[2021] FWC 1182

The attached document replaces the document previously issued with the above code on 5 March 2021.

Ms Cassandra Taylor for the Applicant, Ms Naomi Wootton for the Applicant, and Mr Leigh Howard for the Respondent have been added to the Appearances.

Steven Boughton
Associate to Deputy President Beaumont

Dated 9 March 2021

Fair Work Act 2009
s.229 - Application for a bargaining order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2021/133)

Powertech Pty Ltd T/A Present Group.

1 Introduction

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Union) has made an application for bargaining orders under s 229 of the Fair Work Act 2009 (the Act). The application is directed at Powertech Pty Ltd (Powertech/Respondent) in connection with bargaining for a proposed enterprise agreement to cover its employees who work predominately in Western Australia and Queensland. 1 The application is opposed by Powertech.

[2] Chambers received the application on 3 March 2021. The orders were sought on an urgent basis. Therefore, the application was listed for hearing midday the next day, on Thursday, 4 March 2021. Directions were issued for the filing of witness statements, outline of submissions and any other documentary evidence the parties sought to rely upon. Neither party objected to that course and there was no argument put to me that I should or could as a matter of power, make interim or interlocutory orders in the circumstances of this application.

[3] It should be noted that the urgency of the application was the result of Powertech scheduling a vote of employees to commence at 8.00am on Friday, 5 March 2021, for a new enterprise agreement (a successor agreement to its prior enterprise agreement the Powertech Pty Ltd T/A Present Group EA 2016 (2016 Agreement). This was an outcome the Union sought to divert by its request that the Commission make certain orders as set out at paragraph [50] of this decision.

[4] In making this application, the Union contends that Powertech has failed to meaningfully bargain, in any way, since at least 10 December 2020, and in effect has unilaterally terminated negotiations by proceeding to put a proposed agreement to a vote. The Union has, in addition, pressed multiple other complaints about Powertech’s conduct and has advanced that Powertech has contravened good faith bargaining requirements. Powertech denies the contraventions.

[5] Not long after the conclusion of the hearing I dismissed the application. The reasons for my decision follow. However, in short, I concluded that the Commission was absent jurisdiction to deal with the matter for the reason that the prerequisites for making an application under s 229(4)(b) and (c) had not been met, and I was not satisfied that it was appropriate to consider the application in light of all of the circumstances.

2 Background

[6] The following is an amalgam of the evidence provided by the witnesses. It provides context leading up to the first vote that was undertaken on 29-30 January 2021.

[7] Mr Wendel Moloney, an Organiser for the Union based out of South Brisbane, gave evidence on behalf of the Union regarding the negotiations for a new agreement. He said he had been involved with the negotiations from around October 2021. It was Mr Moloney’s evidence that he had been contacted by members advising him that they had been issued with a Notice of Employee Representational Right (Notice).

[8] Mr Ian Gill, an Organiser for the Union, also gave evidence on the Union’s behalf. His involvement appeared to have commenced at his attendance at a bargaining meeting on 10 December 2021. 2

[9] The employment of the relevant employees is currently covered by the 2016 Agreement, which has a nominal expiry date of 16 January 2021. On 20 October 2020, Powertech issued a Notice. The Union is one of a number of bargaining representatives specifically representing its members at the sites that would be covered by the proposed enterprise agreement.

[10] Mr Moloney gave evidence that during the bargaining negotiations Powertech has been represented by Helen Nadalini (General Manager), Paul Carmignani (Managing Director), Jasmine Sommerfield (HR), Steve Edwards (QLD Manager) and Kaine Weighell (WA Manager). 3

[11] Ms Nadalini has chaired all bargaining meetings, which have been held remotely via Microsoft Teams. 4 Understandably, given Ms Nadalini’s involvement in the bargaining, she provided evidence at hearing on behalf of Powertech.

[12] On 3 November 2020, the first bargaining meeting was held, which according to Mr Moloney, was largely an information session including discussions about good faith bargaining, the proposed meeting schedule and current wage rates. 5

[13] On 10 November 2020, the second bargaining meeting was held, during which the representatives started going through the employees’ log of claims item by item. However, the representatives ran out of time and agreed to finish running through the log of claims at the next meeting.

[14] On 24 November 2020, the third bargaining meeting was held, during which the representatives finished going through the employees’ log of claims. Powertech was said to have advised that the employees’ log of claims needed to be significantly culled. It was purported that Powertech did not offer the employees anything in return.

[15] On 30 November 2020, Powertech provided a written response to the employees’ log of claims.

[16] On 1 December 2020, the fourth bargaining meeting was held, during which Powertech repeated that the employees’ log of claims needed to be significantly culled. The Union said it indicated that there were items that members would be willing to drop, depending on what was offered in return. However, according to the Union, Powertech refused to offer the employees anything in return. Further, it was said that Powertech advised that there would be no further negotiations and that it would instead be putting an agreement out to vote. All other bargaining representatives were said to have advised that they wanted to continue negotiating.

