(2012) 206 FCR 576
Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers
Court:
 
Federal Court of Australia
Judges:
 
Flick J
Judgment Date:
 
19/7/2012
Jurisdiction:
 
Australia (Commonwealth)
Court File Number:
 
NSD 504 of 2012
Citations:
 
[2012] FCA 764 , (2012) 206 FCR 576 , 217 IR 154 , 290 ALR 326, 128 ALD 571, 64 AILR 101-678, [2013] ALMD 1710
Party Names:
 
Endeavour Coal Pty Ltd, Association of Professional Engineers, Scientists and Managers, Fair Work Australia (FWA)
Legal Representatives:
 
Solicitors for the applicant: Ashurst; Solicitors for the first respondent: Slater & Gordon
Classification:
 
Jump to:
 
Judgment
Headnote
Federal Court of Australia
Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia and Another
[2012] FCA 764
NSD 504 of 2012
20 June
19 July 2012
Sydney
Industrial Law — Enterprise agreements — Collective bargaining — Good faith bargaining requirements — Parties must approach bargaining with the intention of concluding an enterprise agreement if possible — Fair Work Act 2009 (Cth), s 228
Industrial Law — Enterprise agreements — Collective bargaining — Bargaining orders — Permissible scope of order — Cannot have the effect of requiring a party to make a concession — Fair Work Act 2009 (Cth), s 230
Section 228(1) of the Fair Work Act 2009 (Cth) (the Act) set out “good faith bargaining requirements” that a bargaining representative for a proposed enterprise agreement had to meet. The requirements included giving genuine consideration to the proposals of other bargaining representatives for the agreement (para (d)), refraining from capricious or unfair conduct that undermined freedom of association or collective bargaining (para (e)) and recognising and bargaining with the other bargaining representatives for the agreement (para (f)). Pursuant to s 230 of the Act, Fair Work Australia could make a “bargaining order” if, among other things, it were satisfied that one or more of the bargaining representatives for an enterprise agreement had not met, or were not meeting, the good faith bargaining requirements.
Held: (1) To comply with the good faith bargaining requirements set out in s 228, bargaining representatives must genuinely engage in the bargaining process, and have the objective or intention of concluding an enterprise agreement if possible. 34 -35 , 45 , 48
(2) Orders which have the effect of requiring a party to make a concession, or which withdraw the party's ability to engage in “give and take” or bargain on a package basis are beyond the order-making power conferred by s 230. 62 , 64 , 66
Application
RC Kenzie QC and SEJ Prince, for the applicant
I Taylor and D Mahendra, for the first respondent
No appearance by or for the second respondent
Judgment
Cur adv vult
19 July 2012
Flick J
1
On 4 January 2012 a Commissioner of Fair Work Australia found that Endeavour Coal Pty Ltd (Endeavour Coal) had not complied with the “good faith bargaining requirements” imposed on it by s 228 of the Fair Work Act 2009 (Cth) in negotiations with the Association of Professional Engineers, Scientists and Managers, Australia (the Association) for an “enterprise agreement”: Association of Professional Engineers, Scientists and Managers, Australia v Endeavour Coal Pty Ltd [2012] FWA 13.
2
Endeavour Coal appealed that decision. Approval for the appeal was granted pursuant to s 604 of the Fair Work Act. On 22 March 2012 a Full Bench of Fair Work Australia published its decision: Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FWAFB 1891. Relevantly, the Full Bench concluded:
“[33]
In these circumstances it was open to the Commissioner, and appropriate on the evidence, to conclude that the good faith bargaining requirements envisioned by s.228(1)(d) were not being met by the Company in that it was not giving ‘genuine consideration’ to the proposals being put by APESMA. In our view, it would have also been open on the evidence for the Commissioner to conclude that the requirements in s.228(1)(f) were not being met by the Company.”
The Full Bench went on to make orders giving effect to its decision on 23 March 2012. The Full Bench was constituted by Justice Boulton, Senior Deputy President Harrison and Commissioner Deegan. No party submitted that the Court as presently constituted did not have jurisdiction to entertain the application.
3
Endeavour Coal now seeks writs in the nature of certiorari quashing the decision of the Commissioner and the Full Bench. A writ in the nature of prohibition is also sought. Endeavour Coal submits that the reasons for decision of the Full Bench expose jurisdictional error with respect to:
its construction of s 228; and
the Orders made.
4
In very summary form, Endeavour Coal submits that the Full Bench construed s 228(1) as imposing an obligation to “try to conclude an agreement” with the Association. That error, it is said, is exposed by various passages in the reasons for decision of the Full Bench and (in particular) those passages which required Endeavour Coal to (for example) put “proposals of its own”. That erroneous construction of s 228(1), Endeavour Coal submitted, inevitably affects the Orders made. It is further claimed that those Orders contravene s 228(2). In the absence of error in the construction or application of either s 228(1) or s 228(2), it was accepted that no jurisdictional error could be separately made out in respect to the factual findings made by either the Commissioner or the Full Bench. Any error in the factual finding that Endeavour Coal had not met the requirements imposed by s 228(1) — assuming that provision was correctly construed — would be an error within jurisdiction. The effect of those findings and the construction of s 228 adopted by the Commissioner and the Full Bench was that Endeavour Coal had not satisfied the requirements imposed by s 228(1)(e), (1)(d) and (1)(f). It was also accepted that if the decision of the Full Bench was vitiated by jurisdictional error, the decision of the Commissioner should also be set aside.
5
It is concluded that there has been no misconstruction of s 228 by the Full Bench but that Orders 1, 3 and 4 should nevertheless be set aside.
Enterprise agreements — facilitating agreements
6
The role played by s 228 in the process of negotiating and concluding an “enterprise agreement” is fundamental to the correct construction and application of that provision.
7
Section 228 is thus to be construed in the statutory context of the Fair Work Act as a whole and, more specifically, in the context of both Ch 2 and Pt 2-4 of that Act.
8
At the most general level, s 3 of the Fair Work Act sets forth the object of the Act as follows:
“Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a)
providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and
(b)
ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c)
ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d)
assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e)
enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f)
achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g)
acknowledging the special circumstances of small and medium-sized businesses.”
Particular reference was made in submissions to s 3(f).
9
Chapter 2 addresses “Terms and conditions of employment”. Section 41 summarises what it describes as the “core provisions for this Chapter”. This Chapter is said to “[deal] with the terms and conditions of employment of national system employees”. Those main terms and conditions, it notes, come from the “National Employment Standards” (Pt 2-2), “modern awards” (Pt 2-3), “enterprise agreements” (Pt 2-4) and “workplace determinations” (Pt 2-5).
10
The objects of Pt 2-4 — being that Part which deals with “enterprise agreements” — are set forth as follows in s 171:
“Objects of this Part
The objects of this Part are:
(a)
to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b)
to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i)
making bargaining orders; and
(ii)
dealing with disputes where the bargaining representatives request assistance; and
(iii)
ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.”
