| FWC 1995
|FAIR WORK COMMISSION
Fair Work Act 2009
Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch
WorkPac Pty Ltd
DEPUTY PRESIDENT ASBURY
BRISBANE, 7 APRIL 2017
Application for bargaining order – Alleged failure to meet good faith bargaining requirements – Section 228(1)(f) – Alleged capricious or unfair conduct that undermines freedom of association and collective bargaining – Conduct does not breach good faith bargaining requirements – Application for bargaining order dismissed..
BACKGROUND / OVERVIEW
 On 27 March 2017, the Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch (the CFMEU) applied to the Fair Work Commission (the Commission) pursuant to s. 229 of the Fair Work Act 2009 (the Act) for a bargaining order requiring WorkPac Pty Ltd (WorkPac/the Company) to cancel a ballot in relation to a proposed enterprise agreement and meet with the CFMEU and other bargaining representatives to bargain over certain clauses in the proposed agreement. As the ballot subject of the application was initially scheduled to commence on Monday 3 April 2017, the parties were directed to file and serve material urgently and the matter was listed for conference on 31 March 2017 after an earlier date was vacated due to flooding in Brisbane.
 During the conference on 31 March 2017 the Commission was also informed that the commencement of the ballot had been deferred until Monday 10 April due to flooding in areas where the Company’s employees work. Notwithstanding the deferral of the ballot, WorkPac indicated that a further meeting of the bargaining representatives would not alter the position of the parties and that it would not participate in such a meeting unless ordered by the Commission to do so. In those circumstances a hearing of the matter was conducted with the agreement of the parties.
 Both parties sought to be legally represented and permission was granted on the basis that it would allow the matter to be dealt with more efficiently taking into account the complexity and that there were no issues of fairness between the parties. The CFMEU did not lead evidence and relied on a number of assertions, which were not contested by WorkPac. WorkPac tendered a witness statement of Cameron Hockaday, General Manager Operations and Support Services for the WorkPac Group, who was a representative for the Company’s during the enterprise bargaining process. Mr Hockaday was available at the hearing but was not required for cross-examination.
 A number of facts are not in dispute. WorkPac is a large labour provider covering a number of different industries. It has over 3000 employees in the coal industry alone. WorkPac is currently bargaining with employees and the CFMEU for an enterprise agreement (the proposed agreemement) to replace the WorkPac Pty Ltd Mining (Coal) Industry Enterprise Agreement 2012 1 (the current Agreement). The CFMEU has over 200 members covered by the current Agreement and in respect of the bargaining process for the proposed agreement has received in the order of 1,000 appointments to act as a bargaining representative.2
 The current Agreement has a nominal expiry date of 27 June 2016. Negotiations for the proposed agreement commenced in May 2016. At the time this matter was heard, the parties had held 13 bargaining meetings and exchanged some 14 drafts of the proposed agreement. In November 2016 WorkPac put a proposed agreement to a ballot of employees. That proposed agreement was rejected by a majority of the employees who cast a vote. Meetings between the negotiating parties then recommenced after a hiatus owing largely to the Christmas period, with meetings taking place on the following dates:
 On 20 March 2017, WorkPac wrote to the bargaining representatives and forwarded to them draft 14 of the proposed agreement. WorkPac advised in that correspondence that this was the Company’s final offer and that it intended to commence pre-voting requirements to allow the proposed agreement to be put to a ballot of employees.
 The CFMEU wrote to WorkPac on 23 March 2017 stating that it did not believe that WorkPac had met the requirements in s. 228(1)(d) and s. 228(1)(e) of the Act by failing to give the bargaining representatives a proper opportunity to engage with the employer in respect of the classification structure in Schedule 1 of the proposed agreement and seeking undertakings that WorkPac would cancel the ballot and convene a further bargaining meeting or meetings to discuss the classification structure. 3 WorkPac declined to provide the undertakings sought by the CFMEU and the Union made the present application for a bargaining order asserting that WorkPac is in breach of the good faith bargaining requirements in s. 228 of the Act.
 Legislative provisions in relation to bargaining orders relevant to the application in this case are found in Sub-division A of Part 2-4, Division 8 of the Act in the following terms:
228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.
Persons who may apply for a bargaining order
(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.