[17] On 28 January 2021, Ms Nadalini sent an email inviting relevant employees to vote on a proposed enterprise agreement. Ms Nadalini’s email specifically stated, ‘Attached is the Enterprise Agreement you are voting in favour of’. 6

[18] On that same day, Mr Moloney emailed Ms Nadalini noting that he was in receipt of her email dated 28 January 2021, from her to ‘Present Group’ employees, dated earlier in the day, at 1510hrs. Mr Moloney informed Ms Nadalini that it was the position of the Union that the wording chosen was misleading and potentially coercive. Mr Maloney continued that the Union would be seeking legal advice regarding this in due course but requested that Powertech halt the voting process and put out a communication to all employees advising of the error. 7

[19] The Union submitted Ms Nadalini did not respond to Mr Moloney. However, it was uncontroversial that Ms Nadalini did reissue the email to employees with amendments. The Union, however, submitted that Ms Nadalini did not explain the amendments or provide a reason for them.

[20] It was Mr Maloney’s evidence that on 29 January 2021, he sent two further emails to Ms Nadalini regarding the vote including concerns that eligible employees had not received the link enabling them to vote. 8 In the email dated 29 January 2021, Mr Maloney wrote:

‘…[T]he Union notes that there has now been conflicting, misleading and potentially coercive instructions to employees by yourself and requests that the process be halted so that employees can be properly advised of their rights in relation to bargaining and voting prior [sic] the process beginning again’. 9

[21] According to the Union, Powertech did not formally notify it that it would be putting an agreement out to vote and did not provide the Union with a copy of the proposed agreement.

[22] On 1 February 2021, Ms Nadalini sent an email to the bargaining representatives stating that a bargaining meeting would be scheduled for 10 February to discuss next steps. In the chain of emails following the 1 February 2021 email, Ms Nadalini noted that Mr Moloney had advised her that he was unavailable on 10 February 2021 and had requested that the meeting be delayed until the third week of February. 10

[23] Ms Nadalini gave evidence that on 2 February 2021, she issued a survey to employees who were to be covered by the agreement. 11 Powertech’s purpose was to ascertain what amendments and changes the employees would like included in the agreement before they were asked to vote again.12 Ms Nadalini confirmed at hearing that approximately one third of the workforce responded.

[24] The Union noted that on 9 February 2021, Mr Gill and Peter Cochrane (Powertech) sent emails to the bargaining representatives stating that they were unavailable on 10 February 2021. Ms Nadalini then sent an email stating that the meeting would be rescheduled for the third week of February.

[25] It was uncontested that on 9 February 2021, the Union made an application for a protected action ballot order (pabo), and on 10 February 2021, Powertech consented to the pabo which was subsequently issued. 13

[26] On 16 February 2021, Mr Gill sent an email to Ms Nadalini asking whether the bargaining meeting had been scheduled as proposed. 14

[27] On 17 February 2021, Ms Nadalini sent an email to Mr Gill stating that the meeting had been scheduled for 22 February 2021 and indicated that the Union’s representatives had not received the invitation due to an issue with Microsoft Teams. 15

[28] It was around 17 February 2021 that Powertech was said to have contacted clients about the ‘pabo’. Ms Nadalini recounted that clients had essentially requested further information about what Powertech was going to do to ensure protected industrial action would not disrupt service delivery to the sites. 16 Ms Nadalini said that because the business had the results of the survey, it was in a position to present a revised proposal to employees.17 Ms Nadalini continued that the business considered that making a second attempt at concluding an agreement would be in the best interests of all concerned, including worried clients.18

[29] On 22 February 2021, Ms Nadalini cancelled the calendar invite for the bargaining meeting with less than two hours’ notice, stating “Meeting Cancelled - Waiting on outcome of PABO”. Mr Moloney said he did not receive this cancellation (or the original invite) as his email had been typed incorrectly. Mr Gill informed Mr Moloney that the meeting was cancelled, and then Mr Moloney sent an email to Ms Nadalini asking for a reason for the cancellation and whether the meeting would be rescheduled. It was said that Ms Nadalini had not responded by the time this application was made.

[30] During the period of 22 and 24 February 2021, Ms Nadalini spoke to all individual employee bargaining representatives about understanding the various issues raised by the teams they represented for bargaining and the items sought for a revised agreement. 19 At hearing, Ms Nadalini confirmed that she did not speak to either Mr Gill or Mr Maloney.

[31] On 24 February 2021, the protected action ballot opened. The ballot is to close at on 23 March 2021.