“Enterprise agreements”, it has been said, “are a significant, if not the predominant, means adopted by the Act for the establishment of terms and conditions of employment”: JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297 at [5] per Jessup J. “Enterprise agreements” enable employees to collectively bargain for conditions better than the “minimum standards” guaranteed by the “National Employment Standards” (s 59) and the “minimum safety net” otherwise provided by “modern awards” (s 134). A “modern award” sets forth (inter alia) the “minimum wages” of an employee covered by that award (s 139(1)(a)). The role of a “modern award” as a “safety net” only is emphasised by the express recognition of “the need to encourage collective bargaining” in s 134(1)(b).
11
There are a number of important divisions in Pt 2-4 for present purposes. Div 2 provides that employers and employees may make “enterprise agreements”. Division 3 deals with bargaining and representation during bargaining and Div 4 provides for the approval of “enterprise agreements” by both employees and Fair Work Australia.
12
Division 8, within Pt 2-4, outlines the role of Fair Work Australia in “facilitating bargaining”. Sections 228 to 240 fall within that Division.
13
In the absence of an order being made by Fair Work Australia, an employer is not compelled to bargain for a potential “enterprise agreement”. They may choose to — but they are not required to.
14
Where such an order is made or where an employer has “agreed to bargain” or has “initiated bargaining”, s 228 sets forth the “good faith bargaining requirements” which a “bargaining representative … must meet” as follows:
“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.
(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.”
15
Provision is made in s 229 for the making by Fair Work Australia of what is described as a “bargaining order”. Section 230 sets forth the circumstances in which a “bargaining order” may be made:
“When FWA may make a bargaining order
Bargaining orders
(1)
FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a)
an application for the order has been made; and
(b)
the requirements of this section are met in relation to the agreement; and
(c)
FWA is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2)
FWA must be satisfied in all cases that one of the following applies:
(a)
the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b)
a majority support determination in relation to the agreement is in operation;
(c)
a scope order in relation to the agreement is in operation;
(d)
all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3)
FWA must in all cases be satisfied:
(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.
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).”
16
Section 231 sets forth what a “bargaining order” must specify. Such an order may specify (inter alia) “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”.
17
In those circumstances where an employer refuses to bargain for a proposed “enterprise agreement”, an application can be made pursuant to s 236 for a “majority support determination”. That section provides as follows:
“Majority support determinations
(1)
A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(2)
The application must specify:
(a)
the employer, or employers, that will be covered by the agreement; and
(b)
the employees who will be covered by the agreement.”
Section 237 provides for the circumstances in which Fair Work Australia “must make a majority support determination”.
18
Relevantly for present purposes, where a “majority support determination” has been made, an application may be made for a “bargaining order”: s 230(2)(b).
Decisions of Fair Work Australia — the factual background
19
It is the provisions of Pt 2-4 which were invoked by the Association before Fair Work Australia.
20
Endeavour Coal, it may be noted by way of factual background, conducts coal mining operations at the Appin Mine in New South Wales. It employs staff with a range of qualifications that perform a variety of different tasks.
21
The Association represents employees in the coal industry who perform professional, administrative, clerical and technical duties. It has been attempting to negotiate an “enterprise agreement” with Endeavour Coal covering approximately 70 employees at the Appin Mine since April 2010.
22
In July 2010 a “majority support determination” was made pursuant to s 237. Between August 2010 and August 2011 meetings were held between representatives of the Association and Endeavour Coal. These meetings were held on the following dates:
(a)
19 August 2010;
(b)
19 September 2010;
(c)
15 October 2010;
(d)
3 November 2010;
(e)
9 December 2010;
(f)
21 January 2011;
(g)
3 March 2011;
(h)
6 April 2011;
(i)
28 April 2011;
(j)
11 May 1011;
(k)
5 July 2011; and
(l)
15 August 2011.
An impasse was apparently reached in mid-2011.
23
On 19 August 2011 the Association applied pursuant to s 229 of the Fair Work Act for a “bargaining order”. The “[g]rounds” upon which Order 1 of the “bargaining order” was sought was set forth in the application in part as follows:
“1.
On 8 July 2010, the supervisory, professional, administrative, clerical and technical employees engaged by Endeavour Coal at Appin mine (collectively known as ‘Staff’) were granted a Majority Support Determination to bargain for an enterprise agreement.
4.
From August 2010, there have been 12 meetings of the bargaining committee.
5.
From the start of negotiations APESMA has asked Endeavour Coal to say what agenda items it would like to discuss including in an enterprise agreement. Endeavour Coal has never identified such subject matter.
7.
Prior to 28 April 2011 representatives of Endeavour Coal proposed no positive proposals but did create the appearance of examining APESMA's proposed enterprise agreement by raising concerns as to some aspects of it during meetings. APESMA and Staff representatives subsequently committed time and resources to amending the APESMA proposed draft enterprise agreement. In good faith changes were made, relying on the statements of the company representatives.
8.
On 28 April 2011 Endeavour Coal provided a document the effect of which was that no term of APESMA's proposed agreement was suitable.
9.
No attempt was made by Endeavour Coal to identify how APESMA's agreement could be improved to make it agreeable.
10.
When the APESMA representatives questioned Endeavour Coal further as to why they had not provided changes that they were seeking to the proposed enterprise agreement as they had done in the past Endeavour Coal representatives replied that they had been ‘disingenuous’ in the past but they were not going to be disingenuous in future. They made clear that Endeavour Coal's position was that it does not wish to have an enterprise agreement for Staff.
11.
In the subsequent bargaining meetings Endeavour Coal representatives have made clear that there was nothing that APESMA could propose that would make Endeavour Coal agree to make any enterprise agreement.
12.
Endeavour Coal continues to put no position proposal or bargaining position as to terms that should be included in an enterprise agreement. It is had not even identified the subject matter that it would be prepared to include in an enterprise agreement.
13.
Whilst in the past Endeavour Coal has created the impression of considering APESMA's proposal it is now clear that either at all times, or at least since 28 April 2011; Endeavour Coal is not prepared to consider any proposal nor put forward any positive proposal, making bargaining impossible.
14.
Endeavour Coal has refused to state its bargaining position despite it being a necessary part of the bargaining process.”
24
It was that application that was initially resolved by Commissioner Roberts who concluded in part as follows:
“[7]
Endeavour was unwilling to enter into enterprise agreement negotiations with APESMA until it was compelled to do so by the issuing of a Majority Support Determination. From the totality of the information available to me arising from these proceedings, that unwillingness has continued in a modified form. The Company has refused to make any substantive contribution to the possible content of an enterprise agreement. …
[9]
I am also satisfied that Endeavour has unreasonably refused to supply APESMA with information which it is reasonable for the Union to possess to adequately bargain with the Company. This is not in accordance with the provisions of subclause 228(1)(b) of the Act.