Timing of applications
(3) The application may only be made at whichever of the following times applies:
(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:
(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or
(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;
(b) otherwise—at any time.
Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.
Prerequisites for making an application
(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:
(a) has concerns that:
(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and
(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.
Non-compliance with notice requirements may be permitted
(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.
230 When the FWC may make a bargaining order
(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a) an application for the order has been made; and
(b) the requirements of this section are met in relation to the agreement; and
(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.
Note: See also section 255A (limitations relating to greenfields agreements).
Agreement to bargain or certain instruments in operation
(2) The FWC must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b) a majority support determination in relation to the agreement is in operation;
(c) a scope order in relation to the agreement is in operation;
(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3) The FWC must in all cases be satisfied:
(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).
231 What a bargaining order must specify
(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:
(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;
(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;
(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;
(d) such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.
(2) The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:
(a) an order excluding a bargaining representative for the agreement from bargaining;
(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;
(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);
(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).
(3) The regulations may:
(a) specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and
(b) provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.
 It is not in dispute that the CFMEU is a bargaining representative for the proposed agreement and competent to make an application under s. 229(1) of the Act. With respect to s. 229(3) the current Agreement has a nominal expiry date of 27 June 2016 and no issue of timing of the application for a bargaining order arises. WorkPac did not take issue with the CFMEU’s contention that it held concerns about whether the good faith bargaining requirements were met and had, for the purpose of s. 229(4)(b), sent a letter dated 23 March 2017 to WorkPac, setting out those concerns. WorkPac did take issue with whether all of the concerns articulated by the CFMEU in the application for bargaining orders had been advised in the letter of 23 March and whether the alleged conduct in relation to the casual conversion clause – which was not mentioned in that letter – could be relied on by the CFMEU as a basis for the orders sought.
 It was also not in issue that the CFMEU had given WorkPac sufficient time to respond to the concerns set out in its letter for the purposes of s. 229(4)(c), or that the CFMEU considered the response provided by WorkPac not to be appropriate for the purpose of s. 229(4)(d). Further, it was not in issue that WorkPac has agreed to bargain as provided in s. 230(2) of the Act. The CFMEU has not put in issue whether bargaining is proceeding efficiently or fairly as provided in s. 230(3)(b). The issue in dispute is whether the Commission can be satisfied that WorkPac has not met or is not meeting the good faith bargaining requirements in s. 228(1) of the Act. In this regard, the CFMEU asserts that WorkPac contravened s. 228(1)(d) by failing to give consideration to the meeting proposals of the CFMEU; engaged in unfair conduct that undermined collective bargaining as described in s. 228(1)(e) by refusing to meet or to adequately discuss important changes WorkPac made to the draft of the proposed agreement; and s. 228(1)(f) through not bargaining in a proper manner after 7 March 2017.
EVIDENCE AND SUBMISSIONS
 The matters relied on by the CFMEU in support of the application for a bargaining order are set out in the application or in exchanges of correspondence appended to the application. In the grounds and reasons set out in the application, the CFMEU states that at the last meeting of bargaining representatives on 7 March 2017, no agreement was reached. On 13 March 2017, WorkPac released a draft agreement entitled version 13, which contained a casual conversion clause and a revised classification structure in Schedule 1. An email accompanying version 13 stated that it was the best overall package that the Company could offer, requested the bargaining representatives to provide a response to the proposed draft by 16 March 2017 and advised that WorkPac would consider responses and provide feedback via an exchange of emails. 4
 On 15 March 2015, the CFMEU responded outlining its concerns that the casual conversion clause and the classification structure in the draft agreement were dramatically changed from previous drafts and had not been the subject of discussions during the bargaining meetings. The CFMEU posed a number of questions about the reasons for the changes and the benefits to employees and requested a further bargaining meeting to be held on 29 March 2017 to discuss the new classification structure and the casual conversion clause. 5 On 17 March 2017, Mr Powell the National Employee Relations Manager for WorkPac, emailed Mr Brodsky of the CFMEU and advised as follows:
“WorkPac, have a clear indication from our many negotiation meetings in QLD and NSW and our 13 Drafts what the CFMEU and Bargaining representatives fixed positions are on all outstanding matters and now have a clear idea of what the company can and cannot agree upon. WorkPac has throughout the lengthy negotiation process shown a genuine movement and flexibility that has been evident in the progression of drafts submitted formally.
