEU was a bargaining representative, and who would be covered by the proposed enterprise agreement (relevant employees).

[46] The Second PABO application was also referred to a Full Bench by the President of the Commission, again pursuant to s.615A of the Act.

[47] At the time the CFMEU applied for a PABO by means of the Second PABO application, it had proposed an agreement that would cover all persons employed by AGL Loy Yang Pty Ltd and AGL Energy Limited (AGL Energy) or a related body corporate of AGL Energy, where the person primarily performs work at, or that person’s roles and responsibilities are primarily associated with, the Loy Yang A Power Station and/or Loy Yang Mine. 51

[48] AGL Loy Yang opposed the Second PABO application on several grounds including that the CFMEU could not, on 5 April 2016, apply for a PABO because there had not been a notification time in relation to the proposed enterprise agreement. The Full Bench agreed and dismissed the Second PABO application. 52 Having concluded that there was not a valid application for a PABO, the Full Bench determined it was not necessary for it to decide the other matters argued before it and declined to do so.

This PABO Application

[49] As outlined in paragraph [2] above, the CFMEU made this application for a PABO on 26 May 2016 (Application).

Legislative Scheme and competing contentions

[50] The legislative provisions that regulate the making of a PABO and the conduct of any resulting ballot are set out in Part 3-3, Division 8 of the Act.

[51] Section 437 of the Act sets out who may apply for a PABO:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

[52] Section 443 of the Act sets out when the Commission must make a PABO:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(c) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

Matters for Determination

[53] That the CFMEU is a bargaining representative for the proposed agreement of at least some of the employees who will be covered by the proposed agreement is not in dispute.

[54] The questions to be put to the employees have been specified, including the nature of the proposed industrial action, 53 and the CFMEU has opted for the default arrangement whereby the AEC is to be the ballot agent.54

[55] It is also not in dispute that the nominal expiry date of the current agreement has passed 55 or that the CFMEU served a copy of the Application on AGL Loy Yang and the AEC within 24 hours of making the Application.56

[56] A protected action ballot order may only be made in the circumstances outlined in s.443 of the Act. I must issue a PABO, if I am satisfied that:

(a) there has been an application made under s.437; 57 and

(b) the CFMEU has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. 58 

[57] As indicated in paragraph [4] above, AGL Loy Yang opposes the making of a PABO and submits that the Commission does not have jurisdiction to issue the proposed PABO because:

(a) The Application and draft order do not specify the group or groups of employees to be balloted (s.437(3)(a) and s.443(3)(b) of the Act); and

(b) the Commission ought not be satisfied that the CFMEU has been and is genuinely trying to reach an agreement as required by s.443(1)(b) of the Act.

[58] Further, and in the alternative, if a protected action ballot order is to be made, AGL Loy Yang have made application pursuant to s.443(5) of the Act for the notice period to be extended to seven working days.

Does the Application and draft order specify the group or groups of employees to be balloted as required by ss.437(3)(a) and 443(3)(b) of the Act?

[59] The Application and draft order defines the group of employees to be balloted as follows:

“The group of employees to be balloted are employees of AGL Loy Yang Pty Ltd who are members of the Construction, Forestry, Mining and Energy Union and for whom the Construction, Forestry, Mining and Energy Union is a Bargaining Representative and who will be covered by the proposed enterprise agreement.”

[60] In the context of the Application, the effect of s.176 of the Act is that the CFMEU is the bargaining representative of each of its members employed by AGL Loy Yang and who will be covered by the proposed agreement, unless they have appointed another person as a bargaining representative.

[61] In March 2016, six bargaining representatives were appointed for 337 employees of AGL Loy Yang pursuant to s.176(1)(c) of the Act. This development has been called into question by AGL Loy Yang and it claims there is real uncertainty as to whether each of these six bargaining representatives have been properly appointed under s.176(1)(c) of the Act.

[62] The basis of AGL Loy Yang’s objection is as follows: 59

• Section 178(3) of the Act provides that the regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives;



• Regulation 2.06 provides that a bargaining representative of an employee must be free from control by another bargaining representative (regulation 2.06(a)) and free from improper influence from another bargaining representative (regulation 2.06(b));



• A person under the control or improper influence of the CFMEU is therefore not properly appointed as a bargaining representative;



• It is a matter of importance that the group of employees to be balloted be sufficiently specific so that it can be ascertained with certainty whether a particular employee is clearly in, or clearly out, of the group;



• The material before the Commission in relation to the purported appointment of Mr Hardy and Mr Walsh as bargaining representatives for 60 employees in August 2015, Mr Hardy’s involvement in the appointment of some or all of the six nominated bargaining representatives for the 337 employees in March 2016 (including 58 of the aforementioned 60) and the suggestion that three of the six are CFMEU delegates creates real uncertainty as to whether each of the six bargaining representatives are properly appointed under s.176(1)(c);



• In these circumstances, the Commission cannot be satisfied that the Application has sufficiently specified the group of employees to be balloted so as to comply with s.437(3)(a); and



• Unless the Commission determines the nomination of the six bargaining representatives complies with regulation 2.06, it will be unable to make an order that complies with s.443(3)(b).

Validity of the Application - CFMEU Submissions

[63] The CFMEU denies there is any uncertainty associated with the Application and that the group set out meets the requirements of both s.437(3)(a) and s.443(3)(b) of the Act. The CFMEU submits:

• In the absence of a determination made by a Court acting within jurisdiction that the six individual bargaining representatives are not valid, there is no basis to find the group is unclear;



• The bargaining representatives are validly appointed to those positions unless it is found by a Court (with the requisite jurisdiction) to be otherwise;



• The Commission cannot properly reach the conclusion that the group is unclear merely because AGL Loy Yang has made the submission that there is “uncertainty” as to the validity of a bargaining representative’s appointment;



• AGL Loy Yang have failed to establish that there is any “uncertainty” as to the validity of a bargaining representative’s appointment;



• Mr Hardy’s evidence rejecting any suggestion that any bargaining representative is not free from the control or improper influence of the CFMEU 60 was unchallenged and ought be accepted;



• In order to compile the roll of voters, the AEC will ask AGL Loy Yang to provide a list of its employees at the workplace and will ask the CFMEU to provide a list of members for whom it is a bargaining representative and the employees appearing on both lists will be included on the roll of voters.

Validity of the Application - AGL Loy Yang Submissions

[64] AGL Loy Yang submitted the use of the word “specify” in ss.437(3) and 443(3) of the Act requires a high degree of certainty as to who is or is not within the group of employees. 61

[65] It also submitted the CFMEU proposition that there needs to be a determination by a Court that the six bargaining representatives are not validly appointed is without authority and is contrary to the approach that the Commission has traditionally adopted to the determination of jurisdictional issues. The position of AGL Loy Yang was that the absence of a legislative provision facilitating the making of such a judicial determination tells against the argument that this is a question for a Court.

[66] AGL Loy Yang further submitted that while the Commission cannot make a binding determination whether the six bargaining representatives are validly appointed, it is necessary for it to form an opinion as to this matter as a step to determining whether it has jurisdiction to make a PABO. In support of this proposition, AGL Loy Yang cited Re Cram: Ex parte Newcastle Wallsend Coal Co Pty Ltd, and in particular, the following passage:

“But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation…” 62

[67] AGL Loy Yang then submitted that the presumption of due appointment and capacity to act does not apply in the case of an appointment of bargaining representatives 63 and even if it did apply, it is rebuttable. It asserted that once AGL Loy Yang adduced evidence tending to negative the appointment of the six bargaining representatives, it was incumbent on the CFMEU to satisfy the Commission that they were duly appointed64 but the CFMEU had elected not to do so. As such, there was a sufficient basis for the rebuttal of the presumption of due appointment founded upon:

• The qualification in Regulation 2.06;



• The absence of any explanation (or any proper explanation) of the appointment of the six bargaining representatives; and



• Their refusal to articulate a position differing from the CFMEU on any issue or the refusal of all bar one to meet with AGL Loy Yang away from the CFMEU.

[68] As referred to above, Mr Hardy’s evidence was that he rejected any suggestion made by AGL Loy Yang that any bargaining representative is not free from the control or improper influence of the CFMEU 65 and the CFMEU’s submission was that not having been cross-examined regarding this, his evidence was unchallenged and ought to be accepted.

[69] The evidence upon which AGL Loy Yang relies as relevant to the question of whether the six bargaining representatives are free from control and/or improper influence by the CFMEU was referenced at paragraph 20 of its Final Submissions.

[70] It submits the effect of that evidence is that:

(a) all 337 employees now purportedly represented by the six bargaining representatives were initially represented by the CFMEU;

(b) on 24 August 2015, 58 of the 337 employees now purportedly represented by the six bargaining representatives nominated Mr Hardy and Mr Walsh as bargaining representatives in their individual capacity using forms substantively similar to those used to appoint the six bargaining representatives;

(c) neither the CFMEU, Mr Hardy, Mr Walsh or the 60 employees took issue with AGL Loy Yang when on 26 August 2015 it wrote to them and informed them that because of the apparent control that the CFMEU exercises over Mr Hardy and Mr Walsh it was going to treat the nomination of Mr Hardy and Mr Walsh as a nomination of the CFMEU;

(d) Mr Hardy and Mr Walsh subsequently acted as representatives of the CFMEU, with Mr Hardy being the lead negotiator;

(e) the 60 employees who purportedly nominated Mr Hardy and Mr Walsh as bargaining representatives in their individual capacity, were subsequently represented by the CFMEU in the negotiations from 16 October 2015 to March 2016;

(f) of the 60 employees who purportedly nominated Mr Hardy and Mr Walsh in August 2015, but then were subsequently represented by the CFMEU in the negotiations, 58 of them are amongst the 337 employees who have purported to appoint the six bargaining representatives;

(g) Mr Hardy was involved in the nomination of the six bargaining representatives; and

(h) at least three of the six bargaining representatives – Clive Wilson, Craig Baldwin and Lloyd Proctor – are CFMEU delegates.

Validity of the Application - Determination

[71] I have considered the way in which the Act sets out who are bargaining representatives for proposed enterprise agreements such as the one that is the subject of the Application:

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement… (my emphasis)

178 Appointment of bargaining representatives—other matters

When appointment of a bargaining representative comes into force

(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.