[32] Having received feedback from the survey, on 25 February 2021, Ms Nadalini sent an email inviting relevant employees to vote on a proposed enterprise agreement. 20

[33] It was Mr Maloney’s evidence that neither he nor Mr Gill were notified by Powertech that an agreement was going to be put to the vote, and they were not provided with copies of the agreement. 21

[34] However, on 26 February 2021, Mr Gill sent Ms Nadalini an email time stamped ‘7:42AM’, in which he had copied and pasted the email she had sent to employees on 25 February 2021 notifying them of the vote. 22 In that email, Mr Gill sought clarification as to the anonymity of the vote. Similarly, on that same date, Mr Maloney sent to Ms Nadalini an email time stamped ‘1:14PM’, asking her to confirm whether the voting process would be anonymous.23

[35] It was Ms Nadalini’s evidence that at the time she received the emails from Mr Maloney and Mr Gill, she was sourcing an independent ballot agent to conduct the ballot. 24 A ballot agent was engaged by Powertech on 26 February 2021.25

[36] The vote was scheduled to take place between 8.00am on Friday, 5 March 2021 until 11.30pm on Saturday, 6 March 2021. Ms Nadalini gave evidence that the vote was to be conducted by an external provider and anonymity of the voters would be maintained. It appeared this had been communicated to the Union.

[37] Evidence was given by Ms Nadalini that Mr Moloney had raised his voice and sworn in one of the bargaining meetings. The bargaining meetings were held via an IT platform and Mr Moloney opted to present himself against a background image of Che Guevara. Mr Moloney acknowledged he had raised his voice on occasion due to frustration with the responses received from Powertech management but could not recall whether he had sworn or not.

[38] Ms Nadalini also gave evidence in response to a perceived criticism that she had not contacted the Union before sending the email on 25 February 2021, notifying of the vote. She said that she did not contact the Union and thought nothing of it as throughout the entire duration of negotiations, the Union were receiving all of the communications from Powertech through their members and delegates. This was, in Ms Nadalini’s view, the accepted practice. Ms Nadalini had premised her view on her experience of sending an email to employees, and thereafter being contacted by the Union to raise questions or issues. 26 Mr Moloney clarified that the Union did not have delegates in the Powertech sites.

3 Legislative framework

[39] Section 230 provides as follows:

(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.

(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;

…

(3) The FWC must in all cases be satisfied:

(a) that:

(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.

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

[40] The good faith bargaining requirements are set out at s 228 of the Act; that section reads:

(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.

4 Submissions of the Union

[41] At the commencement of the hearing the Union identified three key issues.

[42] The first, whether it was appropriate to consider the application when the letter of 2 March 2021, gave Powertech less than 24 hours to respond. It was the Union’s position, albeit they acknowledged that the submission was adventurous, that reasonable notice of its concerns about Powertech’s bargaining conduct had been given. However, if that position was not accepted, said the Union, it was the case nonetheless that the Commission should proceed to hear the application today because of the pending vote to commence on Friday, 5 March 2021.

[43] When clarification was sought in closing argument whether the Union maintained its position that it was appropriate in all the circumstances for the Commission to consider its application notwithstanding the potential non-compliance with ss 229(4)(b) and (c), the Union submitted that the impending vote coupled with the timing of the notification of the vote justified the consideration. Powertech had called the vote last Thursday, the Union had checked with Powertech the anonymity issue on the Friday, Monday was a public holiday and on Tuesday, 2 March 2021, the letter to Powertech voicing concerns was sent.

[44] The second key issue was whether Powertech had contravened good faith bargaining requirements. It was the Union’s view that Ms Nadalini deliberately chose not to contact the representatives of the Union when calling bargaining representatives in the period of 22 to 24 February 2021. This was at a time where Powertech, said the Union, had decided to go to the vote. This constituted a striking failure to recognise the Union’s status as a bargaining representative. And therefore, was conduct that was both capricious and unfair. Unfair, said the Union, because it was discriminatory behaviour (in the more general sense of the word). Further, it undermined freedom of association, because the employees represented by the Union had been denied the opportunity to be effectively represented by the Union representatives.

[45] The third, whether the orders sought were within the power of the Commission to make. The Union submitted that it had appeared that the orders gave the clear impression that the vote should be cancelled. Accepting that s 255 imposed limitations as to the orders that could be made, the Union proceeded on the basis that the orders should be interpreted so as not to be requiring the cancellation of the vote but to delay it until the results of the protected action ballot were known. Seen in this way, to delay the vote would not contravene s 255.

[46] Regarding the legislative criteria that must be satisfied before an order is issued, the Union submitted an application had been made and that the Commission should be satisfied that bargaining has been initiated pursuant to s 230(2) of the Act.