WorkPac has maintained from the beginning of the negotiations with all Bargaining Representatives that it will only progress an agreement that allows us to retain our current contracts and therefore provide for a certainty for our Coal Mine Workers on maintaining their current employment opportunities.
WorkPac, after review of the last negotiation meetings and the outcomes, sees no need to meet further.
WorkPac will ensure that it continues to meet its obligations under the Fair Work Act with all Bargaining Reps and eligible employees until an Agreement can be made.” 6
 Draft 14 of the Agreement was circulated on 20 March 2017. WorkPac sent a further email to the CFMEU on 21 March 2017 responding to the questions raised in the CFMEU’s email of 15 March 2017, indicating that he Company did not agree with the assertion that the casual conversion clause had been virtually agreed upon at the last meeting and stating that changes to the classification structure were based on feedback from bargaining representatives and employees to the effect that the previous version was confusing. WorkPac further stated that there had been no dramatic change to the classification structure. 7
 On 23 March 2017, the CFMEU wrote to WorkPac advising that the Union did not believe that WorkPac was meeting the good faith bargaining requirements in s. 228 of the Act and that specifically, WorkPac had failed to accord the bargaining representatives of employees a proper opportunity to engage with the employer in respect of the new classification structure that is Schedule 1 of the proposed agreement. The letter goes on to state that the Schedule is “of central importance” to the bargaining and that WorkPac has peremptorily terminated bargaining in order to avoid negotiating with employee bargaining representatives over the terms of Schedule 1. The letter concludes with a request for confirmation that WorkPac will undertake to cancel the proposed ballot and convene a bargaining meeting or meetings at mutually agreeable times.
 WorkPac responded to that letter (in an undated letter) stating that the changes to Schedule 1 had been made as a result of suggestions from a CFMEU representative at the meeting on 7 March and was directed at expanding existing classifications to improve the career path for trades and critical skill operator employees. It is further stated in WorkPac’s response letter that at the meeting of 7 March WorkPac had advised the employee bargaining representatives that a further draft would be provided and final comments invited before a decision was made about whether a face to face meeting was required. The letter reiterates advice of 20 March 2017 from WorkPac to the effect that draft 14 of the proposed agreement represented its final proposal and states that the Company intends to initiate the access period and has done so. In response to the issues raised in the CFMEU correspondence, the letter states:
● There has been sufficient discussion of the proposed changes to the classification structure and in any event the changes are beneficial to employees and do not result in any disadvantage to any classification of employees. The changes were originally proposed in response to feedback from employee bargaining representatives and …the changes were made in response to a suggestion of the CFMEU at the meeting on 7 March 2017.
● WorkPac has now made its final proposal in this regard, having taken into account feedback both at the meeting on 7 March 2017 and in subsequent correspondence.
● There are other matters (notably wage rates) in relation to which WorkPac and the employee bargaining representatives are a significant distance apart. Irrespective of any further negotiation in relation to the classification structure, it appears that there is very little possibility that agreement on more fundamental issues could be reached.
● In this regard, you have made it clear that you do not support the proposed Enterprise Agreement as is your right. However, it is also our right to place the proposal before our employees.
Given we believe that there has been sufficient discussion of our proposal in relation to the classification structure, and that, in any event, there are other more fundamental issues which appear to be unresolvable as between the bargaining representatives, there would be no utility in WorkPac accepting your request that the ballot commencing on 3 April 2017 not proceed.
 The letter concludes with a refusal to provide the undertakings sought by the CFMEU in relation to the ballot being cancelled and further meetings being held. 8
 The CFMEU tendered Drafts 12 and 13 of the proposed agreement 9 and contended that there were significant differences between the two versions in relation to casual conversion provisions and the classification structure. In relation to casual conversion a requirement that the employee has been employed by the Company for an ongoing period of 12 months has been amended so that the employee is required to have been employed at the same mine site for 12 months. There is also an amendment from a notion that the employee could elect in writing to convert, to an application being required to be made by the employee. In relation to the classification structure, in addition to changes in the wording of classification levels, a requirement has been inserted to that: “Progression through the above classification structure will be by company appointment only.”
