[2014] FWC 7469
FAIR WORK COMMISSION

DECISION


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

Transport Workers' Union of Australia
v
Hunter Operations Pty Ltd
(B2014/895)

VICE PRESIDENT HATCHER

SYDNEY, 30 OCTOBER 2014

Application for a bargaining order.

Introduction

[1] The Transport Workers’ Union of Australia (TWU) has applied for a bargaining order under s.229 of the Fair Work Act 2009 (the Act) with respect to bargaining it contends has been occurring with Hunter Operations Pty Ltd (Hunter Operations) for an enterprise agreement. The grant of that order is opposed by Hunter Operations.

[2] Sections 229 and 230 of the Act prescribe a number of requirements which must be satisfied before a bargaining order may be made. They relevantly provide as follows:

229 Applications for bargaining orders
Persons who may apply for a bargaining order
...
Timing of applications
Prerequisites for making an application
Non-compliance with notice requirements may be permitted

230 When the FWC may make a bargaining order
Bargaining orders
Agreement to bargain or certain instruments in operation
Good faith bargaining requirements not met
Bargaining order must be in accordance with section 231

Issues

[3] It was not in dispute that the TWU was a bargaining representative for a proposed enterprise agreement and thus competent to make the application under s.229(1). In respect of s.229(3), no enterprise agreement currently covers Hunter Operations or any of its employees, so no issue concerning the timing of the application arises. Hunter Operations did not take issue with the TWU’s contention that the TWU held concerns about whether the good faith bargaining requirements were met and had, for the purposes of s.229(4)(b), sent a letter to Hunter Operations dated 22 May 2014 setting out those concerns. It was further not in issue that the TWU had given Hunter Operations a reasonable time to respond to those concerns (which Hunter Operations did by its reply letter dated 29 May 2014) for the purpose of s.229(4)(c), or that the TWU considered Hunter Operations’ response not to be appropriate for the purpose of s.229(4)(d).

[4] The major contest between the parties concerned the s.230(2) requirement. There was no issue that there was no applicable majority support determination, scope order or low-paid authorisation in operation. In order for the Commission to have the power to make a bargaining order, it was therefore necessary for the TWU to satisfy the Commission in relation to s.230(2)(a) that Hunter Operations had agreed to bargaining, or had initiated bargaining, for a proposed agreement. The TWU contended that Hunter Operations had agreed to bargain. Hunter Operations denied this.

[5] In relation to s.230(3)(a), the TWU contended that Hunter Operations had not met and was not meeting the good faith bargaining requirements. Hunter Operations submitted that if, contrary to its primary position, the Commission found that it had agreed to bargain, the Commission could not be satisfied in relation to this matter.

[6] Hunter Operations also submitted, in the alternative, that if the other requirements of s.230 were found to have been met, the Commission could not be satisfied under s.230(1)(c) that it was reasonable in all the circumstances to make a bargaining order. Finally, it also raised a number of issues about the form of the order sought by the TWU.

Facts

[7] Evidence concerning the facts of this matter was given on behalf of the TWU by one of its New South Wales Branch officials, Ms Helen Sourlas. Ms Sourlas’s evidence was supported by contemporaneous notes that she had taken of some of the meetings she had attended with Hunter Operations, as well as a number of emails that passed between the TWU and Hunter Operations and some other documents. Mr Mark Hunter, the Chief Executive Officer of the Hunter Group of companies, gave evidence for Hunter Operations. His evidence was accompanied by two documents.

[8] By way of background, the Hunter Group is a diversified transport and logistics group that operates a number of businesses under separate business names, one of which is Hunter Express. Hunter Operations is the entity in the Hunter Group which employs its transport workers and provides human resources and other management services in connection with those employees. The Hunter Express business is owned and controlled by another entity in the Hunter Group, the Hunter Transport Trust. Hunter Express operates at a number of locations throughout Australia, including at Villawood in Sydney. A small number of truck drivers performed work for the Hunter Express business from that location (about seven as at February 2013 and about four at the time of the hearing), as well as a number of subcontractor owner-drivers.