[11]
In short, I am satisfied that Endeavour is ‘bargaining’ with APESMA with no real intention to negotiate an enterprise agreement. This cannot constitute bargaining in good faith in the terms envisioned by subclause 228(1)(d) of the Act.
[12]
All in all, I am satisfied that the pre-requisites for the making of an order have been established by APESMA. In accordance with subsection 230(3)(a)(i) of the Act I am satisfied that Endeavour has not met the good faith bargaining requirements of the Act.”
Orders were made on 4 January 2012.
25
The Full Bench of Fair Work Australia published its reasons for decision in the appeal on 22 March 2012. Given the emphasis placed by the company on this reasoning in both oral and written submissions, it is prudent to reproduce as follows part of the reasoning of the Full Bench in some detail:
“[26]
The good faith bargaining requirements which bargaining representatives are required to meet are set out in s.228 of the Act. Importantly, these requirements go beyond what might be considered procedural matters such as attending meetings, disclosing relevant information and responding to proposals. Under the good faith bargaining requirements the parties must
give ‘genuine consideration’ to proposals (s.228(1)(d));
refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining (s228(1)(e)); and
recognise and bargain with the other bargaining representatives (s.228(1)(f)).
In effect the parties must take reasonable steps and make reasonable efforts towards making an enterprise agreement. However the good faith bargaining requirements do not require parties to make concessions during bargaining or to reach agreement on terms to be included in an agreement (s.228(2)).
[27]
The objects of the Act and Part 2-4 support an interpretation of s.228 as requiring parties to approach bargaining on the basis that they are to attempt to conclude an enterprise agreement. The object of the Act as set out in s.3 includes reference to: ‘achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations … ’ Good faith bargaining is intended to bring about enterprise agreements and the parties are under an obligation to try and conclude an agreement. The objects of Part 2-4 (which contains s.228) support this view. Subsection 171(b) states that one of the objects of the Part is to: ‘enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through (i) making bargaining orders … ’ In general the legislative scheme might be described as one which seeks to promote agreement making but which does not compel parties to make concessions or to reach agreement. There is nothing inconsistent about encouraging parties to make agreements — and imposing an obligation upon them to try to do so — but at the same time not compelling parties to make concessions in bargaining. An agreement remains what the name implies.
[28]
A key difference in the current legislative scheme to that under the IR Act is the provision for majority support determinations to be made. Once a determination is made, the employer has an obligation to issue a notice of employee representational rights and must meet the good faith bargaining requirements. It cannot continue to refuse to ‘bargain’. The obligation of an employer to bargain upon a majority support determination being made is explained in the Explanatory Memorandum in the following paragraphs:
‘948.
If an employer has not agreed to bargain with its employees, an employee bargaining representative may apply for a majority support determination. If FWA determines that there is majority support for collective bargaining and an employer continues to not participate in bargaining, a bargaining representative for the employees may seek a bargaining order …
976.
There is no penalty for contravening a majority support determination. If FWA determines that there is majority support for collective bargaining and an employer still refuses to bargain, the employee bargaining representative may seek a bargaining order to require the employer to bargain.
“[29]
Where a majority support determination is made, there is an expectation that the employer will recognise the wishes of its employees to bargain collectively for an agreement, and enter into negotiations in an endeavour to reach an agreement. Where this does not happen, a bargaining order may be sought to ensure that the obligation to bargain is fulfilled.
[30]
The main question in the present case concerns whether the Company was meeting its obligation to bargain in good faith. This involved a consideration as to whether there was a real or serious endeavour being made by the Company to negotiate an agreement, having regard to the finding by FWA that a majority of its staff employees want to bargain for an agreement. If the conduct of an employer in 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, then this would be contrary to the good faith bargaining requirements. In particular, such conduct might involve a failure to give genuine consideration to the proposals of other parties (s.228(1)(d)) or it might constitute capricious or unfair conduct that undermines freedom of association or collective bargaining (s.228(1)(e)). Such conduct might also amount to a failure to recognise and ‘bargain’ with other parties (s.228(1)(f)).
[31]
In the ABC case it was said that the determination of whether or not a negotiating party is ‘negotiating in good faith’ may depend upon the conduct of the party when considered as a whole. The Full Bench gave the following example:
‘ … if a party is only participating in negotiations in a formal sense but not bargaining as such then they may not be “negotiating in good faith”. Negotiating in good faith would generally involve approaching negotiations with an open mind and a genuine desire to reach an agreement as opposed to simply adopting a rigid predetermined position and not demonstrating any preparedness to shift.
“[32]
The evidence in the present case is that in many respects the Company complied with the formal requirements of the bargaining process by participating in meetings and responding to proposals put by APESMA. However, on our consideration of the evidence as a whole, it was open to the Commissioner to conclude that the Company's conduct was not such as to demonstrate a genuine endeavour to negotiate an agreement with APESMA. The Company has not previously had a collective agreement covering staff employees at the Mine and it is clear from the evidence that it would prefer not to have such an agreement at this time. The Company participated in the bargaining process but did not make any substantive contribution to the possible content of an enterprise agreement or put proposals of its own.
[33]
In these circumstances it was open to the Commissioner, and appropriate on the evidence, to conclude that the good faith bargaining requirements envisioned by s.228(1)(d) were not being met by the Company in that it was not giving ‘genuine consideration’ to the proposals being put by APESMA. In our view, it would have also been open on the evidence for the Commissioner to conclude that the requirements in s.228(1)(f) were not being met by the Company.
[34]
The Commissioner also found that the Company had not met the good faith bargaining requirements as it refused to supply APESMA with information which it was reasonable for the union to possess in order to adequately bargain with the Company (see s228(1)(b)).
[35]
It is an important element of the bargaining process that parties provide a formal indication of the issues and proposals sought by them in relation to a proposed agreement. The failure to do so might be held to be contrary to the good faith bargaining requirements established by s.228(1)(b) of the Act. In the present case the Company has never put any proposals of its own as to the terms of an enterprise agreement which would be acceptable. The Commissioner took the view that this amounted to an unreasonable refusal by the Company to supply APESMA with information and was contrary to the requirements of s.228(1)(b). Although we have reservations as to whether the reference in s.228(1)(b) to the disclosure of relevant information is intended to cover the negotiating positions and agreement proposals of the parties, we recognise that it is a crucial part of the bargaining process that parties disclose such matters in the negotiations. The failure to do so may be found to be contrary to the good faith bargaining requirements in s.228(1) of the Act, and in particular the requirement to ‘bargain’ (s.228(1)(f)) and to refrain from unfair conduct that undermines collective bargaining (s.228(1)(e)).
[36]
It is a prerequisite to the making of a bargaining order that FWA be satisfied that a party is not meeting the good faith bargaining requirements (see s.230(3)(a)). For all the above reasons, there was an appropriate basis for FWA being satisfied in the circumstances of this matter that the Company was not meeting the good faith bargaining requirements.”