Copies of instruments of appointment must be given

(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:

(a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and

(b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement—be given, on request, to a bargaining representative of an employee who will be covered by the agreement; and

(c) for an appointment made by an employer that will be covered by a proposed single-enterprise agreement that is a greenfields agreement—be given, on request, to an employee organisation that is a bargaining representative for the agreement.

Regulations may prescribe matters relating to qualifications and appointment

(3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.” (my emphasis)

[72] Regulation 2.06 of the Fair Work Regulations 2009 prescribes:

“2.06 Appointment of bargaining representatives—independence

A bargaining representative of an employee must be:

(a) free from control by the employee’s employer or another bargaining representative; and

(b) free from improper influence from the employee’s employer or another bargaining representative.”

[73] Section 176(1)(c) of the Act confirms a bargaining representative has to be appointed in writing. While s.178(1) of the Act deals with “an” appointment and s.178(2) “an instrument of appointment”, I consider s.178(3) of the Act somewhat ambiguous. Its title, “Regulations may prescribe matters relating to qualifications and appointment”, lends itself to either the action of appointment or the ongoing appointment. Its wording “the regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives” could also conceivably cover the action of appointing or “an” appointment.

[74] The title of regulation 2.06, “Appointment of bargaining representatives—independence” could cover either the action of appointing or “an” appointment, while the subsequent wording of regulation 2.06 seems to suggest that a bargaining representative must be independent both at the time of appointment and during the period of time he or she holds the appointment.

[75] AGL Loy Yang has called into question the validity of the Application on the basis of alleged involvement of Mr Hardy in the process of appointing the six bargaining representatives. It says the revelation that three of the six bargaining representatives are CFMEU delegates creates uncertainty as to whether they are properly appointed. The result of this, so it is put, is that the description of the employees to be balloted in the Application and accompanying draft order as “members of the Construction, Forestry, Mining and Energy Union and for whom the Construction, Forestry, Mining and Energy Union is a bargaining representative” lacks the specificity required for the making of a PABO.

[76] The CFMEU submits it is for a Court acting within jurisdiction to determine that the six individual bargaining representatives are not valid bargaining representatives.

[77] AGL Loy Yang, while acknowledging that the Commission cannot make a binding determination under s.437 of the Act whether bargaining representatives are validly appointed, submits that it is necessary for me to form an opinion as a step in determining whether I have jurisdiction to make a protected action ballot order.

[78] In considering these propositions, I am conscious that the Commission has a range of powers under the Act. The legislature has granted various discretionary powers while others are defined and/or confined. While the Act specifically empowers an employee to revoke a person’s appointment as a bargaining representative, 66 there are no provisions that empower the Commission to determine whether a bargaining representative is independent as at the time of appointment or while subsequently acting as a bargaining representative. This is in contrast to other powers the Commission holds, such as the power to decide whether an applicant for an entry permit is a fit and proper person to hold one67 and to also restrict the rights of entry of an organisation or officials of an organisation if it is satisfied that the organisation or an official of an organisation has misused those rights.68

[79] There is an absence of guidance as to how the legislature intended s.178(3) of the Act and regulation 2.06 to operate in circumstances where either the act of appointing a bargaining representative or a bargaining representative’s ongoing appointment is subject to challenge on the basis of a lack of the requisite independence. However, it seems to me that AGL Loy Yang seeks a form of declaratory relief in relation to the validity of the appointment of the six bargaining representatives which I am not empowered to grant. I consider that if maintained, a dispute regarding the status of the six bargaining representatives is a matter that requires resolution by a Court of competent jurisdiction.

Amendment of the Application

[80] As part of its response to the submission of AGL Loy Yang that the Application and draft order do not specify the group or groups of employees to be balloted, the CFMEU submitted in the alternative that the Commission has the power to make a minor amendment to the Application pursuant to s.586 of the Act so as to ensure the group of employees to be balloted is clearly specified. This course of action is opposed by AGL Loy Yang.

[81] AGL Loy Yang submitted that if I am not satisfied that the six bargaining representatives are free from control and/or improper influence by the CFMEU, allowing such an amendment would have the effect of disenfranchising the 337 employees who appointed them.

[82] The proposed amendment suggested by the CFMEU would change the group of employees to be balloted from:

“The group of employees to be balloted are employees of AGL Loy Yang who are members of the Construction, Forestry, Mining and Energy Union and for whom the Construction, Forestry, Mining and Energy Union is a bargaining representative, and who will be covered by the proposed enterprise agreement.”

to

“The group of employees to be balloted are employees of AGL Loy Yang who are members of the Construction, Forestry, Mining and Energy Union and who have not nominated or purported to nominate a bargaining representative other than the Construction, Forestry, Mining and Energy Union and who will be covered by the proposed enterprise agreement.”

[83] Section 586 of the Act provides as follows:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[84] The powers of the Commission under s.586 of the Act have been considered in a number of Full Bench decisions. 69 In Mihajlovic v Lifeline Macarthur (Mihajlovic),70 the Full Bench stated at paragraph [35]:

“There is a long history in predecessor statutes to the Act of provisions which are equivalent or at least similar to s.586. Section 41(1)(l) and (k) of the Conciliation and Arbitration Act 1904 (Cth) empowered the Conciliation and Arbitration Commission to "allow the amendment, on such terms as it thinks fit, of any proceedings" and to "correct, amend or waive any error, defect or irregularity, whether in substance or in form". In Re Coldham; Ex parte BLF 71 the High Court gave these provisions, together with the power to "extend any prescribed time" in s.41(1)(m), a wide field of operation so as to give effect to the statutory intention that proceedings before the Commission be directed to the merits and that technicalities and legal forms should not be regarded. These provisions were reproduced in s.111(1)(p), (q) and (r) respectively of the Industrial Relations Act 1988, and were retained in that Act upon its metamorphosis into the Workplace Relations Act 1996. The 2006 Work Choices manifestation of the Workplace Relations Act removed the general power to extend time, but retained the other powers in s.111(1)(l) and (m). The power to waive errors, defects or irregularities was used in a wide variety of circumstances as to both procedural and substantive matters: see, for example, Re Union of Christmas Island Workers72; Re The Association of Professional Engineers, Scientists and Managers, Australia73; Re Perth Bus Certified Agreement74; Caruana v STA Pty Ltd75; Boom Logistics/Employee Naval Base Industrial Agreement 2004/200576 and CPSU v Port Adelaide Training and Development Centre Incorporated t/as PATDC Employment and Training77.”

[85] The guidance given by the Full Bench in Mihaljovic and the High Court in Re Coldham; Ex parte BLF 78 suggests my discretionary powers may be broad enough to amend the Application in the manner suggested by the CFMEU. However, I do not consider it necessary to decide this. I consider that if there was uncertainty, it could be addressed by applying s.599 of the Act, which does not require me to make a decision in relation to the Application in the terms applied for.

[86] However, I am satisfied the intention of the CFMEU has been and remains that the group of employees to be balloted are the approximately 90 AGL Loy Yang employees who are CFMEU members and for whom it is a bargaining representative, and who will be covered by the proposed agreement. 79 To the extent this might require further specification so that the AEC is able to conduct a ballot, and I am not persuaded in this case it would be necessary, an order could be made in appropriate terms without the need to amend the Application.

Can I be satisfied that the CFMEU has been, and is, ‘genuinely trying to reach an agreement’?

[87] In deciding the question of whether the CFMEU has been, and is, ‘genuinely trying to reach an agreement’, I have been asked to have regard to material that includes:

• Two statements from Mr Hardy filed in support of the Application;



• The CFMEU’s Outline of Closing Submissions dated 9 June 2016;



• The statement of Michael John Clinch dated 31 May 2016;



• The statement of Russell Mark James dated 31 May 2016;



• AGL Loy Yang’s Outline of Submissions dated 31 May 2016; and



• AGL Loy Yang’s Final Submissions dated 10 June 2016.

[88] Incorporated into this material is a substantial volume of material that has either been produced for or elicited from each of the First PABO Application, the Second PABO Application and the CFMEU Application for bargaining orders. The material indicates that bargaining has occurred, that it has been approached with significant determination from both sides and that progress has been hard work.

[89] I have approached the determination of the question as to whether the CFMEU has been, and is, ‘genuinely trying to reach an agreement’ having regard to the principle enunciated by the Full Bench in Esso Australia Pty Ltd v AMWU and Others:

“…the question of whether the applicant for a protected action ballot 'has been, and is, genuinely trying to reach an agreement' with the relevant employer is to be determined having regard to all of the relevant facts and circumstances of the particular case.” 80

[90] The CFMEU submits its evidence demonstrates its intention to reach an agreement, that it has been engaged in negotiations with AGL Loy Yang for approximately eight months and that the complaints of AGL Loy Yang, even if made out, cannot demonstrate that it is not genuinely trying to reach agreement. Indeed, the CFMEU asserts that at their highest, the complaints of AGL Loy Yang are simply complaints as to the tactics or strategies it is employing in its attempts to reach agreement over the terms of a new agreement.

[91] The evidence the CFMEU relies upon to assert the authenticity and genuineness of its intention includes:

• CFMEU officials and delegates meeting with AGL Loy Yang on 28 October 2015 and outlining the CFMEU claims;



• Providing written copies of its claims to AGL Loy Yang during these negotiations;



• Participating in approximately seventeen negotiation meetings and exchanging correspondence in furtherance of the negotiations;



• The exchange of draft agreements, draft proposals and draft clauses and the making of proposals, amended proposals and counter proposals;



• Dropping its previous claim regarding the scope of the agreement on 12 April 2016;



• Modifying its proposed clauses 26.2 and 26.10 on 16 May 2016 and proposed clause 64.4.5 on 24 May 2016 to address concerns of AGL Loy Yang; and



• Responding to AGL Loy Yang’s claims and proposals and providing reasons for the responses. 81

[92] In its Outline of Closing Submissions, the CFMEU made the following submissions on the evidence:

“20. The evidence of the CFMEU demonstrates that for about eight months it has been engaged in negotiations with AGL for an enterprise agreement to replace the existing enterprise agreement which reached its nominal expiry date on 31 December 2015.

21. Turning to the key matter of the CFMEU’s intent (as per J.J. Richards), the evidence of the CFMEU demonstrates that its intention, object or purpose is to reach agreement with the respondent over the terms of an enterprise agreement (see paragraph 100 of exhibit A1). On the evidence, it is uncontroversial that a new enterprise agreement is the goal of the CFMEU in the negotiations. Mr Hardy was not even cross examined on this matter. It is not alleged by AGL (nor could it properly be alleged) that the CFMEU has an extraneous intention, object or purpose or is seeking something other than an enterprise agreement in the negotiations.