 It is submitted that these are significant amendments which the CFMEU would have had a keen interest in discussing further with WorkPac. It is further asserted that a complete draft of the proposed agreement was not provided to bargaining representatives at the meeting on 7 March and they were given only 90 minutes to consider the version that they were given at that meeting. A complete version of the proposed agreement was not given to bargaining representatives until 13 March 2017. However, it was not contended by the CFMEU that the terms of the casual conversion clause had been agreed at the meeting of 7 March 2017.
 It was submitted that when the changes are analysed, they are important and substantial issues that deserved more than a written exchange over a three day time frame. According to the CFMEU, the changes deserved a meeting. The CFMEU also pointed to the language of the communications from WorkPac and contended that it did not indicate a preparedness to negotiate and that WorkPac’s mind was closed off on 7 or 13 March.
 The CFMEU asserts that in refusing to meet as requested by the CFMEU, WorkPac did not meet the good faith bargaining requirement in s. 228(1)(d) by failing to give genuine consideration to a proposal of the CFMEU and to give reasons for its response. The CFMEU also submitted that WorkPac did not meet the good faith bargaining requirement in s. 228(1)(e) and engaged in unfair conduct by refusing to provide an adequate opportunity for discussion of important changes to the proposal the Company was making. That unfair conduct undermined collective bargaining because of the denial of an opportunity for discussion, which carries with it the possibility of at very least, narrowing the areas of disagreement through a face to face meeting, thereby improving the collective bargaining process. Further, the CFMEU contends that WorkPac has not met the good faith bargaining requirement in s. 228(1)(f) because the Company did not bargain in a proper manner after 7 March 2017.
 The CFMU submitted that the circumstances which would allow the Commission to make a bargaining order are enlivened and the Commission should exercise discretion to make the relevant order. The Union seeks two further meetings and submits that a one week delay would be sufficient to enable those meetings to occur.
 Mr Hockaday’s evidence traversed the history of negotiations for the proposed agreement. In relation to the classification structure, Mr Hockaday said that at a meeting on 16 February 2017 WorkPac had proposed additional classifications for trades and critical skills roles to differentiate them from the rate for a “truck operator”. This change had been intended to provide a more defined career path and modest additional pay increases within existing skill bands to recognise the different skills of those positions. At the last meeting on 7 March 2017, one of the CFMEU bargaining representatives suggested that the change to the classification structure may be confusing for employees and proposed new classification levels for insertion into the next draft. This change was agreed and recorded as an action item in the minutes of the meeting.
 Mr Hockaday also said that although there was discussion about the casual conversion clause, the majority of the discussions at the meeting on 7 March concerned pay rates. Mr Hockaday confirmed that employee bargaining representatives were told that the next draft of the proposed agreement provided by WorkPac would be its best and final offer and that the Company would “leave nothing in the drawer”. The CFMEU maintained that the rates it proposed as a claim at the meeting were its final position and Company representatives stated that the business could not pay rates that were more than its income. A break of one and a-half hours was taken at which the Company considered the pay rates sought by the CFMEU. After the break, Mr Hockaday informed the employee bargaining representatives that its claim represented an additional $30 million cost to WorkPac and that even if only a third of employees took up permanent employment, this would represent an additional $10 million cost, excluding additional statutory costs.
 Employee representatives were also told that the next draft of the proposed agreement would contain a revised version of the casual conversion clause because the Company’s position was that further changes were needed to make the clause workable and to avoid disputation. Company representatives agreed to a request that CFMEU bargaining representatives be allowed to review the clause as a standalone item rather than in the body of the next draft and said it would be circulated as a separate attachment.
 At the conclusion of the meeting, a representative from the CFMEU asked whether there would be another bargaining meeting or the negotiations would be closed out by an exchange of correspondence. Company representatives indicated that they would circulate the agreed material to all bargaining representatives and then make a decision on whether another meeting was required. Mr Hockaday stated that it was his belief that at the end of the meeting it was clear that WorkPac’s position was that the negotiation had essentially reached a position where the parties had made their best proposals on the key issues and that further negotiation, except to clarify wording, was not likely to be productive. Mr Hockaday tendered the meeting minutes to support his evidence. 10
 Mr Hockaday also tendered the emails appended to the CFMEU’s application and said that version 13 of the proposed agreement was distributed on 13 March 2017 along with the other material that had been discussed at the meeting of 7 March 2017. Version 14 was distributed on 20 March 2017 under cover of an email stating that the proposed agreement was the Company’s final position and that it now intended to move forward to initiate the access period and conduct a ballot. 11 Mr Hockaday said that version 14 of the proposed agreement contained only minor drafting changes which did not affect the substance of the agreement. Mr Hockaday also tendered a flyer distributed by the CFMEU on or around 23 March advising employees to vote against the proposed agreement. Mr Hockaday said that the flyer discusses wage rates and makes no mention of the casual conversion clause or the classification structure in the proposed agreement.