[9] Mr Stuart Poppleton was at all relevant times until the termination of his employment shortly before the hearing the NSW State Manager of all entities within the Hunter Group except one, Hunter Self Storage. A document setting out his “Job Description and Duties” was annexed to Mr Hunter’s statement. This document identified that Mr Poppleton reported to the General Manager/Chief Executive Officer (which was Mr Hunter). His accountabilities were described as being “All areas of the day to day running of the branch’s activities”. He had a number of specified key and general responsibilities; the latter included “Branch leadership, motivation & action”, “Human resources & recruitment”, “Subcontractor and supplier agreements” and “Overall OH&S responsibilities”.

[10] Mr Hunter gave the following evidence concerning Mr Poppleton’s duties and scope of authority in his witness statement:

“16. Mr Poppleton did not, in his role as NSW State Manager have authority, nor was he authorised by Hunter Operations Pty Ltd or any other entity within the Hunter Group, to bargain on behalf of the Respondent for an enterprise agreement to cover its employed transport workers nationally.

17. Mr Poppleton’s authority was limited to discussing specific instances of industrial or employment issues that arose in the NSW Operations relating to particular employees or owner drivers, either directly with those persons or where they sought to be represented by the Applicant, with the Applicant’s employees or organisers.”

[11] It is clear that Mr Poppleton’s responsibilities were limited to New South Wales, and that he did not have any national authority. Apart from this, however, there was nothing in the “Job Description and Duties” document which supported the suggested limitations on Mr Poppleton’s authority suggested in the above evidence of Mr Hunter. No other contemporaneous business record or document supported it. Mr Hunter did not suggest that there was any board resolution concerning this, or that he had ever given Mr Poppleton an instruction about the matter. In fact it appears, from the following evidence which Mr Hunter gave, that Mr Poppleton had authority of a general nature over employment conditions at Villawood, and that the issue of negotiating enterprise agreements had never come up before:

“So does that mean you accept that he had authority over employment conditions of the transport workers in Villawood?---In a general nature, but not to the extent that is being suggested in this application.
Was that made clear to Mr Poppleton - - -?---Yes.
- - - that he only had a general nature?---Yes, and I believe he was clear about that.
So you're saying that he had some control over employment conditions, but not full control?---He had the authority to speak to the union and discuss any concerns that they may have, you know, how the operation runs and some of that involves what the drivers are asked to do, but it certainly didn't go to the extent of, you know, an agreement or negotiating an agreement which, you know, would have far reaching implications.
THE VICE PRESIDENT: What is that based upon? That is, is there some document which sets out the limits of that authority, or is based on something else?---No. No, I mean, he worked with us for 15 years so, you know, I don't believe there's any doubt about it. We've never had a formal meeting where we said, you know, "This is what you can and can't do."
Had this issue of negotiating enterprise agreements ever come up before?---No.” 1

[12] Mr Hunter’s evidence that Mr Poppleton had authority to “speak to the union and discuss any concerns that they might have [about] how the operation runs” is consistent with Ms Sourlas’s evidence that prior issues she had raised on behalf of the TWU concerning underpayment of employees had been negotiated and resolved with Mr Poppleton. I do not accept Mr Hunter’s evidence that there was some pre-existing specific limitation on Mr Poppleton’s authority which would prevent him from entering into enterprise bargaining in respect of Hunter Operations’ employees in the Hunter Express business at Villawood. I consider that Mr Poppleton’s actual scope of authority was as identified in the “Job Description and Duties” document.

[13] After having resolved with him some specific issues concerning a subcontractor owner-driver and payment for the employees at Villawood, Ms Sourlas raised with Mr Poppleton in mid-February 2013 a proposal that a contract agreement (under Chapter 6 of the Industrial Relations Act 1996 (NSW)) be negotiated to cover the owner-drivers at Villawood. Ms Sourlas subsequently had a meeting with the TWU members at the Villawood site on 21 February 2013. Those minutes disclose that a “general claim” with respect to employees as well as owner-drivers was discussed.