22. In addition to the evidence of the CFMEU’s intent, the evidence demonstrates the authenticity and genuineness of the CFMEU’s intention. This evidence includes:

a. That CFMEU officials and delegates met with the respondent over five months ago on 28 October 2015 and outlined its claims (see paragraph 48 of exhibit A-1 and the evidence of Mr Clinch at PN 867).

b. That the CFMEU has provided written copies of its claims to the respondent during these negotiations (see paragraphs 51, 54, 59, 68, 72 and 89 of exhibit A-1 and the evidence of Mr Clinch at PN 869).

c. That since negotiations began the parties have conducted about 17 formal negotiation meetings (see paragraph 96 of exhibit A-1 and the evidence of Mr Clinch at PN 871).

d. That the parties have exchanged various emails and correspondence in attempts to further the negotiations (see for example paragraphs 50, 53, 56 and 58 of exhibit A-1).

e. That the parties have exchanged draft agreements, draft proposals and draft clauses (see for example annexures GH-42, GH-43, GH-48, GH-76, GH-86, GH-87, GH-88, GH-128 and GH-132 of exhibit A-1).

f. That the parties have made proposals, amended proposals, counter-proposals. Most recently, the CFMEU has taken steps which have addressed some of the issues in dispute. Each of these steps have brought the parties closer to agreement:

i. on 12 April 2016 the CFMEU dropped its previous claim regarding the scope of the agreement (see paragraph 85 of exhibit A-1);

ii. on 16 May 2016 the CFMEU modified its proposed clauses 26.2 and 26.10 to address concerns that had been raised by AGL (see paragraph 89 and annexures GH-127 and GH-128 of exhibit A-1); and

iii. on 24 May 2016 the CFMEU modified its proposed clause 64.4.5 (industrial cleaning) to address a further concern that had been raised by AGL (see paragraph 94 and annexure GH-132 of exhibit A-1).

g. That the CFMEU has responded to AGL’s claims and proposals and reasons have been provided for the responses (see for example paragraphs 45, 66 and 67 of exhibit A-1).

h. Most recently, the parties have been unable to agree on suitable dates and a suitable process for further bargaining meetings. The Commission has scheduled conciliation conferences pursuant to s.240 (see PN 888).”

[93] In addition to asserting that the evidence clearly establishes that it has at all times genuinely tried to reach an agreement with AGL Loy Yang and is still trying to, the CFMEU submits there is no evidentiary basis to make a finding to the contrary.

[94] In rejecting AGL Loy Yang’s reliance on the CFMEU’s alleged involvement in putting forward the six bargaining representatives and other allegations 82 to claim it has not been and is not genuinely trying to reach agreement, the CFMEU relies on what it claims is established principle and the test in s.443(1)(b) of the Act. It accuses AGL Loy Yang of attempting to conflate the ‘genuinely trying to reach agreement’ test under s.443(1)(b) of the Act with the good faith bargaining test under s.228 of the Act and claims this is contrary to the proposition of the Full Bench in Esso Australia Pty Ltd v AMWU83 that while a party may not meet a particular good faith bargaining requirement, it may nevertheless be genuinely trying to reach agreement.

[95] The CFMEU denies the complaints of AGL Loy Yang and submits that even if they were made out, they cannot demonstrate that the CFMEU is not genuinely trying to reach agreement. It submits that at their highest, the complaints of AGL Loy Yang are complaints as to the tactics or approach employed by the CFMEU during bargaining to reach agreement over the terms of a replacement enterprise agreement.

[96] In response to AGL Loy Yang’s assertion that the CFMEU’s involvement in putting forward individual bargaining representatives should lead to a finding that it is not genuinely trying to reach agreement, the CFMEU relied on Textile, Clothing and Footwear Union of Australia 84 and submitted that Mr Hardy’s evidence that the CFMEU is not improperly influencing or controlling any individual bargaining representatives is unchallenged and ought be accepted.

[97] Finally, the CFMEU relied on the Full bench decision in Coles Supermarkets (Australia) Pty Ltd v The Australian Meat Industry Employees Union, 85 submitting it established that when considering whether an applicant has been and is genuinely trying to reach agreement, an examination of whether the applicant had been trying to reach agreement at the time of the hearing and before this time (including after the date the Application was filed) is required.86

[98] AGL Loy Yang submits that the Application must be dismissed, because the Commission cannot be satisfied that the CFMEU “has been, and is, genuinely trying to reach an agreement” with AGL Loy Yang as required by s.443(1)(b) of the Act.

[99] As to the CFMEU’s reliance on the Full Bench decision in JJ Richards & Sons Pty Ltd v TWU (JJ Richards), 87 AGL Loy Yang submitted that JJ Richards should not be seen as putting forward an alternative test or criterion for applying the statutory formula set out in s.443 of the Act and nor should it be seen as precluding consideration of all of the facts and circumstances in the Application. AGL Loy Yang submitted that JJ Richards did not involve conduct of the kind engaged in by the CFMEU in this case and nor did it involve broader questions about the conduct of the bargaining.

[100] In submitting that the question of whether an applicant for a PABO ‘has been, and is, genuinely trying to reach agreement’ with the relevant employer is to be determined having regard to all of the relevant facts and circumstances, AGL Loy Yang relies on Total Marine Services Pty Ltd v MUA (Total Marine) 88 and Esso Australia Pty Ltd v AMWU and Others (Esso).89

[101] In particular, it cited the following passage from Total Marine:

"[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement.” (footnotes omitted)

[102] It also relied upon the following passage from Esso:

“[57] Whether an applicant 'has been, and is, genuinely trying to reach an agreement' is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad).

[58] In our view the adoption of a decision rule or principle of the type proposed in Australia Post No.1 and Airport Fuel Services would be an inappropriate fetter on the exercise of what the legislature clearly intended would be a discretionary decision. As Bowen LJ observed in Gardner v Jay,: 

"When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Act or the Rules do not fetter the discretion of the Judge why should the court so do." 

[59] There is no legislative warrant for the adoption of a decision rule such that if an applicant is, or has been, pursuing a substantive claim which is not about a permitted matter it is not genuinely trying to reach an agreement within the meaning of s.443(1)(b). The fact that an applicant is, or has been, pursuing a claim about a non-permitted matter is relevant to whether the test posited by s.443(1)(b) has been met, but it is not determinative of the issue. A range of factual considerations may potentially be relevant in that context, including but not limited to the subject matter of the claim, the timing of the advancement of the claim, the basis upon which the claim is advanced, the significance of the claim in the course of the negotiations, the claimant's belief as to whether the claim is about a non-permitted matter or not, where there is legal clarity about the permitted status of the claim, whether the other party has placed in contest whether the claim is about a permitted matter, and whether such a claim has been withdrawn and, if so, when and in what circumstances. The diversity of the factual circumstances and nuances which will be found in different cases means that it is not possible to say that any particular factor or consideration will always be determinative of the result.” (endnotes omitted)

[103] AGL Loy Yang submitted that when construing s.443(1)(b) of the Act, consideration must be given not just to the current bargaining position of the CFMEU but to all of its bargaining conduct over the course of the negotiations since July 2015 and to whether the CFMEU’s bargaining conduct demonstrates that it has been genuine in trying to reach agreement.

[104] AGL Loy Yang relies on the natural and ordinary meaning of the words in s.443(1)(b) of the Act. In particular, it drew attention to dictionary definitions for “genuine” as follows:

• “…4. Having the character or origin represented; real, true, not counterfeit, unfeigned, unadulterated. …”; 90 and

“1. Being truly such; real; authentic …” 91

[105] It submitted that I should interpret the words used by Parliament, having regard to their context and the purpose or object of the provision as per the principles set out in the judgment of Flick J in JJ Richards & Sons Pty Ltd v Fair Work Australia. 92

[106] AGL Loy Yang set out in detail a legislative history of ss.443(1)(b) and 413(3) of the Act and their predecessors 93 and submitted:

• The change in legislative language between section 170PI of the Industrial Relations Act 1988 and 170MP of the Workplace Relations Act 1996 was significant. It reflected an intention that merely trying to reach agreement was not enough and introduced the requirement that the “trying” be genuine. In asserting this, AGL Loy Yang relied on the proposition that where an expression in an Act or in regulations has been amended, generally that will indicate an intention on the part of the legislature that the later expression should bear a different meaning or scope from the earlier expression. 94



• The wording “has been, and is, genuinely trying to reach agreement” adopted in s.443(1)(b) of the Act is materially similar to the wording of section 461 of the previous, Workplace Relations Amendment (Work Choices) Act 2005 This demonstrates a legislative intent to adopt the same meaning in section 443(3)(1(b) as applied in section 461 and section 170MP of the Workplace Relations Act 1996.



• The word “genuinely” must have some work to do and consistent with Esso and Total Marine, the application of the test in section 443 should take into account all of the circumstances, including not just the CFMEU’s ultimate object but also the genuineness of its conduct.

[107] AGL Loy Yang submits that the CFMEU must be acting “genuinely” and it is not enough for the CFMEU to show that its goal is simply to reach an agreement. It summarised the evidence it submits demonstrates that the CFMEU has not been genuine in its attempts to reach agreement, both historically (“has been”) and currently (“is”) as follows:

(a) from July to mid October 2015, the CFMEU refused to attend bargaining meetings, initially because “they did not want to” and then because two of their preferred representatives, Mr Hardy and Mr Walsh, were away on holiday. This was despite the relevant District Secretary with authority to conduct the negotiations on behalf of the CFMEU (Mr Dyke), and the CFMEU’s site representatives (who actually represented the majority of members) other than Mr Hardy and Mr Walsh, being available to participate in the bargaining;

(b) in August 2015, during that initial period when the CFMEU was refusing to bargain, the CFMEU through Mr Hardy provided forms which purported to appoint Mr Hardy and Mr Walsh as bargaining representatives on behalf of 60 AGL Loy Yang employees, in an apparent attempt to frustrate the bargaining that was occurring and/or to provide a further excuse for the ongoing refusal of the CFMEU to participate. Both Mr Hardy and Mr Walsh were then (and are now) officers of the CFMEU. At the time of their purported nomination they were still away on holiday;

(c) from November 2015 until 12 April 2016, the CFMEU persisted in a claim for an agreement which covered not just AGL Loy Yang, but also AGL Energy and related bodies corporate. This was despite the fact that the AGL entities other than AGL Loy Yang had neither agreed to bargain, initiated bargaining themselves, nor even been asked by the CFMEU to bargain and AGL Loy Yang’s repeated objections; 95

(d) from 11 January 2016 to 24 May 2016, the CFMEU persisted with claims for non- permitted matters, seeking the insourcing of work currently performed by contractors, relating to cleaning of offices and amenities, the emergency response group and industrial cleaning;

(e) since 24 February 2016, the CFMEU has refused on three occasions to participate in an intensive three day “facilitated bargaining summit”, conducted by a retired member of the Fair Work Commission or a retired member of the Australian Industrial Relations Commission, which was proposed by AGL Loy Yang to assist the parties to move forward in the negotiations;

(f) in March 2016, the CFMEU through Mr Hardy was involved in the purported nomination by 337 employees of six individuals as bargaining representatives. Real questions arise regarding the independence of these six individuals, and whether they are free from control, or improper influence by, the CFMEU.