Orders were made on 23 March 2012. Those Orders specified the action that was to be taken by Endeavour Coal and the action not to be taken, including an order that Endeavour Coal was not to “take any further action to unilaterally determine the terms of a new standard contract for Staff”.
A misconstruction of section 228?
26
The jurisdictional error relied upon by Endeavour Coal in the reasoning of the Full Bench should be more fully expressed.
27
The error alleged is a misconstruction of s 228. That misconstruction is variously expressed in its written submissions.
28
One formulation of the alleged misconstruction by the Full Bench is that it is said to have construed s 228 as impermissibly requiring:
Endeavour Coal to “try to conclude an agreement” with the Association; and
an “expectation of finality”.
Endeavour Coal also submits that:
any requirement to negotiate “clearly involves a requirement to make concessions and is contrary to the clear terms of s 228(2)”.
It is further contended that the Full Bench has:
equated “good faith bargaining requirements” with a “refusal to bargain”.
Particular reliance is placed by Endeavour Coal upon the following passages of the Full Bench's reasons, namely:
the reference to s 228 as a provision “requiring parties to approach bargaining on the basis that they are to attempt to conclude an enterprise agreement” (at [27]);
the reference to the fact that once a “majority support determination” has been made an employer “cannot continue to refuse to ‘bargain’” (at [28]);
the reference to there being an “expectation” once a “majority support determination” has been made that an employer will “enter into negotiations in an endeavour to reach an agreement” (at [29]);
the reference to the fact that Endeavour Coal had not made “any substantive contribution to the possible content of an enterprise agreement or put proposals of its own” (at [32]); and
the reference to it being “an important element of the bargaining process that parties provide a formal indication of the issues and proposals sought by them in relation to a proposed agreement” (at [35]).
On the case being advanced on behalf of Endeavour Coal it is erroneous to read into s 228 any requirement to “negotiate” or to “bargain” or to “try to conclude an agreement” or to “put a positive proposal” or to “put its negotiating position” or to “state clearly its position on the making of an agreement”.
29
Endeavour Coal contends that the Association seeks to read requirements into s 228(1) which are simply not there, namely:
an obligation to “bargain” with the intention or desire to conclude an agreement; and
an obligation to require an employer to put a counter proposal or identify terms which it would be prepared to accept.
No such requirements, contends Endeavour Coal, are to be incorporated into s 228.
Good faith bargaining — section 228(1)
30
It is concluded that the “good faith bargaining requirements” imposed by s 228 have a wider operation than that contended for by Endeavour Coal.
31
The outer limits of the conduct which falls within s 228 is largely dependent upon factual matters which will undoubtedly vary from one situation to another. Certainly, it is neither possible nor prudent to attempt any exhaustive statement as to what will constitute compliance with the “good faith bargaining requirements” in the present statutory context. Clearly enough, whatever the reach of s 228(1), any “requirements” imposed by that provision are limited in scope by the matters contained in s 228(2).
32
Section 228(1), it will be noted, does not expressly impose upon a “bargaining representative” any duty or obligation to meet the “requirements” there referred to. A failure, however, to meet one or other of those “requirements” may provide the factual foundation for Fair Work Australia being “satisfied” that a “requirement” has not been “met” and may occasion the making of a “bargaining order”: s 230(3). Once a “majority support determination” has been made, an employer who does not then engage in “bargaining” and meet the requirements of s 228(1) faces the prospect of Fair Work Australia making an order pursuant to s 230.
33
The “requirements” set forth in s 228(1) which a “bargaining representative … must meet” are thus the touchstone — or the condition precedent for the purposes of s 230 — and the touchstone against which the conduct of a “bargaining representative” is to be assessed.
34
It is concluded that once a “majority support determination” has been made, Endeavour Coal must thereafter approach “bargaining” with the Association with a genuine (or “good faith”) objective or intention of concluding an “enterprise agreement” — if possible. What is required is that those participating in the “bargaining” must keep an “open mind” as to the prospect of ultimately reaching agreement: cf Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 at [156] per Einstein J. It is further concluded that a “bargaining representative” may be held to have fallen short of the “requirements” set forth in s 228(1) if there is a failure to put forward for consideration a proposal or a counter-proposal or suggested terms which may be acceptable. The manner in which Endeavour Coal approaches “bargaining” is, subject to s 228(1), largely a matter for it to determine. Section 228(1) does not require a party to “bargain” in any particular manner: cf FMG Pilbara Pty Ltd v Cox (2009) 175 FCR 141 at [38] per Spender, Sundberg and McKerracher JJ. But, within the bounds of the “good faith bargaining requirements” set forth in s 228(1), Endeavour Coal is certainly not required to put self-interest to one side. Indeed, s 228(2) clearly contemplates that no party to the bargaining process is required to do so. Albeit in the context of construing a contractual obligation to act in “good faith”, it has been recognised that “good faith does not require a party to act in the interests of the other party or to subordinate its own legitimate interest to the interests of the other party”: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 at [147] per Hodgson JA. See also: Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd (2010) 41 WAR 318 at [62] per Pullin JA. Newnes JA agreed with Pullin JA.
35
The putting of a proposal or a counter-proposal, or the suggestion of terms for the purpose of “bargaining” or advancing the “bargaining” process, does not irrevocably commit Endeavour Coal to ultimately agree to the proposal or to those terms and limit the “bargaining” solely to matters which have not yet been agreed upon. To impose such a constraint upon the bargaining process would be contrary to s 228(2). But, in the course of “bargaining”, if Endeavour Coal sits “mute” and merely reject proposals or terms which are being advanced for its consideration, it may fail to meet the “requirements” set forth in s 228(1). A party who participates in bargaining that is subject to the requirements of s 228(1) must genuinely participate in the bargaining process; it cannot adopt the role of a disinterested suitor, only rejecting offers and proposals made by other “bargaining representatives”.
36
The Full Bench's reasons do not expose any contrary construction being given to s 228. Although it is frequently acknowledged that reasons for decision of an administrative tribunal and, indeed, reasons for decision of Fair Work Australia (Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [172] per Perram J) are to be read in a commonsense manner and not read with an eye keenly attuned to the “perception of error”, caution needs to be exercised in unquestioningly applying the oft-cited observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. The manner in which the reasons for decision of the Full Bench in the present proceeding are to be approached, it is respectfully considered, should have regard to the judicial status of the presiding Member and the fact that at least one of the other Members was legally qualified: cf Liang at 291 per Kirby J; Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157 per Sheppard J. It must also take into account the degree of assistance provided to the Full Bench by the legal representatives then appearing for the parties and the apparent degree of care with which the reasons have been drafted. Those Counsel now appearing for the parties also appeared before the Full Bench. Different considerations unquestionably apply where administrative decisions are made, for example, in a context where there has been no process akin to a hearing; where the decision-maker is not legally qualified; in an area of mass decision-making; and where the decision-making process is more concerned with factual findings as opposed to the construction of legislative provisions. Nevertheless, even if the decision of the Full Bench is approached with a greater degree of scrutiny than may be warranted for other administrative decisions, it is not considered that the Full Bench's reasons expose any relevant error in the construction and application of s 228. It is further considered that the Full Bench was correct to conclude that it was “open to the Commissioner” to find that the conduct of Endeavour Coal fell short of the requirements imposed by s 228(1).