[47] The Union stated that in accordance with s 229(4) of the Act, it gave written notice of its concerns to Powertech by letter sent on 2 March 2021. Further, it provided Powertech a reasonable time within which to respond to those concerns. In the event that it did not, said the Union, it remained appropriate in all of the circumstances for the Commission to consider the application.

[48] Further, it contends in its written submissions, similar to the letter of 2 March 2021, that Powertech’s conduct is contravening the good faith bargaining requirements (see s 230(a)(i)). In this respect, the Union contends that Powertech has not complied with all the good faith bargaining requirements in s 228(1).

[49] However, in those same written submissions the Union identifies purported examples where ss 229(1)(a), (b) and (e) have been breached. The Union notes that the examples of conduct given can also be understood to contravene ss 229(1)(c), (d) and (f).

[50] Consequently, the Union has sought the following orders:

a) the Respondent is not to conduct a vote on a proposed enterprise agreement until after the Applicant’s PAB has been declared by the Australian Electoral Commission.

b) the Respondent is to take all necessary steps to cancel the proposed vote on 5 and 6 March 2021.

c) the Respondent is to take all necessary steps to withdraw its communications inviting employees to vote on 5 and 6 March 2021.

d) the Respondent is required to notify bargaining representatives before it puts an agreement to vote and, at the same time, provide them with a copy of the proposed agreement.

e) the Respondent is required to schedule and attend a bargaining meeting in March 2021.

f) such further or other order as the Commission considers appropriate.

5 Submissions of Powertech

[51] Powertech submits that the application is not valid, and the Commission has no jurisdiction to deal with the application. It observes that whilst it received correspondence from the Union on 2 March 2021 setting out the Union’s concerns for the purpose of s 229(4)(b) of the Act, there were multiple separate and contestable allegations, and the Union did not stipulate a period in which the response was to be provided. Thereafter, the Union proceeded to file the application on 3 March 2021, before Powertech could respond in a meaningful manner.

[52] Powertech observed that the Union carries the onus of establishing the purported contraventions of the good faith bargaining requirements. It was Powertech’s view that the witness statements of the Union were replete with assertion, opinion, and hearsay that was unable to be tested, and that Powertech had not had a meaningful opportunity to consider the 156 page ambush (referring to the application).

[53] However, addressing the alleged contraventions of the good faith bargaining requirements, in short, Powertech submitted that there had been no contraventions of ss 228(1)(b) and (e). Further, Powertech observed that several alleged contraventions were no longer being pressed.

[54] Powertech expressed that the Commission had no power to make the ‘main’ orders sought – Orders 1 and 2.

[55] Turning to Orders 1 and 2 that are set out at paragraph [50] of this decision, Powertech noted that as Powertech had already taken the statutory steps in ss 180 and 181 to commence the voting process, such an order would have the effect of requiring an employee to approve or not approve an enterprise agreement. The Commission, therefore, had no power to make such an order (see s 255(1)(c)). Similarly, Order 2 had the effect of requiring an employee to approve or not approve the enterprise agreement.

[56] Powertech advanced the proposition that a finding of breach in and of itself does not result in an order, because much depends on what is reasonable in all the circumstances. The concept of ‘reasonableness’, submitted Powertech, was one which required a linkage between the conduct and the complaints. Therefore, it was one thing to say you have breached the good faith bargaining requirements because there was a finding of such, but there must be a linkage to the conduct and the order. It was expressed that the order must facilitate bargaining.

[57] Furthermore, and to the extent that the Commission saw fit to grant an order, the applicant for the order must come in good faith, said Powertech. In this respect, Powertech submitted that the Union had not made a single concession over the period of bargaining and Mr Moloney had engaged in intimidating and aggressive conduct.

6 Consideration

[58] As observed, ss 229 and 230 of the Act prescribe the requirements which must be met before a bargaining order can be made.

[59] In the present case, an application for an order has been made and I am satisfied that Powertech has agreed to bargain for a proposed agreement.

[60] The Union is a bargaining representative and is therefore entitled to apply for bargaining orders. Section 229(3) states that if an enterprise agreement applies to employees who will be covered by a proposed enterprise agreement, an application for a bargaining order must be made not more than 90 days before the nominal expiry date of the agreement. The application in this case was made on 3 March 2021, which is not more than 90 days before the expiry date of the 2016 Agreement.

6.1 Notification of concerns and reasonable time for response

[61] Section 229(4) provides that a bargaining representative may only apply for a bargaining order if it has concerns, that one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements. The applicant must have given a written notice to the relevant bargaining representatives setting out those concerns and have given them a reasonable time within which to respond to those concerns (see ss s 229(4)(b) and (c)).
[62] Section 229(5) of the Act somewhat qualifies s 229(4) such that if the Commission considers the application does not comply with ss 229(4)(b) or (c), the Commission may still consider the application if satisfied that it is appropriate in all the circumstances to do so.