[108] AGL Loy Yang places great significance on conduct of the CFMEU, through Mr Hardy, relating to the appointment of the six bargaining representatives. It claims this conduct and development is significant because it is ongoing and therefore relevant to whether the CFMEU is genuinely trying to reach agreement and because it provides context to the earlier conduct of the CFMEU from July 2015 onwards.

[109] Referring to the email prepared by Mr Hardy which describes a strategy to “box smart”, 96 AGL Loy Yang suggests there is game-playing being engaged in by the CFMEU which has included the appointment of the six bargaining representatives. AGL Loy Yang outlined a summary of conduct it says establishes that the CFMEU has adopted various tactical approaches since July 2015 which have delayed and frustrated bargaining for an agreement. Behaviour from July 2015 until the CFMEU first attended a bargaining meeting on 16 October 2015 was outlined, and included:97

(a) The CFMEU’s refusing to attend bargaining meetings from July until 16 October 2015, first because “We do not want to start EBA negotiations early…”, and then because of the absence on holidays of two of its negotiators (Mr Hardy and Mr Walsh). This position was maintained by the CFMEU notwithstanding the fact that at all times Mr Dyke had authority to conduct the negotiations and was available to attend the meetings;

(b) The refusal to attend any bargaining meeting until 16 October 2015, and that despite the fact that AGL Loy Yang had provided its proposals for bargaining to the CFMEU on 23 July 2015, and draft enterprise agreements on 24 August 2015 and 12 November 2015, the failure to provide any response to AGL Loy Yang’s proposed agreement until more than two months later, when the CFMEU tabled its claims on 28 October 2015;

(c) The refusal to attend bargaining meetings because Mr Hardy and Mr Walsh were absent on leave was maintained even though as Mr Dyke conceded “obviously no one is irreplaceable” and even though Mr Dyke and a number of other CFMEU representatives (including 4 AGL Loy Yang employees who from mid October 2015 represented the CFMEU in the bargaining) were available throughout the July-October 2015 period. Mr Dyke also accepted that one cannot operate bargaining on the basis that just because one bargaining representative is not available the meeting cannot go ahead;

(d) Mr Hardy sending to AGL Loy Yang 60 employee bargaining representative nominations on 24 August 2015. Approximately half of these nomination forms purported to appoint Mr Hardy, and the remainder Mr Walsh, as a bargaining representative. AGL Loy Yang suggested that the purpose of the nomination of Mr Hardy and Mr Walsh in an individual capacity was to frustrate the bargaining that was occurring in August 2015 and/or to provide a further excuse for the ongoing refusal of the CFMEU to participate in such bargaining;

(e) AGL Loy Yang not receiving a response to its correspondence of 26 August 2015, to each of the CFMEU, Mr Hardy and Mr Walsh, and the employees who had completed the nomination forms, in relation to the purported nominations. In the correspondence, AGL Loy Yang explained that because Mr Hardy and Mr Walsh were under the control of the CFMEU, having regard to regulation 2.06 of the FW Regulations (which requires that bargaining representatives be free of control, or improper influence, by other bargaining representatives), AGL Loy Yang took the forms to have nominated the CFMEU as a bargaining representative;

(f) The absence of an assertion by Mr Hardy or Mr Walsh of an ability to act as bargaining representatives independent of the CFMEU on and from 16 October 2016 [sic], when the CFMEU joined the bargaining. (footnotes omitted)

[110] AGL Loy Yang indicated it had no knowledge of the purported nominations of Mr Hardy and Mr Walsh in August 2015 ever having been withdrawn but in any event, submitted that no withdrawal was necessary because the purported nominations were nothing more than a CFMEU tactic and the appointments were not valid because Mr Hardy and Mr Walsh have at all times been officials of the CFMEU and subject to its control.

[111] AGL Loy Yang submits that the conduct of the CFMEU has coloured many months of the bargaining as follows:

(a) July to October 2015 were coloured by the CFMEU’s refusal to bargain and its attempts to frustrate bargaining by facilitating the purported nomination as bargaining representatives of Mr Hardy and Mr Walsh while they were away on holiday;

(b) November 2015 to April 2016 were coloured by the CFMEU’s insistence on an agreement to cover AGL Energy and related bodies corporate;

(c) January to 24 May 2016 (two days before the Application was filed) were coloured by the CFMEU’s pursuit of non-permitted matters despite AGL Loy Yang pointing out that the matters were non-permitted; and

(d) March 2016 to the present time were (and still are) coloured by the CFMEU’s apparent control or improper influence over the NBRs.

[112] It submitted that these overlapping time periods demonstrate there has not been a single moment since the bargaining began that the CFMEU has been genuinely trying to reach agreement.

[113] AGL Loy Yang further submitted that the CFMEU cannot satisfy me that it is genuinely trying to reach agreement on the basis that its conduct in relation to the six bargaining representatives is continuing and neither the CFMEU, Mr Hardy nor Mr Dyke has resiled from it.

[114] Finally, AGL Loy Yang challenged the CFMEU’s reliance on Textile, Clothing and Footwear Union of Australia, 98 submitting it does not stand for the proposition that the CFMEU’s involvement in the appointment of the six bargaining representatives cannot lead to a finding that the CFMEU is not genuinely trying to reach agreement. AGL Loy Yang submitted that the circumstances in Textile, Clothing and Footwear Union of Australia are distinguishable and whereas the relevant union official in that case gave evidence about the appointment and resignation of eight individual bargaining representatives which appeared to be considered by the Commission, Mr Hardy elected not to give substantive evidence in response to the case AGL Loy Yang has put against the CFMEU.

Consideration

[115] Correspondence between AGL Loy Yang and the CFMEU regarding bargaining for a new agreement commenced in July 2015. Despite their physical absence due to being on leave, Mr Hardy and Mr Walsh entered into the exchange on 24 August 2015 by virtue of their appointment as bargaining representatives for 60 AGL Loy Yang employees. Formal bargaining between the CFMEU and AGL Loy Yang commenced with a meeting on 16 October 2015, the CFMEU having initiated bargaining by letter dated 28 September 2015. During the ensuing eight months the parties have frequently exchanged correspondence containing assertions and counter-assertions, in addition to meeting and the other proceedings that I have detailed above.

[116] I have had regard to the following when assessing whether the CFMEU has been and is genuinely trying to reach agreement with AGL Loy Yang:

(a) the CFMEU’s refusal to bargain and the purported nomination as bargaining representatives of Mr Hardy and Mr Walsh while they were away on holiday during the period July to October 2015 for contextual purposes;

(b) the CFMEU’s pursuit of an agreement to cover AGL Energy and related bodies corporate during the period November 2015 to April 2016;

(c) the CFMEU’s pursuit of matters contested by AGL Loy Yang as being non-permitted during the period January to 24 May 2016;

(d) The response and attitude of the CFMEU during February and March 2016 to the AGL Loy Yang proposal for an intensive bargaining summit in March 2016; and

(e) The allegations regarding the CFMEU’s involvement in the nomination by 337 employees of the six individuals as bargaining representatives and their subsequent, ongoing participation in the bargaining process.

July – 16 October 2015

[117] At paragraphs [11]-[28] above, I have outlined events that took place and details from correspondence that passed between the CFMEU and AGL Loy Yang between 2 July 2015 and 16 October 2015, which covers the period from AGL Loy Yang’s first invitation to the CFMEU to commence bargaining until the first meeting at which they formally bargained in relation to a new agreement.

[118] It seems surprising that the CFMEU, which could conceivably represent around 430 AGL Loy Yang employees, did not feel capable of commencing negotiations at all until eleven weeks before the existing agreement’s expiry because two members of its large component of an otherwise sizeable SBU were absent for periods of extended, pre-arranged leave. I find this particularly so given the lengthy duration of negotiations for previous agreements and because other senior members of the CFMEU were available, including Mr Dyke, the CFMEU’s District Secretary plus the President, Vice President and Secretary of the Loy Yang Mine Lodge and a CFMEU Delegate. Nonetheless, a meeting of the minds was not possible on these preliminary issues and it was apparent during this period that the CFMEU took the status and composition of the SBU very seriously. 99

[119] However, having made the absence of Mr Hardy and Mr Walsh central to the CFMEU refusal to commence bargaining, the subsequent development whereby they were appointed bargaining representatives for 60 employees on 24 August 2015, despite still being on leave and when they were to remain on leave for weeks after, introduced an element of farce, particularly since it was Mr Hardy who sent the bargaining representative nominations to AGL Loy Yang, presumably whilst on leave in Northern Australia. Clearly Mr Hardy was involved in this development even if precisely what role in the negotiations he intended to play from Northern Australia until his return to work nearly eight weeks later, on 16 October 2015, was never made clear. The ‘Appointment of Bargaining Representative’ form also made it clear that Mr Hardy was the Secretary, Loy Yang A Power Station Lodge, Victorian District Branch, Mining & Energy Division of the CFMEU at the time which seems to have run contrary to the CFMEU’s stated intention not to be involved in bargaining until Mr Hardy and Mr Walsh had returned from leave.