37
There are a number of reasons for concluding that s 228(1) embraces a requirement to approach “bargaining” in this manner.
38
First, it is considered that so much is required by the natural and ordinary meaning of the term “bargain” or “bargaining”. As noted by Jessup J in JJ Richards & Sons Pty Ltd v Fair Work Australia at [14], the term “bargaining” is not defined in the Fair Work Act.
39
In the absence of a statutory definition, recourse may thus be made to the common understanding of the terms employed. The term “bargain” is defined in the New Shorter Oxford English Dictionary (1993) as follows:
“Discussion between two parties over terms; haggling”
The term “negotiate” is there also defined as follows:
“Communicate or confer (with another or others) for the purpose of arranging some matter by mutual agreement; have a discussion or discussions with a view to some compromise or settlement”
The Macquarie Dictionary (3rd ed, 2002) defines these two terms as follows:
“Bargain … an agreement between parties settling what each shall give and take, or perform and receive, in a transaction
Negotiate … 1. To treat with another or others, as in the preparation of a treaty, or in preliminaries to a business deal … 2. to arrange for or bring about by discussion and settlement of terms: to negotiate a loan
The New Oxford Thesaurus of English (2000) contains the following entry in respect to the term “bargain”:
“Bargain noun … AGREEMENT, arrangement, understanding, deal; contract, pact, compact, covenant, concordat, treaty, entente, accord, concord, protocol, convention; pledge, promise, engagement; transaction, negotiation
verb … HAGGLE, barter, negotiate, discuss terms, hold talks, deal, wheel and deal, trade, traffic”
Illustrative of the process of “bargaining” or “haggling” is the exchange between Brian and the street merchant in Monty Python's Life of Brian.
40
To the extent that it was faintly suggested that “bargaining” stood in contrast to the term “negotiating”, or that “bargaining” involved less in terms of a willingness to move or to disclose a position than “negotiating”, any such distinction is rejected.
41
The term “bargaining” involves the parties to the “bargaining” process engaging in a process of “give and take”. Moreover, “bargaining” in the present legislative context does not stand alone. It is to be construed as part of the phrase “good faith bargaining requirements”: cf Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 401-402 per Brennan CJ, Dawson, Toohey, Gaudron, and McHugh JJ. Even in the absence of the phrase “good faith”, it may still have been concluded that a legislatively imposed requirement to “bargain” would also incorporate a requirement to do so in “good faith”: Brownley v Western Australia (No 1) (1999) 95 FCR 152 at [20] per Lee J. Even so, the express inclusion of the phrase “good faith” serves to reinforce the need for those who approach the bargaining process to do so in a genuine or “good faith” manner.
42
The term “requirements” is also significant. The Macquarie Dictionary contains the following definition:
“requirement … that which is required; a thing demanded or obligatory”
The New Shorter Oxford English Dictionary provides the following definitions:
“Requirement … 1 The action of requiring something; a request … 2 A thing required or needed, a want, a need … 3 Something called for or demanded; a condition which must be complied with”
The New Oxford Thesaurus of English contains the following entry in respect to the term “requirement”:
“ … NEED, wish, demand, want, necessity, essential, necessary/essential item; prerequisite, requisite, precondition, condition, stipulation, specification”
43
Construed in its entirety, the “good faith bargaining requirements” impose conditions which are “called for or demanded”. That which will satisfy those “requirements” will vary from case to case. At the outset of bargaining, one party's “bargaining representative” may consider it in that party's best interests to merely solicit or determine that which is being sought by another party. It may be that what the other party seeks is less than or within the range and scope of what may be on offer. In such cases, bargaining may well be completed quickly — one party seeking less than the other is prepared to give with both parties presumably happy to reach agreement. In other circumstances, one party's representative may again attempt at the outset to merely ascertain what the other party is seeking. The bargaining may proceed by one party's “bargaining representative” repeatedly making requests which may be repeatedly rejected. But at some stage during the process there may come a time when the combined effect of the “good faith bargaining requirements” requires the proffering of a counter-proposal. To progress “bargaining” in compliance with s 228, a participant may be required to disclose what they may be prepared to tentatively accept — even if all that has so far been put to them for consideration has been rejected. A party may be required to advance for consideration a proposal which it may be prepared to accept, albeit a proposal which may well be subject to qualifications or reservations. The point in time when a “bargaining representative” may be required to positively respond to proposals being advanced for its consideration — or to put its own proposals — will vary from case to case. It is both impossible and imprudent to devise a set course which all bargaining must follow. The manner in which one party may approach bargaining may, in some situations, be such that a failure to put a counter-proposal may not be a failure to meet the requirements imposed by s 228(1). The option, however, of one party sitting mute throughout the entire bargaining process — and not “putting” its own proposals — may in some situations fall short of the requirements imposed by s 228(1).
44
Second, the immediate statutory context within Div 8 further reinforces this conclusion. In the absence of a “majority support determination” being made under s 237, an employer need not bargain with employees for the purpose of entering an “enterprise agreement”. But where a “majority support determination” has been made, the “good faith bargaining requirements” will apply. A “bargaining order” may be made in order to enforce those requirements.
45
Within the context of Div 8, it would render nugatory the imposition of “good faith bargaining requirements” and the making of a “bargaining order” if a party to such “bargaining” either:
did not participate with the objective of ultimately reaching agreement, if possible; and
did not participate in the bargaining process in “good faith” and in a genuine process of “give and take”, including (if appropriate) the putting forward of matters which it tentatively may indicate could possibly be included in an “enterprise agreement” if other requirements or conditions can be agreed upon.
This conclusion is supported by the remaining introductory words to s 228(1), namely “ … for a proposed enterprise agreement … ”. It is clear from that phrase that the legislative purpose is to impose upon a party, not merely a requirement to “bargain” in “good faith”, but a requirement to bargain to achieve an objective, if possible, namely an “enterprise agreement”.
46
Third, this conclusion is only reinforced when reference is made to s 171, and subs (b) in particular. An object of Pt 2-4, is “to enable FWA to facilitate good faith bargaining and the making of enterprise agreements”, including through the making of “bargaining orders”. Fair Work Australia's role in “facilitating” bargaining is repeated in the heading to Div 8 of that Part. Once the bargaining requirements in s 228(1) come into play, it would defeat one of the objects of Pt 2-4 — and frustrate “the making of enterprise agreements” — if a party subject to those “requirements” was not required to approach that task with a view to achieving agreement if possible.