[63] The Union states that it gave written notice of its concerns by letter sent on 2 March 2021, and whilst it acknowledges it gave Powertech limited time to respond, the Union said that time was a reasonable amount, having regard to the nature of the Union’s concerns and the pending vote. The Union’s alternative argument was that the Commission should consider the application even if a reasonable time was not given. In support of its alternative argument the Union referred to the decision of the Senior Deputy President in Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd 27 (QTAC).

[64] In QTAC, the Australian Municipal, Administrative, Clerical and Services Union (ASU) sought orders under s 229 in circumstances where its application was filed on 27 July 2009 and a pending ballot of employees from the Queensland Tertiary Admissions Centre Ltd was to occur on the morning of 29 July 2009. The ASU had written to QTAC on 24 July 2009 demanding that the ballot process be abandoned, and a schedule of discussions occur in relation to its log of claims (from May 2009). The Senior Deputy President found that the correspondence did not meet the requirements of s 229(4)(b) or s 229(4)(c) of the Act. However, it was voiced that the circumstances before the ASU reasonably precluded the provision of a written statement of concerns with a timetable for addressing those concerns before making the application. The view was that there was simply insufficient time to act in such a procedurally rich manner when the ballot was pressed. The Senior Deputy President concluded that the ‘circumstances in which compliance with s 229(4)(b) or s 229(4)(c) of the Act depend on the circumstances of each case’. 28

[65] The letter of 2 March 2021 set out that Powertech had failed to meaningfully bargain, in any way, since at least 10 December 2020. This was in circumstances, said the Union, where Powertech had put two agreements to the vote in that period.

[66] The letter of 2 March 2021 essentially comprised of 16 separate complaints levelled at Powertech dating back to 24 November 2020. The conduct complained of was said to have occurred on or around 1 December 2020, 10 December 2020, 29 and 30 January 2021, 10 February 2021, 22 February 2021, and 25 February. 29 Whilst the letter made reference to 16 separate complaints it did not elucidate how those complaints manifested as contraventions of the good faith bargaining requirements outlined in s 228 of the Act. There was a broad statement made ‘[T]he conduct of Powertech set out above contravenes the following good faith bargaining requirements…’. Thereafter, the Union listed the six requirements as set out in s 228 of the Act.

[67] The letter continued, squarely directing Powertech to take certain actions within a confined timeframe or face the inevitable prospect of an application made to the Commission for bargaining orders. It stated:

The Union asks that Powertech:

a) withdraw its email to employees inviting them to vote on a proposed enterprise agreement on 5 and 6 March 2021 by 5pm today;

b) provide an undertaking that it:

i. will postpone the vote proposed for 5 and 6 March 2021 until the Union’s protective action ballot has been determined;

ii. comply with the FW Act’s good faith bargaining requirements, including that it will respond to proposals made by the union and provide it with information in a timely manner;

iii. any future votes will be conducted in an anonymous manner,

by 5pm today; and

c) provide its availability for bargaining meetings in March and April by 5 pm on Friday 5 March 2021.

A failure to provide a satisfactory response to the above will result in the Union making an application to the Fair Work Commission seeking bargaining orders, including an urgent injunction refraining Powertech from conducting the vote proposed to occur on 5 and 6 March 2021…

[68] Powertech submitted that it was not until 2 March 2021 at 9:49am that Ms Taylor of the Union, sent a letter setting out the Union’s concerns for the purposes of s 229(4)(b)). It also observed that there were 16 separate and contestable allegations of contravention specified in the letter and Ms Taylor did not ask for a response by a particular time. Powertech continued, noting that before it could meaningfully respond, the application under s 229 was filed on 3 March 2021. That same application made another set of contestable allegations of contravention.

[69] The letter of 2 March 2021 outlined that Powertech was to take certain actions by 5pm on the day that the letter was issued. In effect, the Union gave Powertech one day to take certain actions. I state, ‘take certain actions’, because in my view, the Union did not give Powertech a ‘reasonable time within which to respond to those concerns’. It was not seeking a ‘response’ as that term is understood in s 229(4).

[70] If I am wrong on the preceding point, I would further observe that one would have to decipher for oneself how the 16 separate assertions constituted a contravention of the particular good faith bargaining requirements under s 228, before being able to address or respond to the ‘concerns’. The letter of 2 March 2021 was abstruse in this respect.

[71] Section 229(4) provides that a bargaining representative may only apply for a bargaining order if the bargaining representative has concerns that a bargaining representative has not met or is not meeting the good faith bargaining requirements. Thereafter, the bargaining representative is to give written notice setting out those concerns. There is a requirement therefore that the ‘concern’ is one that centres on the good faith bargaining requirements having not been met or not currently being met. It follows, in my view, that the recipient of the letter should be able to ascertain the conduct which elucidates or otherwise supports the alleged contravention of the particular good faith bargaining requirement(s) – therefore allowing the recipient to respond.