[120] At paragraphs [20] and [21] above, I have included details relating to AGL Loy Yang’s response to these two appointments and the lack of a reply to this correspondence from the CFMEU, Mr Hardy and Mr Walsh. It does not appear the appointment of Mr Hardy and Mr Walsh as individual bargaining representatives was revoked when the CFMEU subsequently commenced bargaining, notwithstanding they were certainly CFMEU representatives from that time. Mr Hardy, Mr Walsh and the CFMEU did not challenge AGL Loy Yang when it advised in the letter dated 26 August 2015 that it was going to treat the nomination by the 58 employees of Mr Hardy and Mr Walsh as bargaining representatives as the nomination of the CFMEU. The employees did not challenge this assertion of AGL Loy Yang either.

[121] As it transpired, Mr Hardy was confirmed as the lead negotiator of the CFMEU from 16 October 2015, with the authority to speak on behalf of the CFMEU 100 and at no time after 16 October 2015 did either Mr Hardy or Mr Walsh ever assert an ability to act as bargaining representatives independent of the CFMEU.101

The CFMEU’s pursuit of an agreement to cover AGL Energy and related bodies corporate during the period November 2015 to April 2016

[122] While the CFMEU initially stated that it sought an agreement to “cover all employees who are employed by AGL Loy Yang Pty Ltd”, it wrote to AGL Loy Yang on 18 November 2015 advising that it wanted the proposed agreement to cover not just AGL Loy Yang, but also AGL Energy Limited (AGL Energy) and related bodies corporate. 102 AGL Loy Yang’s letter dated 26 November 2015 rejected the proposal to include these entities.103 While AGL Energy and its related bodies corporate had not initiated or agreed to bargain, subsequent draft agreements tabled by the CFMEU all sought to cover AGL Loy Yang, AGL Energy and related bodies corporate.

[123] At no stage did AGL Energy and its related bodies corporate agree to bargain for an enterprise agreement at Loy Yang. AGL Loy Yang had maintained its objection to the CFMEU seeking a PABO in support of an agreement covering AGL Loy Yang, AGL Energy and related bodies corporate in both the First and Second PABO applications but the CFMEU persisted with the claim until after the Second PABO application was filed on 5 April 2016. The futility of the CFMEU’s claim was laid bare in the decision of the Full Bench that heard the Second PABO application. 104 In circumstances in which neither AGL Energy nor any related bodies corporate had ever agreed to or initiated bargaining and given the clear legislative intent behind s.437(2A) of the Act, I do not accept the CFMEU was genuinely trying to reach an agreement throughout the period in which it persisted with this claim.

CFMEU pursuit of matters contested by AGL Loy Yang as being non-permitted during the period January to 24 May 2016

[124] The Full Bench in Esso enunciated that the fact that an Applicant is, or has been, pursuing a claim about a non-permitted matter is relevant to whether the test posited by s.443(1)(b) of the Act has been met, but it is not determinative of the issue and suggested that a range of factual considerations may potentially be relevant in that context. 105 I have had regard to this.

[125] On 28 October 2015, the CFMEU first advanced claims for the insourcing of emergency response services, commercial cleaning of offices and amenities and industrial cleaning and lubrication attendant work. The claims were included amongst the range of CFMEU claims outlined in a draft agreement and accompanying summary document.  106 They were delivered within a negotiating context whereby AGL Loy Yang had previously communicated that it was under pressure from falling revenue from base load electricity due to low wholesale electricity prices while operating costs had continued to rise. It had also expressed the need for improvements to the flexibility and productivity of operations and had foreshadowed the need to reduce manning levels.107

[126] As referred to in paragraph [34] above, in response to the CFMEU’s revised draft proposal of 5 January 2016, AGL Loy Yang first asserted there were claims for non-permitted matters that did not satisfy the requirements of s.172 of the Act, including a claim for insourcing in a letter dated 11 January 2016. 108 This assertion was immediately flatly rejected by the CFMEU, which suggested the issue be discussed at an SBU meeting the next day.109 Further correspondence then passed between the parties on the issue.110

[127] On 8 February 2016, the CFMEU sent to AGL Loy Yang an updated proposal which maintained the claims for the emergency response services and cleaning of offices and amenities to be performed by AGL Loy Yang employees. 111 The emergency response services claim had remained the same but the previous clause relating to insourcing had been changed and in its place was a clause requiring AGL Loy Yang to employ the cleaners directly. AGL Loy Yang conveyed objections by letter dated 12 February 2016112 and also maintained its objection to the previously made claim regarding industrial cleaning. The evidence was that the effect of the claims were that AGL Loy Yang would be required to employ functions that are currently performed by external contractors.113 This was acknowledged by Mr Hardy and Mr Dyke. It was apparent that the nature of the claims was the subject of legal debate. AGL Loy Yang sought confirmation that the CFMEU would not be pursuing the claims further.

[128] Mr Hardy’s evidence was that he received legal advice about the status of the disputed claims from the CFMEU’s internal lawyers. It seems that at the very least, this advice may not have been obtained until after the last bargaining meeting held on 22 February 2016. 114 If it was in writing, it was not produced.115

[129] The CFMEU continued to press the claims despite the dispute with AGL Loy Yang over their validity (they were in contest and maintained throughout the First and Second PABO applications) as follows:

• The claim regarding the cleaning of offices and amenities was maintained by the CFMEU until 16 May 2016; 116

The emergency response services claims were maintained by the CFMEU until 18 May 2016; 117 and

The industrial cleaning claim was modified by the CFMEU two days before the Application was filed on 26 May 2016. As to whether the modification has resulted in leaving a claim that will satisfy the requirements of s.172 of the Act is not yet agreed between the parties. 118

[130] The CFMEU maintained the claims throughout the First and Second PABO applications. Soon after the Second PABO application was decided, it progressively withdrew or modified each of them and lodged the Application soon after. Given the impact the existence of the claims had been having on bargaining and the timing of their withdrawal, I consider there was a lack of genuineness during the period in which they were maintained.

The response of the CFMEU to the AGL Loy Yang proposal for an intensive bargaining summit

[131] AGL Loy Yang invited the CFMEU, ETU, ASU and Professionals Australia to consider its proposal for an intensive bargaining summit by letter dated 24 February 2016. The proposed off-site, three day intensive, with delegates released from shift and paid and all expenses met by AGL Loy Yang was intended to be chaired and facilitated by former Fair Work Commissioner, Mr Wayne Blair. 119

[132] The CFMEU replied on behalf of the SBU by a letter dated 26 February 2016. 120 While it raised some matters that warranted further discussion, I consider that the tone the CFMEU adopted in immediately rejecting the proposal outright was unduly defensive and pugnacious. In circumstances where the proposal had been made in the spirit of assisting a bargaining process that had not been without its difficulties, suggesting that Mr Blair could join the AGL Loy Yang bargaining team had a sardonic edge to it and proffering the statement “[b]argaining is not rocket science” was unhelpful.

[133] By a letter dated 3 March 2016, 121 AGL Loy Yang replied. It addressed matters raised in the CFMEU’s 26 February 2016 letter with some alternate suggestions that included it funding the proposed three day summit in the Latrobe Valley and having it facilitated/chaired by a former member of the Australian Industrial Relations Commission, Mr Brian Lacy. Its rationale for suggesting the use of an independent third party to assist with bargaining was also outlined. In a reply letter dated 6 March 2016,122 the CFMEU confirmed the refusal to participate in facilitated bargaining meetings. Its suggestion that AGL Loy Yang include Mr Blair or Mr Lacy as part of its bargaining team to assist their bargaining representatives was unnecessarily sarcastic and, in all the circumstances, better left unsaid. There was, however, a preparedness to meet with AGL Loy Yang without facilitation on a range of dates.

[134] By a letter dated 10 March 2016, 123 AGL Loy Yang repeated the invitation and proposal for a series of facilitated bargaining meetings. It expanded on its rationale for the proposal, which included the status of negotiations that had been underway since July 2015, feedback from AGL Loy Yang employees that was supportive of the concept of a summit and an interest in seeing whether a change of format might positively impact on the negotiations. By its letter dated 11 March 2016,124 the CFMEU maintained its and the SBU’s refusal to have facilitated bargaining and outlined its position in relation to some of the issues that had afflicted the negotiations to that time.

[135] No doubt the negotiations until that point in time had been hard work and it was clear both parties held firm views and were significantly invested in the process. The concept put forward by AGL Loy Yang may have represented a different format to what had previously been adopted in bargaining at Loy Yang but in my view it was put forward genuinely, with the aim of progressing negotiations. There was of course no obligation to accept the offer, but if there was something positive to be gained by slapping it down in the manner and tone adopted by the CFMEU, I have difficulty seeing it. Instead, an opportunity was lost.

The CFMEU’s involvement in the nomination by 337 employees of the six individuals as bargaining representatives and their subsequent, ongoing participation in the bargaining process

[136] The appointment in March 2016 of the six bargaining representatives by 337 AGL Loy Yang employees has resulted in them representing over half the workforce, with the remaining employees represented by a mixture of the CFMEU (representing approximately 90), the ETU, the ASU or Professionals Australia.

[137] AGL Loy Yang submitted it is significant that 337 individual employees have at or around the same time decided they no longer wish to be represetned by the CFMEU and that it is inconceivable that this number of nominations would occur without some organisation. To support this assertion, it relies on materials obtained under subpoena during the CFMEU Application for bargaining orders. These materials include:

• An email from Mr Hardy to one of the six bargaining representatives, Mr Clayton Richards, on 25 February 2016 enclosing an ‘Appointment of Bargaining Representative’ form; 125

An email from Mr Richards back to Mr Hardy on 3 March 2016 enclosing 42 ‘Appointment of Bargaining Representative’ forms, appointing him as a bargaining representative; 126and

An email from Mr Hardy on 25 February 2016 127 with the message, “G’day guys, Attached is the form as discussed. Cheers Greg”, to two current members of the SBU (Mr Waanders-Secretary, Loy Yang Mine lodge and Mr Duncan-CFMEU Delegate) and another CFMEU delegate Mr Lloyd Proctor,128 who subsequently was appointed as an individual bargaining representative by 15 AGL Loy Yang Employees.129

[138] AGL Loy Yang submitted that the modus operandi adopted in the appointment of the six bargaining representatives was similar to that employed when Mr Hardy and Mr Walsh were appointed bargaining representatives for sixty individual employees in August 2015. It also submitted that 58 of the 60 AGL Loy Yang employees who nominated Mr Hardy and Mr Walsh to be their bargaining representatives in August 2015 are now amongst the 337 employees who have subsequently nominated the six bargaining representatives.