 Mr Hockaday said that at the request of the CFMEU WorkPac agreed to delay the ballot from 3 April to 10 April on the basis of the impending weather event to allow employees to return to work and give the ballot their proper consideration. 12 Mr Hockaday reiterated that WorkPac has made the best offer it is able to make to its employees and has no capacity to accede to the CFMEU’s wage claims. It is clear to WorkPac that the CFMEU bargaining representatives are not prepared to make any change to their proposal in this regard. According to Mr Hockaday, given the strong desire of WorkPac to reach an agreement with employees, the Company sees the only pathway as being to place the proposal directly before employees without the support of the CFMEU bargaining representatives.
 If the proposal is rejected, the Company will have to assess its options going forward. However, given the history of negotiations to date, it seems unlikely that any further discussion (whether before or after the ballot) will bridge the considerable gap between the parties on the key issue of wage rates.
 WorkPac submits that it has not failed to bargain in good faith and that it has met each of the requirements of s. 228(1) of the Act. Any further bargaining could only proceed on the premise that WorkPac was prepared to make concessions. The Commission has no jurisdiction to make the order sought in the application for the following reasons:
● There is no prohibition on WorkPac seeking to have its employees vote on an agreement proposal;
● There is no requirement for WorkPac to seek the agreement of the CFMEU or any other bargaining representative before it conducts a ballot or to reach a mutually agreed impasse;
● The CFMEU had a reasonable opportunity to discuss the latest proposal including the classification structure during the bargaining meeting of 7 March 2017;
● No dramatic changes were made to the proposal and the CFMEU did not make any claims for changes to the classification structure in the meeting but rather focused on wages;
● Any such changes were solely beneficial to employees and as a result of suggestions from a CFMEU bargaining representative; and
● There has been a significant bargaining process with no allegation of any breach of the good faith bargaining obligations.
 This is not a case where WorkPac has put an agreement to vote without notifying the CFMEU that it intended to do so or has failed to notify bargaining representatives that it considers bargaining to be at an end. Rather:
● On 20 March 2017 WorkPac indicated that it had given the bargaining representatives its final position and that it would next move to fulfil the pre-voting requirements of the Act;
● On 21 March 2017 WorkPac sent bargaining representatives correspondence to commence the access period and notify them of the ballot;
● It was not until 23 March 2017 that the CFMEU suggested that there was a failure to meet the good faith bargaining requirements in respect of the new classification structure; and
● Even on 27 March 2017 the CFMEU made inconsistent communications to WorkPac and its employees by insisting on the one hand that the Company had not granted bargaining representatives sufficient time to consider the classification structure while circulating a flyer to employees encouraging a vote against the proposed agreement without mentioning the classification structure.
 WorkPac submits that in the circumstances it was reasonable to close out negotiations by exchange of correspondence. The Company’s conduct in bringing on the ballot and refusing another meeting was not precipitous or in breach of an undertaking. WorkPac also submits that it has not engaged in capricious or unfair conduct or undermining of collective bargaining. While the CFMEU opposes the ballot, the fact that a bargaining representative of employees opposes arrangements which are later implemented is not of itself sufficient to demonstrate that the conduct of WorkPac was capricious or unfair. In the circumstances of this case, the absence of caprice or unfairness is evident given that:
● Before arranging the ballot WorkPac put its proposed new classification structure to employees at the meeting of 7 March 2017 and in draft 13 of the proposed agreement it later circulated and did not fail to disclose negotiating positions or fail to disclose relevant information;
● The new classification structure and the ballot are not fanciful or whimsical and could not be described as capricious and were the subject of transparent announcements to employee bargaining representatives on 7, 20 and 21 March 2017.