47
The statutory objective of Pt 2-4 is comparatively simple. In the absence of a “majority support determination” (s 236), an employer need not enter into any “bargaining” process. But once such a determination has been made, the “good faith bargaining requirements” imposed by s 228 become operative. Even in the absence of a “bargaining order” being made, the “bargaining representatives” are subject to those requirements. Where a “bargaining representative” has concerns, however, as to whether the “good faith bargaining requirements” are being met, an application can be made for a “bargaining order” (s 229(4)). Where such an order is sought, Fair Work Australia retains a discretion as to whether or not a “bargaining order” should be made — s 230(1) expressly providing that Fair Work Australia “may make a bargaining order”. Fair Work Australia may, for instance, consider it more appropriate to allow further bargaining to progress free of any formal order being made — at least for the time being. Much may depend upon the progress of the bargaining prior to the application being made. But where that discretion has been exercised in favour of the making of an order, it would sterilise the statutory objective of Pt 2-4, Div 8, Subdiv A if a party's “bargaining representative” could persist in a course of not “bargaining” with a view to ultimately entering into an “enterprise agreement” — if possible. If an employer could approach its task without such an objective in mind, the “good faith bargaining requirements” imposed by s 228 and a “bargaining order” to enforce those requirements would lack utility.
48
It may nevertheless be accepted that “good faith bargaining” may fail. As the Regulatory Analysis set forth in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) states:
“r.174. Where bargaining representatives cannot agree regarding agreement content, they will be able to jointly walk away (in which case the workplace arrangements already in place would remain in force), take protected industrial action or jointly seek FWA's assistance in determining a settlement.”
The requirements set forth in s 228(1), accordingly, do not require “bargaining” to proceed until an “enterprise agreement” is ultimately reached. The fact that s 228(2) expressly recognises that agreement on terms is not required expressly contemplates the possibility that bargaining may cease without agreement being reached. But “good faith bargaining” does require all “bargaining representatives” to approach their task in “good faith” and with a view to achieving agreement — if possible.
49
This approach to the construction of s 228(1) does not place disproportionate emphasis upon the introductory words to that subsection to the prejudice of s 228(1)(a) to (e). These introductory words place paras (a) to (e) into context and inform the manner in which (for example) a “bargaining representative” is required to “participate” in a meeting (s 228(1)(a)) and is required to bargain “with the other bargaining representatives” (s 228(1)(f)).
50
Nor is this construction of s 228 diminished by other provisions of the Fair Work Act which expressly direct attention to whether a person is “genuinely trying to reach an agreement”: eg, s 443(1)(b). In JJ Richards & Sons Pty Ltd v Fair Work Australia the presiding member of the Court, Jessup J, made reference to the statutory provisions in issue and to s 443 and observed:
“[28]
On my reading of the Act, there is a means by which a party seeking to bring an employer to the bargaining table may achieve that result without taking industrial action. That means is provided in Subdiv A of Div 8. As I have indicated, the legislation eschews any definition of ‘bargaining’, leaving it to FWA itself to specify what might be required in a particular situation. It is true that, under s 230(2), where the employer has not agreed to bargain or initiated bargaining, there must be a majority support determination or a scope order in operation. These requirements, however, may be seen as a conscious choice by the legislature to introduce a degree of organisation into the representation of employees' interests, before an unwilling employer might be made the subject of a bargaining order. The important point is that, although limited to an extent, the legislature has, both specifically and in some detail, turned its mind to the means by which an unwilling employer might, to use the Full Bench's metaphor, be persuaded to come to the bargaining table.”
Tracey J agreed with Jessup J's construction of s 443(1). The reference by Jessup J to the legislative means whereby an “unwilling employer” may be brought to “the bargaining table”, supports a construction of s 228(1) which exposes an “unwilling employer” who has been brought to “the bargaining table” to an obligation to proceed with a view to — if possible — reaching an agreement. The absence of any express requirement imposed upon a party subject to s 228(1) that it should “genuinely try … to reach an agreement” does not, on balance, support the limited construction of that provision now being advanced by Endeavour Coal. The extent to which such a phrase may depart from a requirement of “good faith bargaining” need not be explored. The need to bargain with a view to reaching an agreement if possible, it is considered, sits comfortably with the phrase “good faith bargaining”.
51
Finally, limited support for this construction of the phrase “good faith bargaining requirements” may also be gleaned from decisions concerning contractual obligations to negotiate or to act in good faith. Murphy JA, for example, in Strzelecki Holdings relevantly concluded that an obligation to negotiate in good faith required a party “to make proposals and (if thought appropriate) counterproposals” and “to give serious and genuine consideration to proposals and counterproposals made and received”: Strzelecki Holdings at [94]. Not the least of the differences between decisions as to what constitutes “good faith” in a contractual context as opposed to a statutory context, especially the present statutory context which addresses the competing concerns of employers and employees, is that contracting parties are generally assumed to be on equal terms and free to make whatever bargain they see fit: Brownley v Western Australia (No 1) at [19] per Lee J. Notwithstanding such differences, earlier judicial consideration of the notion of “good faith bargaining” nevertheless continues to provide some guidance.
52
It follows that the Full Bench did not err in rejecting the same submissions now advanced to this Court regarding the extent of the obligations imposed by s 228.
The Orders made — sections 228(2) and 231
53
Separate from its submissions regarding the correct construction of s 228(1), Endeavour Coal also submitted that the Orders made by the Full Bench were beyond the power conferred on Fair Work Australia by reason of either being:
contrary to s 228(2); or
not authorised by ss 230(4) and 231.
Notwithstanding the absence of error in its construction of s 228(1), it is respectfully concluded that the Full Bench erred in its application of s 228 and in the making of Orders 1, 3 and 4.
54
On one view, s 228 is to be construed in its entirety. On that approach, subss (1) and (2) of s 288 are to be construed together and treated as expressing the entirety of the “good faith bargaining requirements”. On another view, s 228(2) is but a qualification of the obligations imposed by s 228(1).
55
On any view, s 228(2) plays an important part in giving content to the obligations imposed. The provision expressly provides that the “good faith bargaining requirements” do not require:
the making of “concessions during bargaining” (s 228(2)(a)); or
reaching consensus “on the terms that are to be included in the agreement” (s 228(2)(b)).
Section 228(2)(a) is thus directed to that stage of the bargaining process when the parties are still bargaining with a view to reaching an agreement — during that stage they need not make “concessions”. Section 228(2)(b) seeks to reinforce the objective of Pt 2-4 stated in s 171(b) — namely, the “facilitation” of the making of “enterprise agreements”. Rather than imposing agreement upon an unwilling participant in the bargaining process — s 228(2)(b) ensures that in bargaining for a proposed “enterprise agreement” there is no “requirement” that a participant needs “to reach agreement on the terms that are to be included in the agreement”. How “agreement on the terms” falls short of an entire “agreement” need not be explored.