[139] Also produced under subpoena was an email prepared by Mr Hardy on 21 March 2016 intended for CFMEU members, 130 including the six bargaining representatives. In addition to Mr Proctor, the six bargaining representatives included a further two CFMEU delegates, Mr Clive Wilson and Mr Craig Baldwin.131 This email outlined some further details relating to the appointment of the six bargaining representatives and their subsequent joining of the SBU. AGL Loy Yang submitted the statement of Mr Hardy at the conclusion of the email, “When we stand united, and box smart, we win” does not seem to me to be language that evinces an intention to genuinely try and reach agreement.

[140] AGL Loy Yang notified the CFMEU that it had been advised of the six bargaining representatives and asked it to forward them its letter dated 11 March 2016. In the CFMEU reply, Mr Dyke stated that he did not have contact details for these people. This is inconceivable. The evidence indicates that the CFMEU had details for at least Mr Richards and Mr Proctor, while Mr Wilson and Mr Baldwin were CFMEU delegates. 132

[141] On 17 March 2016, AGL Loy Yang wrote to the CFMEU indicating it wanted to meet with the six (new) bargaining representatives to discuss with them their role in bargaining, listen to their concerns or suggestions they might have. On 18 March 2016, it wrote to the six bargaining representatives themselves, inviting them to a meeting on 24 March 2016. By at least 21 March 2016, it would appear from the email prepared by Mr Hardy that the SBU and six bargaining representatives had accepted Mr Hardy’s proposal that the SBU be expanded to include the six bargaining representatives. Five of the six bargaining representatives confirmed this when they emailed AGL Loy Yang on 23 March 2016 to decline the invitation to meet. 133

[142] Mr Hardy’s proposal that the SBU be expanded unilaterally without input from AGL Loy Yang contradicts the strict view Mr Dyke had expressed about the status of the SBU in October 2015 when he took issue with AGL Loy Yang’s claim it had been meeting with the SBU without the CFMEU being present. 134 When AGL Loy Yang wrote to the six bargaining representatives to repeat its invitation for a meeting on 24 March 2016, it outlined the way in which the SBU had reflected the traditional union coverage at Loy Yang, the CFMEU’s role and its concern that the SBU did not reflect the changed composition of bargaining representatives.135 Again, five of the six bargaining representatives declined a meeting.

[143] While AGL Loy Yang wanted to gain an understanding of the position of the six bargaining representatives, it does not appear that the emergence of the six bargaining representatives caught the CFMEU and other bargaining representatives by surprise. The CFMEU did not seem concerned that 337 of its members had simultaneously decided to appoint six bargaining representatives in its place. Further, the CFMEU did not appear to feel threatened by the potential impact the six bargaining representatives might have on the bargaining dynamic, with the SBU promptly agreeing to a suggestion from Mr Hardy that they be invited to join the SBU. The uniform declining of AGL Loy Yang’s invitations to meet suggests a level of co-ordination and clearly, some of the six bargaining representatives were known quantities for the CFMEU, as a result of being CFMEU delegates (Mr Proctor, Mr Wilson and Mr Baldwin).

[144] Mr Proctor had in fact some earlier involvement in the bargaining round, having emailed Mr Peter Linton of AGL Loy Yang on 30 July 2015, copying in Mr Hardy (then on leave) and Mr Dyke, as follows:

“As indicated, I have received further advice from our senior representatives and must advise that we find your request to attend the “Leader Briefing – Enterprise Agreement 2015” meetings an unreasonable directive. Under no circumstance will any member of the Warehouse Group be attending these meetings…Any attempt to hold a Q & A session in any format with our members on matters ascertaining to the Enterprise Agreement 2015 we feel would constitute a form of negotiation which we have clearly and repeatedly indicated will solely be handled by our senior union representatives, Greg Hardy and Bryan Walsh.” 136

[145] Further, in addition to receiving emails from Mr Hardy in the period leading up to his appointment, Mr Richards seemed well-versed in the bargaining history, stating in his response to the second AGL Loy Yang invitation to meet, “The wants and needs of the collective I represent have not changed since negotiations began.” 137

[146] My Dyke also gave evidence during the CFMEU Application for bargaining orders, that is suggestive of the six bargaining representatives representing non-station based CFMEU members being appointed in accordance with CFMEU advice:

“PN 606
I put it to you that the appointment of the six “independent” bargaining representatives was part of Mr Hardy’s strategy to box smart? Well I don’t know any rep that would say that they would box dumb, so this is – if it is a – sorry, an update to our members, I mean Mr Hardy’s obviously going to put a positive spin on it.

PN 607
As part of Mr Hardy’s plan. Whether it be a good plan or a bad plan, as part of his plan? I don’t know whether it’s part of Greg’s plan. You’ll have to ask Greg that but certainly for a long time, since probably January, employees have been aware that AGL’s tactics have probably been to try and force a workplace determination without bargaining and to do that would require termination of protected action through a number of means. One of them would be harming a third party, one would be causing economic or damage to the economy. We advised employees in January that we expect that if you take industrial action, AGL will lock you out. We also advised employees that we could only probably take action at the station because shutting off the coal supply in the mine would harm a third party, and we further advised the employees that even though we don’t take action in the mine you may well be locked out, even though you’re not taking industrial action personally. So that was common knowledge around the whole site.” 138

[147] There was also what seems to me to be an authentic reaction to the emergence of the six bargaining representatives from Mr Jim Cantwell, who is an AGL Loy Yang employee who appointed one of the six bargaining representatives (Mr Wilson) to be his bargaining representative. 139 On 11 April 2016, Mr Cantwell, posted the following comment in response to an AGL Loy Yang employee communication published on 8 April 2016:

“These new employee bargaining representatives – who are they and which unions do they represent – nobody has introduced me to my representative (CFMEU) I have no idea or do a lot of people above the grass level.” 140

[148] These various examples are suggestive of a scenario in which there are games being played when what would better serve the attainment of an agreement is bargaining in an atmosphere free from intrigue, frustration and rancour.

[149] The CFMEU submitted that Mr Hardy’s evidence rejecting any suggestion that any bargaining representative is not free from the control or improper influence of the CFMEU 141 was unchallenged and ought to be accepted and that AGL Loy Yang’s complaints, even if they can be made out, cannot demonstrate that the CFMEU is not genuinely trying to reach agreement. It placed the AGL Loy Yang complaints no higher than complaints as to the tactics or strategies employed by the CFMEU during bargaining over the terms of a replacement agreement.

[150] In response, AGL Loy Yang submitted that the material upon which it relies regarding the six bargaining representatives had been put before Mr Hardy and he was aware of it. It further submitted that it had referred to Mr Hardy’s involvement in their appointment in its Outline of Submissions dated 31 May 2016. AGL Loy Yang also submitted that when cross-examination of Mr Hardy commenced, he was asked whether he had responded to AGL Loy Yang’s material filed in this proceeding and he answered confirming that to the extent he thought it was important to take issue with anything appearing in AGL Loy Yang’s material, he did so in his second statement, having regard to what he thought was most relevant. 142 Accordingly, AGL Loy Yang relied on the Full Bench decision in Xiu Zhen Huang v Rheem Australia Pty Ltd143 (Xiu) and I set out below some key passages from that decision. They are extensive but from them, a number of principles emerge that have relevance to the determination of the Application:

“[21] The rule in Browne v. Dunn is much misunderstood. Advocates frequently assert that the rule obliges the Commission to accept evidence not challenged in cross-examination or prevents the Commission from making a finding contrary to evidence not challenged in cross-examination. We hasten to add that those remarks do not apply to counsel for the Appellant in this case. In R v. Birks Gleeson CJ, with whom McInerney J agreed, provided a thorough exposition of the rule. The passage is lengthy but it is desirable to set it out in full:

"Since so much was made at the trial of what is often called the rule in Browne v Dunn it is necessary to make some observations upon four matters: first, the nature of the "rule" itself; secondly, its application to criminal trials; thirdly, the remedies that are available in the event of a breach of the rule, and fourthly, the scope for drawing inferences of fact based upon a failure of counsel to cross-examine.

It is accepted as a rule of professional practice in this State that there is a general requirement, subject to various qualifications, that a cross-examiner put to an opponent's witness the matters in respect of which, or by reason of which, it is intended to contradict the witness' evidence. (The rule is discussed, for example, by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16.) The very subject matter of the rule, however, indicates a need for a degree of caution in its formulation; caution which is to be found in the speeches in Browne v Dunn itself. Cross-examination is an art, and the means that may be legitimately employed to cut down the effect of the evidence of a witness or to put a witness or a party upon fair notice of a point are multifarious.

Browne v Dunn was a case in which there was an issue as to whether a document was genuine or a sham. Counsel for the appellant, in the House of Lords, put an argument to the effect that it should have been concluded at first instance that the document was a sham. However, a number of persons who had signed the document as witnesses had been called at the trial and it had never been suggested to them that the document was anything but genuine. The House of Lords regarded the appeal as hopeless and counsel for the respondent was not called upon. Lord Herschell LC said (at 70-71):

"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. ... Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakeably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted."

Lord Halsbury said (at 76-77):

"My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross- examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."

Lord Morris expressed qualified agreement. His Lordship said (at 79):

"My Lords, there is another point upon which I would wish to guard myself, namely, with respect to laying down any hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit. In this case, I am clearly of opinion that the witnesses, having given their testimony, and not having been cross- examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, and with the fact of the retainer having been given, it was impossible for the plaintiff to ask the jury at the trial, and it is impossible for him to ask any legal tribunal, to say that those witnesses are not to be credited. But I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box. I therefore wish it to be understood that I would not concur in ruling that it was necessary, in order to impeach a witness's credit, that you should take him through the story which he had told, giving him notice by the questions that you impeached his credit." (emphasis added)

[22] We interpose to observe that the speeches in Browne v. Dunn recognised a key issue will be whether the witness had notice of what was to be alleged against them. The archetypal circumstance of unfairness is where adverse matters are (later) alleged without them being put to the witness in cross-examination and where the witness had no notice that those allegations would be made. We also note that Lord Morris suggested that a witness' evidence may be so "incredible and romancing" that it can properly be attacked in submissions without there having been any cross examination. Gleeson CJ continued:

It is plain that their Lordships, whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non- observance, including the remedies that are available to deal with a problem so created.
…

[23] Some of the comments extracted relate to directions to be given to a jury sitting as the tribunal of fact. In a hearing before the Commission, the Commission is the tribunal of fact. The comments apply with appropriate adjustment.