[72] In addition, Powertech was also tasked with providing its availability for bargaining meetings by 5pm on Friday, 5 March 2021. The Union had circumscribed the timeframe for Powertech to take these certain actions against a backdrop of it making an application for bargaining orders should a satisfactory response not be received. Yet, the application for bargaining orders was made on 3 March 2021, some two days prior to the timeframe the Union had, of its own volition, set for Powertech to provide its availability for meetings.

[73] It is, therefore, plainly open for me to conclude that first, the letter of 2 March 2021 did not constitute the ‘written notice’ as that term is understood in s 229(4)(b) of the Act. Second, the Union had not provided a reasonable time within which to respond to the letter of 2 March 2021. I hesitate to conclude that the Union had not provided a reasonable time within which to respond to ‘those concerns’ for the reasons provided. Nonetheless, there was an abject non-compliance with ss 229(4) (b) and (c).

[74] This, therefore, enlivens s 229(5) of the Act. However, as indicated, I am not satisfied it is appropriate to consider the application.

[75] Section 229(5) provides the Commission with an overall discretion as to whether to consider the application notwithstanding non-compliance with paragraphs (4)(b) or (c) of s 229. However, the exercise of discretion is to be undertaken judicially; that is to say not arbitrarily, capriciously, or so as to frustrate the legislative purpose. Further, the discretion is also confined by the subject matter, legislative context, and purpose. 30

[76] It was not until 2 March 2021, some four days after the notification of the vote (scheduled for 5 and 6 March 2021), that the Union issued Powertech the letter of 2 March 2021. I observe that in that period of four days, was a weekend and a public holiday on Monday, 1 March 2021. I further observe the submission pressed on behalf of the Union that discretion should be exercised to consider the application as it is appropriate in all the circumstances given that the vote is imminent and the period prior to issuing the letter of 2 March 2021 included a weekend and a public holiday.

[77] It was acknowledged by both Union and Powertech that each case will turn on its own set of circumstances. 31 That is the case here.

[78] In QTAC, the reasons for the decision appeared to have been written in haste in light of the urgency of the matter and the need to articulate those reasons expediently. No criticism is levelled. Understandably there is a brevity about the factual matrix such that it proves difficult to conclude that the circumstances of this matter are with distinguishable to those outlined in QTAC.

[79] As noted earlier in this decision, the Senior Deputy President in QTAC, having considered the circumstances before him, concluded that those circumstances before the ASU reasonably precluded the provision of a written statement of concerns with a timetable for addressing those concerns before making the application. This was because, in the Senior Deputy President’s view, there was simply insufficient time to act in such a procedurally rich manner when the ballot was pressed.

[80] However, QTAC does not stand for the proposition, and neither party advanced to the contrary, that when a vote on an enterprise agreement is imminent, s 229(5) will excuse all failures to give the written notice so described in s 229(4)(b) and the time to respond to concerns in s 229(4)(c).

[81] On 26 February 2021, the Union saw fit to raise its concerns with Powertech about the voting method and whether it maintained employee anonymity. At that time, neither Mr Gill nor Mr Maloney expressed concerns that Powertech was not meeting the good faith bargaining requirements. However, clearly the assertions set out in the letter of 2 March 2021 did not develop over the course of 26 February 2021, until the time the letter was sent. The letter of 2 March 2021 referenced alleged conduct that had occurred over a near three to four month period during bargaining. Therefore, as of 26 February 2021, the alleged conduct had purportedly occurred, but no mention was made of it in the emails of Mr Gill and Mr Maloney on 26 February 2021. It was open to the Union at that stage to provide the requisite written notice, yet it failed to do so.

[82] In considering all of the circumstances, I have given careful consideration that the egregious conduct complained of by the Union has occurred over a period of some months. However, the Union did not direct the Commission’s attention to having given written notice setting out these concerns during the entirety of the bargaining period. It was not until some four days after the notification of the vote was issued on 25 February 2021 that the Union communicated its concerns. Arguably, in light of the timing of the conduct complained of, this could have occurred earlier.

[83] This point should not be amplified such that it is read as setting a requirement that written notice in s 229(4)(b) is to be provided contemporaneously as the conduct of concern arises. However, in the circumstances before me, it is, in my view a relevant consideration.

[84] Section 171 of the Act sets out the objects of Part 2-4. I do not intend to repeat those objects in full, save to say that the objects include establishing a framework that enables collective bargaining in good faith and enabling the Commission to facilitate good faith bargaining by the making of bargaining orders. Those objects are set within a legislative scheme that requires this Commission to take into account any objects of the part of this Act, 32 and to perform its functions in a fair and just manner, avoiding unnecessarily technicalities.