[14] Ms Sourlas gave evidence that towards the end of February 2013 she had several discussions with Mr Poppleton about negotiating two separate agreements - one for the subcontractor owner-drivers and one for the employees at Villawood - and that he agreed to enter into such negotiations. An email exchange between the two on 6 March 2013 demonstrates that Ms Sourlas inquired of Mr Poppleton when he would be available to meet, and when he replied “Friday 8 am”, she replied “That’s fine, we will have to hold separate meetings for both groups I propose 8 am for the sub contractors and 830 am for the employees”. Pursuant to this arrangement, Ms Sourlas together with Mr Gary Thomas, the TWU delegate, met with Mr Poppleton on 8 March 2013. Ms Sourlas retained no notes for this meeting, but said that at the meeting she tabled a document which set out the TWU’s claim for an enterprise agreement. This document, entitled “Log of Claims for a Hunter Express - TWU Fair Work Agreement” (claim) set out in extensive detail the TWU’s claims. Ms Sourlas explained that it was a standard template document that the TWU used in enterprise bargaining. The preamble in the claim stated:

“The workplace agreement (Agreement) negotiated between the Transport Workers’ Union of Australia (TWU) and Hunter Express (the Company) will be a single-enterprise agreement and will provides as follows:”.

[15] The claim went on to detail claims relevant to employment conditions such as “Safety and Security of Employment”, “Appropriate Use of Casual Employment”, 4% annual wage increases, superannuation, redundancy, casual loading and personal/carer’s leave, and also contained provisions relevant to the statutory industrial relations scheme such as “Relationship to Pre-Existing Agreements and Awards” and a requirement that “The provisions of the Agreement will be limited to matters which are permitted matters within the meaning of section 172(1) of the Fair Work Act”. I consider that Mr Poppleton, upon seeing the claim, must have understood (if he did not know already) that the TWU was seeking entry into an enterprise agreement under the Act.

[16] An issue arose in the hearing concerning the scope of the enterprise agreement being sought and the entity with which the agreement was sought. The “Coverage, Scope and Operation” provision of the claim stated that “The parties to the Agreement will cover and apply to the company, transport workers employed by it throughout Australia” and that “The Agreement will cover and apply to the company, transport workers employed by it throughout Australia, and the TWUA”. Those provisions were taken from the standard template. However, Ms Sourlas’s evidence was that it was never her intention to negotiate an enterprise agreement with national effect, and that what was being sought was an agreement applying to the truck drivers at Villawood. Counsel for Hunter Operations adduced the following evidence from Ms Sourlas:

“So it was never your intention to enter into an agreement for a fair work agreement that applied nationally to all employees of Hunter Operations?---It was my intention to negotiate an agreement that was specific to that site, for the drivers employed at that site, and I was very clear on that.
So that's what Mr Poppleton would have understood from you?---Very clearly.
...
So Mr Poppleton would have understood from you that what you were proposing on behalf of the TWU was simply an agreement for employees, those six or seven, essentially, truck drivers who were employees at the Villawood site?---Yes.” 2

[17] I am satisfied that, notwithstanding the “Coverage, Scope and Operation” provision of the claim (which was part of the TWU’s template) that what the TWU was proposing, and what Mr Poppleton understood was being proposed, was an enterprise agreement applying only to the truck drivers at the Villawood site. Further, although the claim referred to the proposed agreement being with “Hunter Express”, it is obviously the case that what the TWU was claiming was an agreement with the employer of the truck drivers at the Hunter Express Villawood site (that is, Hunter Operations), not some other entity.