[24] In White Industries (Qld) Pty Ltd v. Flower & Hart Goldberg J analysed the requirement that a party or witness be put on notice of a proposed challenge to a witness' evidence, where that challenge is not otherwise apparent to the witness. His Honour noted:

"It is apparent, from the judgment of Lord Herschell that notice of the relevant attack need not necessarily occur in cross-examination so long as it is otherwise clear that it will be made. This proposition was picked up by Hunt J in his extensive analysis of the rule and the cases which had considered it in Allied Pastoral Holdings Pty Ltd v FCT where he said at 623:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn [1894] 6 R 67.

But as Hunt J pointed out (at 630):

In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his witness or to the credit of that witness, and in those circumstances counsel will be able to give his witness the opportunity to deal with that other material in his own evidence in chief. But sometimes quite properly he may not be aware either of the other material or of its relevance; or for quite legitimate tactical reasons he may prefer his opponent to be the first to raise the matter, and then deal with it in re-examination or (if allowed) in his case in reply. But at some stage during the course of the evidence, the witness must be given a proper opportunity to deal with the material to be relied upon for the challenge.

The rule does not apply, in the sense that it is not transgressed, where the witness is on notice that his version is challenged or that an inference may be drawn against him and such notice may be found in the pleadings, in an opening or in the manner in which a case is conducted: Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 at 15."

[25] An appeal against his Honour's decision was dismissed although the Full Court of the Federal Court held that it was unnecessary for his Honour to make findings about the purpose of a particular witness. The Full Court held that those findings had no bearing on the result but proceeded to make some comment on the submission that to make such findings involved a procedure that was basically unfair to the witness and involved a breach of the rule in Browne v. Dunn. That submission was rejected. The Full Court noted:

"As a general rule, before an adverse finding is made against a witness in contradiction of sworn testimony given by that witness, a matter in issue, the subject of that finding, must be put to the witness in cross-examination to enable him or her to give an explanation. However, there can be no need to put such an issue to a witness who has notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness: see Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16; 44 ALR 607; R Cross, Cross on Evidence, 4th Aust ed, Butterworths, Sydney, 1991, para 17445."

[26] A particular consequence of this summary of principle by the Full Court is that there may often be little scope for the operation of the rule in Browne v. Dunn in relation to matters clearly placed in issue in statements or affidavits filed and served before a hearing. Whether there is any scope for the application of the rule in such circumstances will depend upon the particular circumstances and the dictates of fairness in the particular case…

[28] The rule in Browne v. Dunn is fundamentally a rule of fairness in relation to the way in which the fact finding process ought proceed. It should not be applied in some mechanical fashion compelling a particular outcome whenever a witness is not cross-examined on aspects of his or her evidence. As Gleeson CJ in R v Birks notes "the central purpose of the rule [in Browne v. Dunn] is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of a rule in a given case, and to the consequences which may properly flow from its non-observance".” (Citations not reproduced)

[151] From the passages and the cases referred to in Xiu, the following propositions are relevant to determining the Application, having regard to the submissions made on behalf of the parties, emerge:

(a) The central purpose of the rule in Browne v. Dunn is to secure fairness in relation to the way in which the fact finding process ought proceed.

(b) It should not be applied in some mechanical fashion compelling a particular outcome whenever a witness is not cross-examined on aspects of his or her evidence.

(c) A key issue will be whether the witness had notice of what was to be alleged against them.

(d) Notice of the relevant attack need not necessarily occur in cross-examination so long as it is otherwise clear that it will be made.

(e) There may often be little scope for the operation of the rule in relation to matters clearly placed in issue in statements or affidavits filed and served before a hearing.

(f) Whether there is any scope for the application of the rule in such circumstances will depend upon the particular circumstances and the dictates of fairness in the particular case.

(g) In many cases, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his or her witness or to the credit of that witness.

(h) In such circumstances counsel will be able to give his or her witness the
opportunity to deal with that other material in his or her own evidence in chief.

[152] AGL Loy Yang placed allegations regarding Mr Hardy’s involvement in the appointment of the six bargaining representatives at the forefront of its opposition to the application and the granting of a PABO and addressed it in the witness statement of Mr Clinch and its Outline of Submissions dated 31 May 2016, filed and served seven days before the hearing. The CFMEU took the opportunity to file a second statement from Mr Hardy following this but limited his testimony in response to a single statement in which he simply referred to paragraphs [14]-[24] of Mr Clinch’s statement and rejected any suggestion by AGL Loy Yang that any bargaining representative is not free from the control of or improper influence of the CFMEU. This did not address, for example, the allegation Mr Clinch made that Mr Hardy orchestrated the appointment of the newly appointed bargaining representatives. 144 In the circumstances of this case, I do not accept that the evidence of Mr Hardy was unchallenged or that he was not on notice of the allegations AGL Loy Yang intended to level against him. I am also satisfied that Mr Hardy’s evidence in paragraph [7] of his second Statement,145 does nothing more than express his opinion.

[153] Mr Hardy is clearly a central figure in this bargaining round and in the various proceedings it has given rise to, referred to above. His various witness statements have been extensive and the CFMEU has taken the opportunity to file supplementary witness statements on his behalf. He has been present during the various proceedings as a witness and for the purpose of providing instructions. My observation of Mr Hardy as a witness is that if he takes issue with a proposition levelled against him or the CFMEU, he will articulate this assertively and he rarely, if ever, makes concessions.

[154] Correspondence produced indicates Mr Hardy’s involvement in the appointment process at the time the six bargaining representatives were appointed and the email he prepared dated 21 March 2016, suggests he was also central to the proposal that they join the SBU.

[155] In addition to being a central figure, Mr Hardy holds a position of influence. He is the lead CFMEU negotiator with authority to speak on behalf of the CFMEU. The CFMEU would not start bargaining without him and his fellow employees regarded him as influential. Even when on leave in Northern Australia, he was central to pre-bargaining manoeuvrings and was a key strategist once formal bargaining between AGL Loy Yang and the CFMEU began.

[156] I am satisfied the evidence supports a finding that the CFMEU through Mr Hardy and others was involved in the appointment of the six bargaining representatives. On the evidence, there is no other explanation as to why, in an the unprecedented move, 337 CFMEU members, including 58 who had previously appointed either Mr Hardy or Mr Walsh as bargaining representatives, simultaneously appointed the six bargaining representatives.

[157] The CFMEU relies on Textile, Clothing and Footwear Union of Australia, 146 in which an argument that the union in question was not genuinely trying to reach agreement because it had been involved in putting forward individual bargaining representatives that were not independent of it, was rejected. That case turned, as each case must turn, on its facts and in it, there were no submissions made as to how the genuineness of the relevant union’s bargaining for the agreement (outlined in unchallenged evidence) was or could have been called into question by the action of a group of other bargaining representatives. This decision did not establish that scenarios in which bargaining representatives act in concert can never offend the requirement of s.443(1)(b) of the Act.

[158] Having regard to the evidence in this case and particularly to that which I have outlined above, I am satisfied that the CFMEU was involved in the nomination by 337 employees of the six individuals as bargaining representatives and has been involved in their subsequent, ongoing participation in bargaining. In the context of the bargaining that had taken place, the timing of the appointments and the disruption to bargaining due to the unprecedented and comparatively unwieldy bargaining dynamic they have produced, the CFMEU’s involvement in and with them weighs against a finding that it has been and is, genuinely trying to reach an agreement with AGL Loy Yang.

Conclusion

[159] The CFMEU is the only bargaining representative that has made application for a PABO. The three other union bargaining representatives pursuing an agreement with AGL Loy Yang have been bargaining since July 2015 but neither they nor the six individual bargaining representatives have made application for a PABO.

[160] This is not an application in which the Respondent objects to the making of a PABO based on a single objection. It is an application in which the Respondent cites multiple behaviours it says should lead to a conclusion that I cannot be satisfied that the Applicant, in this case the CFMEU, has been and is genuinely trying to reach agreement. This is a distinguishing feature.

[161] Having considered the legislative history outlined, I regard the introduction of the requirement of genuineness through s.170MP of the Workplace Relations Act, and similarly, the retention of the concept when s.443(1)(b) of the Act was enacted, as significant.

[162] I regard the adoption of the words “has been, and is” in s.443(3)(1)(b) of the Act as requiring the “genuinely trying” to be assessed as a continuum and not in isolation. The phrase “has been, and is” captures two temporal elements and both are to be considered. I sought the views of both parties regarding this. The CFMEU submitted that while the Act does not appear to ascribe any importance to one or the other, they are both important in considering whether the requirements of s.443 of the Act are met. 147 AGL Loy Yang submitted that an Applicant must satisfy both and the entirety of the circumstances of the case must be taken into account.148

[163] In relation to assessing the “has been” component, the challenge for the decision maker is determining what to make of past behaviour of an applicant that is alleged to have lacked the requisite genuineness. An obvious example is the one time pursuit of non-permitted content which is then subsequently abandoned. As was discussed by the Full Bench in Esso, “a range of factual considerations may potentially be relevant in that context” and the diversity of these means that “it is not possible to say that any particular factor or consideration will always be determinative of the result.” 149 Another example is pursuing a PABO application before having explained, discussed or specified claims, which has resulted in a finding that an applicant has not genuinely tried to reach an agreement.150

[164] I accept the proposition of AGL Loy Yang that the word ‘genuinely’ has some work to do and that I should take into account all of the circumstances, including not just the CFMEU’s ultimate object of an agreement but also the genuineness of its conduct.

[165] Notwithstanding the evidence of bargaining activity that has occurred, I am not persuaded the CFMEU satisfies the requirement that it has been and is genuinely trying to reach agreement with AGL Loy Yang. Virtually all of its bargaining has been characterised by periods during which it has pursued an agreement:

● covering employers that had never agreed to or initiated bargaining;
● with material that has only recently been withdrawn, it having been vehemently opposed on the basis it comprised non-permitted matters; and

● while being involved in the appointment of the six bargaining representatives, a highly unusual development that has, of itself, disrupted the bargaining, altered its process and is ongoing.

[166] While this has been occurring, the tone adopted by the CFMEU in correspondence and other exchanges with AGL Loy Yang has tended not to have been conciliatory and has, on occasion, been unhelpfully combative.