● The extensive bargaining from May 2016 to March 2017 followed by the announcement of the ballot demonstrates that WorkPac is actively bargaining with a view to making an agreement.
 Even if the conduct of WorkPac was capricious or unfair, it does not undermine collective bargaining. WorkPac has simply put its proposal to a vote and this action does not affect the ability of the CFMEU to bargain including in relation to pay rates or casual conversion. The flyer of 23 March 2017 demonstrates that the CFMEU is still exercising its rights to advise members to vote against the propose agreement.
 It is also contended that the CFMEU cannot rely on changes that WorkPac made to the casual conversion clause as a basis for seeking bargaining orders in circumstances where the CFMEU has not met the prerequisites to obtain such orders. No allegation in relation to the casual conversion clause was put to WorkPac in the CFMEU’s written notice of 23 March 2017, contrary to s. 229(4)(b) and it is not appropriate to make an order in relation to this matter in all of the circumstances of the case.
 WorkPac also submits that there is no utility in the Commission making the orders sought by the CFMEU in circumstances where:
● WorkPac and the CFMEU have positions on pay rates (and the casual conversion clause) which seem irreconcilable and in particular given the costs to WorkPac associated with the CFMEU’s claims;
● Those matters have already been the subject of exhaustive discussions between the parties; and
● WorkPac has advised the CFMEU on multiple occasions that its position in relation to these matters is final and the best it can offer given capacity to pay.
 Granting bargaining orders would not facilitate the parties to bargain in good faith and could only delay the opportunity for employees to consider WorkPac’s proposal and decide whether to accept it, which can only disadvantage employees. Any orders made would be effectively directed at requiring WorkPac to resume bargaining in relation to matters on which it has put its final position and the only purpose of further meetings would be to see if WorkPac will make concessions. Such outcomes are not required as part of the WorkPac’s good faith bargaining requirements pursuant to s. 228(2) of the Act.
 I do not accept that the CFMEU has failed to give written notice setting out its concerns in relation to the casual conversion clause. While the term “a written notice” in s. 229(4)(b) suggests that the concerns must be set out in a single written notice, there is no warrant to construe the provision in this narrow manner. In the present case, the letter of 23 March 2017 setting out the CFMEU’s concerns for the purpose of s. 229(4)(b) of the Act, did not make reference to the casual conversion clause. However, earlier correspondence from the CFMEU to the Company on 15 March, made it clear that the CFMEU took issue with the changes that it perceived had been made to the casual conversion clause.
 In my view that is sufficient to constitute a written notice to the bargaining representatives setting out the CFMEU’s concerns. If I am wrong on that point, I exercise the discretion in s. 229(5) to consider the application – including with respect to the issue of the casual conversion clause – in any event on the ground that it is appropriate to do so in circumstances where the CFMEU has clearly articulated its concerns in writing in relation to its allegation that WorkPac has not met the good faith bargaining requirements, albeit in two separate pieces of correspondence.
 I turn now to the bargaining requirements that the CFMEU asserts have not been met. In relation to s. 228(1)(d) of the Act, the CFMEU submits that WorkPac has failed to give genuine consideration to its proposals for the proposed agreement and to give reasons for its responses to the proposals. The gravamen of the failure to meet this good faith bargaining requirement is said to be that WorkPac made changes to the draft of the proposed agreement with respect to important and substantial issues, and allowed only a three day time frame for the exchange of written positions when those substantial and important issues should have been the subject of a meeting as requested by the CFMEU. It is contended that in refusing to meet with the CFMEU, WorkPac did not meet the good faith bargaining requirement in s. 228(1)(d) of the Act.
 Whether a party observes or fails to observe good faith bargaining requirements set out in s. 228(1) of the Act is to be determined in light of all of the relevant circumstances. 13 As Justice Flick observed in Endeavour Coal Pty Ltd v Association of Engineers, Scientists and Managers Australia14:
“The outer limits of the conduct which falls within s. 228 is largely dependent upon factual matters that will vary from one situation to another.” 15
 The Decision of the Federal Court in Endeavour Coal considered whether a Full Bench of the Commission had correctly construed the good faith bargaining requirements in s. 228(1) of the Act. In the Decision under consideration, the Full Bench found that the employer had not met the good faith bargaining requirement in s. 228(1)(d) on the basis that the employer had not identified any subject matter it would like to discuss; made no positive proposals; stated that no aspect of the Union’s claims was acceptable after giving an appearance of examining those claims and raising some concerns; and had refused to state its bargaining position. 16 The Full Bench held that where conduct of an employer engaging in the bargaining process is a mere sham or pretence, such as going through the motions of bargaining without any real intention to enter into an agreement, this would be contrary to the good faith bargaining requirements and may involve a failure to give genuine consideration to the proposals of other parties as required by s. 228(1)(d).