[85] I turn to that point of ‘avoiding unnecessarily technicalities’. In QTAC, the Senior Deputy President found that time was prohibitive to acting in a procedurally rich manner. One can perhaps presume that the reference to a ‘procedurally rich manner’ in effect meant to act in compliance with ss 229(4)(b) and (c). I do not consider that time was prohibitive in the case before me now however.

[86] There was sufficient time, prior to 2 March 2021, to have placed Powertech on notice that the Union was concerned that it was not meeting, and/or had not met, good faith bargaining requirements. The articulation of those concerns did not require the hand of an expert draftsperson, but simply written communication that certain conduct was, in the view of the Union, a contravention of a particular good faith bargaining requirement or requirements; there being a proximal connection between the concern expressed and the contravention alleged.

[87] While I have also considered that the dismissal of this application may weigh heavily on the Union and the members it represents, particularly if bargaining was to come to an end,
for the reasons expressed, I am not satisfied that is appropriate in all the circumstances to consider the application.

[88] In arriving at this conclusion, I have also given due consideration to the merits of the alleged contraventions of the good faith bargaining requirements. Although I have determined to dismiss the application for the aforementioned reasons, I consider it important to make some observations regarding some of the grounds advanced by the Union in this respect.

6.2 Not attended and participated in meetings at reasonable times

[89] The Union contends that Powertech has not complied with s 229(1)(a) of the Act. In levelling this contention against Powertech, the Union detailed that Powertech had not attended and participated in meetings at reasonable times by not holding any meeting with bargaining representatives after the initial proposed enterprise agreement was voted down (in January 2021). 33 While a meeting had been scheduled for 10 February 2021, this had been cancelled and rescheduled after bargaining representatives could not attend.34 According to the Union, the rescheduled meeting for 22 February 2021, was cancelled absent explanation.35

[90] The evidence showed that an explanation was provided albeit brief. On 17 February 2021, Ms Nadalini sent an email to several recipients, including Mr Gill and Mr Maloney - advising, ‘Meeting Cancelled – Waiting on outcome of PABO’.

[91] Ms Nadalini explained that by the time the scheduled meeting for 22 February 2021 was cancelled, she was required to prepare ‘all relevant protected action ballot order information for the AEC’. 36 At that time, she was also fielding purported enquiries from employees about the protected action ballot, and in addition, Perth was in lockdown for a week.

[92] If required to make a finding on this point, I am of the view that the Union could not make out its contention that Powertech had contravened the requirement to attend and participate in meetings at reasonable times. The absence of meetings from 10 December 2021, but particularly after the first vote in January 2021, arose from a culmination of factors including the Union’s own unavailability.

6.3 Has not disclosed the terms of the enterprise agreement

[93] According to the Union, Powertech had not disclosed the terms of the enterprise agreement that was voted down in January 2021 and had not provided bargaining representatives with the terms of the enterprise agreement proposed to be voted on – on 5 to 6 March 2021.

[94] It would have been common courtesy for Powertech to advise both Mr Gill and Mr Maloney that it intended to proceed to a second vote, how that vote would occur, and the changes made to the agreement. That it did not however, is not in my view a breach of the good faith bargaining requirements of the Act. That information was not pertinent to the bargaining process nor would it affect the content of the agreement. For this reason, if obliged to have made a finding or arrived at a conclusion in this respect, I am not satisfied that Powertech had failed to disclose information in a timely manner (see s 228(1)(b)). 37 As an aside, I also note my reservation that the disclosure of relevant information under s 228(1)(b) extends to the disclosure of a proposed agreement to be put to the vote. I consider that I am not a lone voice in this respect.

6.4 Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining

[95] Referring to the consent position taken by Powertech in respect of the application for a protected action ballot order, the Union noted that notwithstanding the pending results of the protected action ballot, Powertech had put a new proposed agreement to the vote. This, said the Union, would undermine the efficacy of the process. It is difficult to perceive how consenting to the protected action ballot order precluded Powertech from putting an agreement to the vote, such that to do so would contravene the good faith bargaining requirements.

[96] The Union again raised the issue of the cancelled bargaining meeting on 22 February 2021 and the lack of notification for the reason for the meeting’s cancellation. The Union submitted that Powertech had given the clear impression that a bargaining meeting would be held and yet had put a new proposed agreement to the vote without a word to the Union, and without providing the agreement in advancement. It was the Union’s contention that Powertech’s conduct was inconsistent with the reasonable expectations of the Union organisers that there was to be a negotiation meeting – and as such the Union had been denied an effective role in the process. The Union also noted Powertech’s change in position.