56
Notwithstanding the importance of s 228(2), very little guidance was provided by either party as to what constitutes a “concession” for the purposes of s 228(2)(a). It is not a term used elsewhere in the Fair Work Act.
57
The Macquarie Dictionary contains the following definition:
“Concession … the act of conceding or yielding, as a right or privilege, or as a point or fact in an argument”
The New Shorter Oxford Dictionary provides the following definition:
“concession … The action or an act of conceding something asked or required”
The New Oxford Thesaurus of English contains the following entry in respect to the term “concession”:
“ … COMPROMISE, adjustment, modification; allowance, exception; point conceded, point lost, forfeit, something surrendered”
Construed as part of the composite phrase, “concessions during bargaining”, s 228(2)(a) is directed to ensuring that a party subject to the “good faith bargaining requirements” need not concede or yield something which is being asked of him during that bargaining process.
58
Little assistance is to be gleaned from the decision of the Australian Industrial Relations Commission in Asahi Diamond Industrial Australia Pty Ltd v Automotive, Food, Metals and Engineering Union (1995) 59 IR 385. That decision concerned s 170QK of the former Industrial Relations Act 1988 (Cth) (the predecessor to the Workplace Relations Act 1996 (Cth) and the Fair Work Act). Section 170QK provided as follows:
“(1)
To avoid doubt, a reference in subsection 111(2) to a proceeding before the Commission includes a reference to a conciliation proceeding under Part VI or under this Division.
(2)
The Commission may make orders under paragraph 111(1)(t) for the purpose of:
(a)
ensuring that the parties negotiating an agreement under this Part do so in good faith; or
(b)
promoting the efficient conduct of negotiations for such an agreement; or
(c)
otherwise facilitating the making of such an agreement.
In particular, the Commission may, for such a purpose, order a party to take, or refrain from taking, specified action.
(3)
In deciding what orders (if any) to make, the Commission:
(a)
must consider the conduct of each of the parties to the negotiations, in particular, whether the party concerned has:
(i)
agreed to meet at reasonable times proposed by another party; or
(ii)
attended meetings that the party had agreed to attend; or
(iii)
complied with negotiating procedures agreed to by the parties; or
(iv)
capriciously added or withdrawn items for negotiation; or
(v)
disclosed relevant information as appropriate for the purposes of the negotiations; or
(vi)
refused or failed to negotiate with one or more of the parties; or
(vii)
in or in connection with the negotiations, contravened section 170RB by refusing or failing to negotiate with a person who is entitled under that section to represent an employee; and
(b)
may consider:
(i)
proposed conduct of any of the parties (including proposed conduct of a kind referred to in paragraph (a)); and
(ii)
any other relevant matter.
(4)
Nothing in this section limits the generality of section 111 as applying in relation to:
(a)
an industrial dispute; or
(b)
a conciliation proceeding under Part VI or this Division; or
(c)
any other proceeding before the Commission.”
The reference in s 170QK(2)(a) to “negotiating” may explain (at least in part) the current emphasis placed by the parties upon the term “bargaining” — as opposed to “negotiating” — in the current s 228(1). The decision in Asahi does not greatly assist in the construction of s 228(1) of the Fair Work Act. Some limited assistance, however, may be gleaned from the decision to the extent that it endorses what is said to be a long-held prohibition upon requiring a party to make “concessions”. In that context it may be noted that the Commission concluded (at 421):
“The role of the Commission in the bargaining process is facilitative rather than interventionist. In this regard, orders to facilitate the making of an agreement should generally be limited to the procedural aspects of the negotiation process, for example:
(1)
directing the parties to confer in order to discuss the claims made; or
(2)
setting a timetable for negotiations; or
(3)
requiring the disclosure of relevant information as appropriate for the purposes of the negotiations
The Commission, as we state elsewhere in this decision, cannot require a person to make concessions in negotiations.”
59
Whatever uncertainty exists regarding the meaning of s 228(2), Endeavour Coal did not have any reluctance in submitting that Order 1 clearly trespassed into forbidden territory.
60
Order 1 made by the Full Bench on 23 March 2012 was as follows:
“Endeavour Coal Pty Limited is to take the following actions within 14 days:
a.
Provide to APESMA a list of subject matter that Endeavour Coal would be prepared to include in an enterprise agreement applying to employees at Appin Mine in respect of whom a Majority Support Determination was made on 8 July 2010 (‘Staff’);
b.
Tell APESMA what aspects of the latest version of the APESMA proposed enterprise agreement (annexed to the Application), if any, can be agreed;
c.
Tell APESMA what changes to the latest version of the APESMA proposed enterprise agreement should be made to make it an agreement that Endeavour Coal would make;
d.
Propose terms of an enterprise agreement that Endeavour Coal would be prepared to enter into.”
The terms of Order 1 were relied upon by Endeavour Coal both in support of its submission that the Full Bench had misconstrued s 228(1) and in support of a separate submission that the Order fell foul of s 228(2)(a). In its written submissions, Endeavour Coal thus maintained that Order 1 “clearly requires [it] to engage in negotiations, contrary to s 228(2) and the reasoning in Asahi which s 228(2) adopted”.
61
Clearly enough, the Full Bench did not consider that Order 1 would be in excess of the power conferred by Pt 2-4, Div 8, Subdiv A. In its reasons for decision it thus concluded in part as follows:
“[48]
The good faith bargaining requirements in s.228 require bargaining representatives to ‘bargain’ but do not require them to make concessions or to reach agreement. An order would be beyond power if it required a party to put a different negotiating position to that which it wished to put. However it is not beyond power to require a party to put its negotiating position. Such an order requires no concessions to be made.
[49]
In our view the first order does not go beyond requiring the Company to state clearly its position on the making of an agreement. This will assist the bargaining process and allow the parties to assess the possibilities of an agreement being made. It also addresses the conduct which led to the finding that the good faith bargaining requirements were not being observed. It does not require the Company to make concessions or to reach agreement. It does not require the Company to put a different negotiating position than that which it wishes to put. It simply requires the Company to put its negotiating position. The order thereby seeks to facilitate the bargaining process between the parties in a practical way even though, given the previous position taken by the Company in the negotiations, the effect of such an order might only be to bring the process between the parties to a conclusion.”