 In upholding the Full Bench Decision, Justice Flick stated that a bargaining representative may fall short of the good faith bargaining requirements where it fails to put forward a proposal or counter-proposal or suggested terms that may be acceptable. His Honour also held that an employer is not required to put self-interest to one side, but must genuinely participate in the bargaining process and cannot “adopt the role of a disinterested suitor only rejecting offers and proposals made by other bargaining representatives”. 17
 In the present case I do not accept that WorkPac has failed to meet the good faith bargaining requirement in s. 228(1)(d) of the Act. WorkPac has participated in some 13 bargaining meetings since May 2016 in attempting to make an agreement with employees. The Company has made its position clear in relation to proposals advanced by the CFMEU and has advanced its own proposals in response. I do not accept that the Company has failed to genuinely consider proposals advanced by the CFMEU. To the contrary – at the meeting of 7 March 2017, Company representatives explained the cost implications of those claims and why they could not be accepted. The Company advanced a number of proposals and clearly indicated that the next draft of the proposed agreement it circulated would be its best and final offer and there would be “nothing left in the drawer”. Participants at the meeting accepted that the negotiations may be closed out in writing rather than through a further meeting and this is recorded in the minutes of the meeting.
 The casual conversion clause was not agreed prior to the Company putting forward its best and final offer. This is not a case where having agreed on a critical clause, the Company withdrew its agreement without explanation. Mr Hockadays uncontested evidence, is that the Company explained that the casual conversion clause as it then stood in the draft of the proposed agreement, would involve a cost of some $10 million annually based on the assumption that 1/3 of employees would seek to convert. Mr Hockaday further states that the Company representatives at the meeting advised the employee bargaining representatives that the clause would change in the next draft of the proposed agreement. Mr Hockaday’s evidence is confirmed by the minutes of the meeting of 7 March 2017 appended to his witness statement. It is also the case that the current Agreement does not contain such a clause and any clause allowing for casual conversion is an improvement. Further, it is the case that changes to the classification structure in the final proposal were generally consistent with discussions at earlier meetings.
 I also accept the evidence of Mr Hockaday to the effect that the major topic of discussion between the parties at that meeting was wage rates. This is reflected in the minutes of the meeting and in the flyer circulated by the CFMEU encouraging members to vote against the proposed agreement. It is also the case that WorkPac responded to the questions posed by the CFMEU about the final draft and explained why it did not agree to a further meeting.
 I also consider that it is relevant that in refusing to hold a further meeting, WorkPac was not refusing to discuss a proposal about a substantive term of the agreement that had been advanced by the CFMEU in response to the Company’s final position. No such proposal was put by the CFMEU. This is not a case where the CFMEU having received WorkPac’s best and final offer, put a counter offer which WorkPac refused to consider. Rather, the CFMEU’s complaint is that WorkPac refused to have a meeting to discuss its own final position. In those circumstances, I do not accept that WorkPac has failed to give genuine consideration to a proposal advanced by the CFMEU by simply refusing to meet to discuss its own final offer.
 In all of the circumstances, a refusal by WorkPac to engage in a further meeting after it had circulated its best and final offer was not a failure to give genuine consideration to the proposals of other bargaining representatives. Neither was there a failure to give reasons for the refusal to participate in another meeting. Those reasons were clearly set out in correspondence from the Company to the CFMEU and the employee bargaining representatives. In the circumstances of this case, my view would not be altered even if it was established that the casual conversion clause and the classification structure in the proposed agreement was substantially amended in the final draft that was circulated.