[167] There is no hard and fast rule as to when past behaviour is no longer relevant for the purposes of assessing whether an applicant has been, and is, genuinely trying to reach agreement. Nor is it clear what comprises what might be regarded as an acceptable ‘cooling off’ period between the cessation of behaviour that is or may be deemed to be of a nature that offends the notion of genuinely trying to reach agreement and the making of a PABO application. It seems to me that in such circumstances, a period of bargaining in an atmosphere free of behaviour that lacks the requisite genuineness should be achieved before the requirements of s.443(1)(b) of the Act are satisfied, otherwise the words ‘genuinely trying’ would be rendered meaningless. On its facts, I consider the Application to have been prematurely made.

Finding

[168] The Application for a PABO made by the CFMEU on 26 May 2016 is therefore dismissed on the basis that I am not satisfied the CFMEU has been and is genuinely trying to reach agreement with AGL Loy Yang. An order giving effect to this decision is separately issued in PR582301.

DEPUTY PRESIDENT

Appearances:

Mr Y Bakri of Counsel for the Construction, Forestry, Mining and Energy Union.

Mr C O’Grady QC and Mr B Avallone of Counsel for AGL Loy Yang Pty Ltd.

Hearing details:

2016.

Melbourne:

7 June.

10 June.

 1   Exhibit R4, Annexure MJC4, Attachment MC-40.

 2   Exhibit A1 at [20].

 3   Ibid at [21].

 4   Ibid.

 5   Ibid at [22].

 6   Ibid at [25], Annexure GH9.

 7   Ibid, Annexure GH10.

 8   Ibid at [22].

 9   Ibid, Annexure GH14.

 10   Exhibit R4, Annexure MJC4 at [28].

 11   Exhibit A1, Annexure GH16.

 12   Ibid at [31].

 13   Ibid, Annexure GH24.

 14   Ibid at [33].

 15   Exhibit R4, Annexure MJC4 at [29] and attachment MC-7.

 16   Exhibit R4, Annexure MJC4 at [32] and attachment MC-9.

 17   Exhibit A1, Annexures GH27 and GH28.

 18   Exhibit A1 at [45].

 19   Exhibit R4, Annexure MJC 4 at [40].

 20   Ibid, Annexures GH29, GH30 and GH31.

 21   Exhibit R4, Annexure MJC 4 at [33] and attachment MC-11.

 22   Ibid.

 23   Exhibit A1 at [40], Annexure GH33.

 24   Ibid and Exhibit A1 at [45] for details of positions held.

 25   Ibid, Annexure GH 36.

 26   Ibid, Annexure GH 38.

 27   Ibid at [45].

 28   Ibid, Annexure GH37.

 29   Exhibit A1 at [48], Annexures GH42 and GH43.

 30   Ibid at [49] – [71].

 31   Ibid at [48], [72].

 32   Ibid at Annexure GH 42.

 33   Ibid, Annexure GH 58.

 34   Ibid, Annexure GH 76.

 35   Ibid, Annexure GH 77 – see Clause 38.

 36   Ibid at [72].

 37   Ibid, Annexure GH 88.

 38   Ibid – see Clauses 26.2, 26.10 and 64.4.5.

 39   Exhibit R1, Annexure RMJ5 – Transcript PN 670-732.

 40   Exhibit R1, Annexure GH126.

 41   Ibid, Annexures GH 127, GH 130 and GH 132.

 42   Exhibit A2 at [6], Annexure GH136.

 43   Transcript PN 915.

 44   Exhibit A1, Annexures GH 89, GH 90 and GH 92-95.

 45   Exhibit R4, Annexure MJC 4 at [102] and attachment MC-35.

 46   Ibid, Annexure MJC 4 at [104].

 47   Fair Work Regulations 2009, Regulation 2.06, Appointment of bargaining representatives – independence.

 48   Exhibit R4 at [19] and [23] and Annexures MJC 10 and MJC 13.

 49   CFMEU v AGL Loy Yang Pty Ltd T/A AGL Loy Yang [2016] FWC 3376.

 50   See application B2016/384.

 51   Exhibit A1, Annexure GH88.

 52   CFMEU v AGL Loy Yang Pty Ltd T/A AGL Loy Yang [2016] FWCFB 2878 and PR 580142.

 53   Fair Work Act 2009 (Cth), s.437(3)(b).

 54   Ibid, s.440(b).

 55   Ibid, s.438(1).

 56   Ibid, s.440.

 57   Ibid, s.443(1)(a).

 58   Ibid, s.443(1)(b).

 59   Respondent’s Outline of Submissions dated 31 May 2016, at [15] and [17]-[28].

 60   Exhibit A2 at [7].

 61   AGL Loy Yang relies on the Macquarie Dictionary (6th edition) and Oxford Dictionary definitions of “specify” in this regard.

 62   (1987) 163 CLR 140 at 149.

 63   Citing Cross on Evidence at [1175].

 64   Citing Cross on Evidence at [7295].

 65   Exhibit A2 at [7].

 66   Fair Work Act 2009 (Cth), section 178A(2).

 67   Ibid, Sections 512 and 513.

 68   Ibid, Section 508.

 69   Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530, Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 and Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371.

 70   [2014] FWCFB 1070.

 71   (1985) 64 ALR 215.

 72   Print M6777 [1995] AIRC 2622.

 73   Print P1442 [1997] AIRC 485.

 74   Print T2638 [2000] AIRC 488.

 75   PR903156 [2001] AIRC 320.

 76   PR951366 [2004] AIRC 838.

 77   PR964828 [2005] AIRC 968.

 78   (1985) 64 ALR 215.

 79   Transcript PN 998-1001.

 80   [2015] FWCFB 210 at [69].

 81   Applicant’s Outline of Closing submissions at [22].

 82   Respondent’s Outline of Submissions dated 31 May 2016 at [33].

 83   [2015] FWCFB 210 at [18].

 84   [2011] FWA 2465.

 85   [2015] FWCFB 379 at [48]-[50].

 86   Applicant’s Outline of Submissions dated 9 June 2016 at [32]-[33].

 87   [2010] FWAFB 9963.

 88   [2009] FWAFB 368; (2009) 189 IR 407.

 89   [2015] FWCFB 210.

 90   Oxford English dictionary definition.

 91   Macquarie dictionary definition.

 92   (2012) 218 IR 454 at [467]-[468].

 93   Respondent’s Final Outline of Submissions dated 10 June 2016 at [54]–[63].

 94   Tam Anh Bui v Minister for Immigration and Multicultural Affairs [1998] FCA 353; (1998) 52 ALD 536 at 542.4; Amalgamated Wireless (A/sia) Ltd v Philpott (1961) 110 CLR 617 at 624; Pearce and Geddes, Statutory Interpretation in Australia 8th Edition, para 3.33.

 95   Respondent’s Final Outline of Submissions dated 10 June 2016, at [72].

 96   Exhibit R4, Annexure MJC 10, attachment AGL-7.

 97   Respondent’s Final Submissions dated 9 June 2016 at [70].

 98   [2011] FWA 2465.

 99   Exhibit A1, Annexure GH 36.

 100   Exhibit R4, Annexure MJC 8 at Transcript PN 144-145 and PN 152.

 101   Exhibit R4, Annexure MJC 4 at [40].

 102   Exhibit A1, Annexure GH 58.

 103   Exhibit R4, Annexure MJC 5 at [27] and attachment GD 29.

 104   Construction, Forestry, Mining and Energy Union v AGL Loy Yang Ltd T/A AGL Loy Yang [2016] FWCFB 2878.

 105   Esso Australia Pty Ltd v AMWU [2015] FWCFB 210 at [59].

 106   Exhibit A1, Annexures GH 42 and GH 43.

 107   Exhibit A1, Annexures GH 7 and GH 13

 108   Exhibit R4, Annexure MJC 4 at [83] and attachment MC-26.

 109   Exhibit R4, Annexure MJC 4 at [84] and attachment MC-27.

 110   Exhibit A1, Annexures GH 79-81.

 111   Ibid at Annexure GH 88, clauses 26.2, 26.10 and 64.4.5.

 112   Exhibit R4, Annexure MJC 4 at [93]-[94] and attachment MC-33.

 113   Respondent’s Final Submissions dated 9 June 2016 at [82]-[83].

 114   Exhibit R1, Annexure RMJ5, PN 721-724.

 115   Exhibit R4, Annexure MJC 4 at [94].

 116   Exhibit A1, Annexure GH 127.

 117   Ibid at Annexure GH 130.

 118   Ibid at Annexure GH 132 and Transcript PN 908-915.

 119   Ibid at Annexure GH 89.

 120   Ibid at Annexure GH 90.

 121   Ibid at Annexure GH92.

 122   Ibid at Annexure GH93.

 123   Ibid at Annexure GH94.

 124   Ibid at Annexure GH 95.

 125   Exhibit R4, Annexure MJC 10, AGL 4.

 126   Exhibit R4, Annexure MJC 10, AGL 6.

 127   Exhibit R4, Annexure MJC 10, AGL 5.

 128   Exhibit R4, Annexure MJC 5, paragraph 7 and attachment GD 7.

 129   Exhibit R4, Annexure MJC 4, attachment MC 35

 130   Exhibit R4, Annexure MJC 10, AGL 7.

 131   Exhibit R4, Annexure MJC 13.

 132   Exhibit R4, Annexure MJC 10, AGL 4 & 6, Exhibit R4, Annexure MJC 5, attachment GD 7 and Exhibit R4, Annexure MJC 13.

 133   Exhibit R4, Annexure MJC 4, attachment MC 39.

 134   Exhibit A1 at Annexure GH 36.

 135   Exhibit R4, Annexure MJC 4, attachment MC 40.

 136   Exhibit R4, Annexure MJC 5, attachment GD 7.

 137   Exhibit R4, Annexure MJC 4, attachment MC 42.

 138   Exhibit R4, Annexure MJC 8.

 139   Exhibit R4, Annexure MJC 4, attachment MC 35.

 140   Exhibit R4, Annexure MJC 4, attachment MC 45.

 141   Exhibit A2 at [7].

 142   Transcript PN 38-40.

 143   Print PR954993.

 144   Exhibit R4 at [19].

 145   Exhibit A2.

 146   [2011] FWA 2465.

 147   Transcript PN 1055.

 148   Transcript PN 1313 and PN 1314.

 149   [2015] FWCFB 210 at [59].

 150   Total Marine Services v MUA (2009) 189 IR 407.

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