62
With great respect to the expertise and experience of the Full Bench, it is concluded that Order 1 is beyond power. Fair Work Australia's power to make orders is confined (inter alia) to directing things to be done to ensure compliance by one or more of the “bargaining representatives” with the “good faith bargaining requirements” (s 231(1)(a)). Order 1 requires things to be done which s 228(2) specifically provides are not required to be done in order to comply with the “good faith bargaining requirements”. An order requiring Endeavour Coal to list the “subject matter” that it “would be prepared to include in an enterprise agreement” trespasses into the area of requiring Endeavour Coal to accept that “subject matter” as part of any final agreement that may be reached. Although it does not require Endeavour Coal to reach agreement on the “terms that are to be included in the agreement” (s 228(2)(b)), it does require Endeavour Coal to make a “concession” as to that “subject matter” which it would be “prepared to include” (s 228(2)(a)). Rather than “subject matter” being left as but part of the “good faith bargaining”, the “subject matter” included within Order 1(a) is quarantined and put to one side whilst “bargaining” continues with the outstanding “subject matter”.
63
Order 1(a) is therefore beyond power. Different considerations may, however, apply if Endeavour Coal were required to “list” that “subject matter” which it “may” be prepared to include in an agreement and — conversely — a “list” of that “subject matter” with respect to which it has greater reservation. The difficulty with Order 1(a) — and the reason why it is concluded it is in excess of power — derives from the manner in which Order 1(a) is expressed and, in particular, the phrase “would be prepared to include”.
64
Order 1(d), it is respectfully concluded, suffers the same fate. An order requiring Endeavour Coal — or the Association — to list “the terms of an enterprise agreement” that it “would be prepared to enter into”, more clearly falls foul of both s 228(2)(a) and (b). Although the terms of Order 1(d) may fall short of requiring Endeavour Coal “to reach agreement on the terms that are to be included”, such an order requires it to make a “concession” as to which terms are acceptable and those which are not.
65
Orders 1(b) and (c) also suffer the same fate.
66
The evil in Order 1 is that it seeks to irrevocably remove from the “bargaining” process both “subject matter” and “terms” and seeks to confine the scope of the “bargaining” process to that which remains. The difficulty in the Order as it is presently expressed is that it seeks to remove Endeavour Coal's freedom to put back onto the “bargaining” table matters previously agreed with a view to (perhaps) securing a different outcome in respect to a different “subject matter” or a different “term”. The Order has the effect of withdrawing Endeavour Coal's freedom to “give and take” contrary to s 228(2). As Endeavour Coal rightly submitted — the Order denies it the ability to bargain on a “package basis”.
67
Order 2 made by the Full Bench on 23 March 2012 was in the following terms:
“Endeavour Coal is not to:
a.
take any further action to unilaterally determine the terms of a new standard contract for Staff; or
b.
alter standard terms contained in Staff contracts of employment; outside of the enterprise bargaining process.”
Endeavour Coal contends (inter alia) that “[t]here is no connection between the orders and any identified breach of s 228 contained in the orders”. It is said that “[t]hey are a blanket ban on free parties engaging in any alteration of common law contracts between them”. It separately submits that “Order 2 is extremely broad in terms and clearly goes beyond any identified issue of any particular finding of a failure to meet the good faith bargaining requirements”.
68
The Full Bench's reasons in support of Order 2 were expressed as follows:
“[55]
Despite the deficiencies in the Commissioner's decision, we are satisfied having examined the relevant evidence that there is an appropriate basis for making the second order. It is directed towards preserving the integrity of the bargaining process by ensuring that changes are not made unilaterally in relation to matters which are still the subject of negotiation between the parties. It addresses unfair conduct by an employer which might undermine freedom of association or collective bargaining. This is not an unreasonable restriction during the bargaining process and whilst the parties are endeavouring to make an agreement. It seeks to preserve the status quo during the bargaining and does not require the parties to make concessions or to reach agreement on terms to be included in an enterprise agreement.
[56]
We recognise that the order will place restrictions upon the Company being able to make changes, some of which might be of minor nature, to the standard terms of contract for new or existing staff employees during the enterprise bargaining process. These restrictions might become unreasonable having regard to the length of the bargaining process. In this regard we note that s.232 of the Act provides when a bargaining order will cease to be in operation, including when the bargaining representatives agree that bargaining has ceased (s.232(b)(iv)) or if the order is revoked (s.232(b)(i)).
[57]
We find that the second order was appropriately made in the circumstances of this matter. We adopt the second order.”
69
It was not argued that the Full Bench lacked power to make an order “preserving the integrity of the bargaining process”. It was, however, submitted that no jurisdictional error was exposed if the only error said to have been committed by the Full Bench was an error in the exercise of the discretion conferred by s 230(1).
70
Order 2, it is concluded, is within the power conferred upon Fair Work Australia to make a “bargaining order”. It is an order which is incidental to the bargaining process being pursued. And there was evidence upon which the Full Bench could be satisfied that the making of such an order would preserve “the integrity of the bargaining process”.
71
Order 2 should not be set aside.
72
Orders 3 and 4 are as follows:
“3.
Endeavour Coal is to ensure that in future bargaining meetings it is represented by a person who has the capacity to make decisions and give reasons for Endeavour Coal's responses.
4.
The parties meet to progress their bargaining within 21 days after Endeavour Coal has taken the steps ordered above.”
Endeavour Coal argued that Orders 3 and 4 “do not deal with the requirements of s231 of the Act” and “are not supported by any relevant finding under s228 of the Act and are not referrable to the purposes identified in s231 of the Act and are not authorised by the Act”.
73
Order 3, it is further concluded, should be set aside. It is, with respect, largely a matter for Endeavour Coal to determine by whom it is to be “represented”. It is an order which seeks to confine the ability of Endeavour Coal to who is to bargain on its behalf. There is no power conferred by s 231 to make such an order. A differently formulated order requiring Endeavour Coal to have access to, or that there be present during “future bargaining meetings” a person “who has the capacity to make decisions and give reasons”, may well require different considerations. It may well frustrate the orderly conduct of “good faith bargaining” if there was not present a person who could give meaningful instructions.
74
Order 4, linked as it is to Orders 1 and 3 which have been set aside, should also be set aside.
75
Any suggestion that the Orders made should be construed as being within power and read such that it does not trespass beyond the reach of s 228(1) or into the area covered by s 228(2) should not prevail. An Order requiring a party to perform a particular act — or to refrain from engaging in conduct — should be certain.
Conclusions
76
The confined construction of s 228(1) contended for by Endeavour Coal is rejected.
77
Nevertheless, Orders 1, 3 and 4 as made by the Full Bench are in excess of the power conferred by s 228 and ss 230(4) and 231. Those Orders are set aside.
78
As is implicit — if not explicit — in the orders of the Full Bench, there is an inevitable tension between imposing upon Endeavour Coal a “requirement” that it “bargain” in “good faith” and a prohibition upon imposing an obligation to make “concessions” or reach agreement as to terms. Notwithstanding the comprehensive submissions advanced by Senior Counsel for Endeavour Coal as to the reach of s 228(1), the meaning of the requirements imposed by that subsection are relatively easy to resolve. The difficulty is in the formulation of orders to give effect to those requirements without trespassing into the prohibited territory created by s 228(2).
79
The application is successful in part. The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.
Orders accordingly
Reported by DANIEL LORBEER