[97] In respect of this contention, I do not consider it contrary to the good faith bargaining requirements to have cancelled the meeting scheduled for 22 February 2021 in the circumstances so presented. I note my reasons above and the evidence provided by Ms Nadalini.

[98] In my view, Powertech are not precluded by the provisions in s 228 from revisiting the agreement previously put to the vote in January 2021 and putting another agreement to the vote with a view to avoiding industrial action. It could be said that the scheme of Part 2-4 anticipates in bargaining such that concessions may be made under the ‘threat’ of impending industrial action. The relevant point however is whether the parties are pursuing that bargaining in good faith.

[99] In his oral submissions, Counsel for the Union, pointed to Ms Nadalini’s conduct of speaking to employee bargaining representatives about the key issues of greatest concern to employees, but not having spoken on the same subject matter to Mr Gill and/or Mr Maloney, during the period of 22 to 24 February 2021. This treatment was, in the Union’s view, a striking failure to recognise the Union’s status as a bargaining representative. The Union’s contention is not without merit, and were I required to make a finding in this respect, I could conclude that the conduct was unfair. Unfair, because as the Union said, it was discriminatory behaviour (in the more general sense of the word). Further, it did, in my view, undermine freedom of association, because the employees represented by the Union had been denied the opportunity to be effectively represented by the Union representatives.

[100] Insofar as Powertech was, according to Mr Gill, purportedly communicating directly with employees, the Union observed that there had not been a protracted period of negotiation justifying the employer engaging in such conduct. However, I have afforded little weight to Mr Gill’s contention noting that it was at best hearsay and was scant on detail. Furthermore, I simply observe that previous Commission decisions have concluded that direct communication with employees, in appropriate circumstances, is not necessarily in breach of the good faith bargaining requirements.

7 Orders sought

[101] It is unnecessary for me to consider whether the making of the orders sought is reasonable in the circumstances or whether the orders sought are inconsistent with s 255 of the Act. However, I would express the view that Orders 1 and 2, were inconsistent with s 255 of for the reasons pressed by Powertech. While the Union sought to amend the ‘offending’ orders during the course of the hearing, it is again unnecessary for me to contend with that application.

8 Conclusion

[102] For the aforementioned reasons, I am satisfied the application should be dismissed. An order 38 to this effect was published on 4 March 2021.

[103] As I have declined to make the orders sort, or any order, the vote currently underway will conclude at 11.30pm on Saturday 6 March 2020 and be counted shortly thereafter. If that vote results in the proposed agreement not being approved, the Union can of course give consideration as to whether it wishes to again pursue bargaining orders by means of another application to the Commission, depending on what further course the bargaining between the parties takes.

DEPUTY PRESIDENT

Appearances:

Mr Christopher Tran for the Applicant;
Ms Naomi Wootton for the Applicant;
Ms Cassandra Taylor for the Applicant;
Mr Simon Rogers for the Respondent;
Mr Leigh Howard for the Respondent.

Hearing details:

2021
Perth (Video hearing)
March 4

Printed by authority of the Commonwealth Government Printer

<PR727504>

 1   Witness Statement of Helen Nadalini (Nadalini Statement) [5].

 2   Witness Statement of Ian Gill (Gill Statement) [2].

 3   Witness Statement of Wendel Moloney (Moloney Statement) [4].

 4   Ibid [5].

 5   Ibid [6].

 6   Ibid Annexure WM-4.

 7   Ibid Annexure WM-5.

 8   Ibid Annexure WM-7.

 9   Ibid.

 10   Ibid Annexure WM-8.

 11   Nadalini Statement [18].

 12   Ibid.

 13   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Powertech Pty Ltd [2021] FWC 673;PR726824.

 14   Maloney Statement Annexure WM-8.

 15   Ibid.

 16   Nadalini Statement [24].

 17   Ibid.

 18   Ibid [25].

 19   Ibid.

 20   Maloney Statement Annexure WM-15; Nadalini Statement [28].

 21   Maloney Statement [32].

 22   Ibid Annexure WM-17.

 23   Ibid Annexure WM-16.

 24   Nadalini Statement [33].

 25   Ibid [34].

 26   Ibid [37].

 27   [2009] FWA 53.

 28   Ibid [26].

 29   Maloney Statement Annexure WM18

 30   Construction, Forestry, Mining and Energy Union v Fair Work Commission [2017] FWCFB 4141 [9].

 31   Construction, Forestry, Mining and Energy Union v Tahmoor Coal Pty Ltd (2010) 195 IR 58.

 32   Fair Work Act 2009 (Cth) s 578.

 33   Moloney Statement [28].

 34   Ibid [22].

 35   Ibid [28]-[30].

 36   Nadalini Statement [21].

 37   Health Services Union v Goodwin Aged Care Services Limited T/A Goodwin [2016] FWC 4411 [40]

 38   PR727505.