 I do not accept that WorkPac failed to meet the good faith bargaining requirement in s. 228(1)(e). There is no absolute requirement for the agreement of all bargaining representatives to be obtained before a proposed agreement is put to a ballot of employees. WorkPac was transparent in advising of its intention to put its best and final offer to employees. There had been extensive bargaining over 13 meetings and the exchange of 14 drafts of the proposed agreement. There was limited scope for either party to move, it was not unreasonable for WorkPac to refuse to participate in a further meeting in the circumstances that pertained when it decided to put the proposed agreement to a ballot of employees.
 Even if the conduct of WorkPac was capricious (and in my view it was not), it is not conduct that undermines freedom of association or collective bargaining. WorkPac has simply put its best and final position to a vote of employees. The CFMEU is free to encourage employees to reject the proposed agreement and has commenced to do so. Before putting the proposed agreement to employees, WorkPac discussed its terms at a meeting on 7 March 2017 and in writing in the form of a draft circulated after that meeting. There was no failure to disclose any relevant information to the CFMEU or other bargaining representatives. At the point WorkPac decided to put the proposed agreement to a ballot it had bargained extensively and it is clear that WorkPac was trying to make an agreement and continues in its attempts.
 I also accept the evidence of Mr Hockaday that there is a considerable gap between the parties that has persisted over almost twelve months of negotiation and that any order requiring the parties to conduct a further meeting would not result in any likelihood of agreement being reached. Further, I accept that any orders made would effectively be requiring WorkPac to resume bargaining in relation to matters on which it has expressly put its final position in circumstances where the Company has engaged fully in bargaining and has explained to employee bargaining representatives and the CFMEU why it is unable to accept their claims.
 For the reasons set out above, I do not accept that WorkPac has breached s. 228(1)(f). The uncontested evidence of Mr Hockaday is that the Company has engaged in the bargaining, made concessions, given genuine consideration to the proposals of employees and provided considered responses as to those proposals which cannot be agreed to by the Company and why this is the case. In my view, there is a point where an employer having bargained extensively and in good faith, is entitled to draw a line in the sand and declare that no further concessions will be made. The minutes of the meeting on 7 March 2017 evidence that this point has been reached. At that point, the employer can call a halt to bargaining or put its best and final offer forward to employees. In such circumstances, that conduct will not be a failure to meet the good faith bargaining requirements. In my view, this is such a case.
 As Justice Flick observed in Endeavour Coal, s. 228(1) of the Act does not expressly impose upon bargaining representatives any duty or obligation to meet the requirements set out in the section. However, a failure to meet a requirement in s. 228(1) may provide the factual foundation for the Commission to be satisfied that a requirement has not been met and may occasion the making of a bargaining order. The requirements in s. 228(1) do not compel parties to keep negotiating until an agreement is made and orders cannot be directed at that purpose, as evidenced by s. 228(2) of the Act. Where they are triggered, good faith bargaining requirements are directed to the parties approaching bargaining with a genuine objective or intention of concluding an agreement, if possible and to keeping an open mind as to the possibility of reaching agreement. In the circumstances of this case, I am not satisfied that the discretion to making a bargaining order is triggered or that a further meeting or meetings would serve any purpose relevant to meeting the good faith bargaining requirements.
 I do not accept that WorkPac has not met or is not meeting the good faith bargaining requirements in s. 228(1) of the Act or that it is reasonable in all of the circumstances to make a bargaining order.
 The CFMEU’s application for a bargaining order is dismissed. An Order to that effect will issue with this Decision.
Mr R. Reed of Counsel appearing on behalf of the Applicant.
Mr D. Williams of Minter Ellison on behalf of the Respondent.
2 Transcript PN31.
3 Annexure D to Form F32 filed by the CFMEU on 27 March 2017.
4 Annexure A to Form F32 filed by the CFMEU on 27 March 2017.
5 Annexure B to Form F32 filed by the CFMEU on 27 March 2017.
6 Exhibit 4.
7 Annexure C to Form F32 filed by the CFMEU on 27 March 2017.
8 Annexure E to the Form F32 filed by the CFMEU on 27 March 2017.
9 Exhibits 2 and 3 respectively.
10 Exhibit 1 – Statement of Cameron Hockaday – Annexure CH-1.
11 Ibid Annexure CH-6.
12 Ibid Annexure CH-11.
13 Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd  FWAFB 3510.
14  FCA 764.
15 Ibid at .
16  FWAFB 1891.
17 Ibid at 35.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR591711>