[18] The next event was that on 13 March 2013 Ms Sourlas sent Mr Poppleton an email saying: “Confirming our meeting tomorrow at 8am. Will you be in a position to respond to some of our claim?”. Mr Poppleton’s response was: “see you then”. The meeting occurred as agreed on 14 March 2013. Ms Sourlas retained no notes of this meeting. There was a further meeting on 21 March 2013. Ms Sourlas’s notes on this reveal that there was a clause by clause discussion of the TWU claim, with Mr Poppleton giving a response to each clause (with a tick in the notes in respect of a number of clauses indicating that agreement was indicated). However, these clause numbers do not correspond as to subject matter with those in the claim. It is apparent that these parts of the notes refer to the TWU’s claim for a contract agreement to apply to the sub-contracted owner-drivers. The notes indicate that towards the end of the meeting there was a discussion about some matters which related to the employees. The notes record at the end “no to 25% loading” and “Redundancy - no: bare minimum”. Ms Sourlas explained that because the claim contained many clauses in common with the TWU’s proposed contract agreement, it was not necessary to revisit every clause when the discussion turned to the employees. The notes end with the words “send agreement”, which Ms Sourlas said was a more comprehensive template of an agreement. This was subsequently sent.

[19] On 10 April 2013 Ms Sourlas sent Mr Poppleton an email stating “Attached is the clause as discussed”. The attachment was not put into evidence, and Ms Sourlas could not precisely recall what it was. Mr Poppleton replied to this email on 15 April 2013 stating:

“hi Helen
I am going to struggle with doing the meeting tomorrow
I would like to put forward a $1 per hour pay increase for the company drivers
So do you want to put that to your members tomorrow and we can meet later in the week or early next week or Gary can talk to me about it
thanks Stuart”

[20] Ms Sourlas then sent two emails in reply. The first, sent on 15 April 2013, said “I’ll see if I can get the guys together otherwise it will be wednesday”, to which Mr Poppleton replied “thanks”. The second, sent on 16 April 2013, said “For clarification, is that $1 each year for the life of the agreement?”. If there was a reply to this email, it was not placed into evidence.

[21] Ms Sourlas’s evidence was that this offer flowed from earlier discussions with Mr Poppleton regarding the increase that the TWU was seeking for its members as part of its claim, and in particular from a discussion in which the TWU had pointed out that Hunter Operations had only been paying 50 cents per hour above the minimum modern award rates. However Mr Hunter characterised this matter quite differently. His evidence was that he instructed Mr Poppleton to “put in a $1 increase” on the basis that “we had always tried to be above the award or better in both payment conditions”. He could not explain why Mr Poppleton put the increase as an offer to the TWU except to say that it was communicated “as a matter of courtesy”.

[22] I prefer the evidence of Ms Sourlas on this issue. It is more consistent with the contemporaneous documents. The TWU had, through the claim, sought pay increases. The claim had been discussed with Mr Poppleton. Mr Poppleton then offered the increase for acceptance by the TWU’s members. The facts make it probable that the offer was made in response to the claim, and with Mr Hunter’s authorisation. Mr Hunter’s evidence, which appears to be that the issue of a pay increase was entirely coincidental with the TWU’s claim, and that Mr Poppleton was on a frolic of his own when he expressed it to the TWU as an offer, does not accord with the probabilities. It is also inconsistent with the fact that the offer was discussed at a later meeting involving Mr Hunter. I do not accept Mr Hunter’s evidence in this respect.

[23] I also infer from this episode that Mr Poppleton was communicating in some fashion with Mr Hunter about his discussions with the TWU. Mr Hunter confirmed this. He said that at some earlier stage Mr Poppleton had brought up the subject of “maybe the union wanting to come and talk to us”, to which he replied “yes, sure you can talk to them”. He also said that Mr Poppleton had made him aware of “various meetings on site”, and had also informed him “that the discussions related to specific claims and issues arising in relation to members of the [TWU] who worked at the Hunter Express yard in Villawood ... in relation to employed transport workers and owner drivers”, but denied that he had been told of any formal process of negotiating an enterprise agreement.

[24] The next event was that Ms Sourlas sent Mr Poppleton an email on 24 April 2013 stating: “Stuart, Can you please advise as to whether a meeting will go ahead this week. If not can you please explain why”. Mr Poppleton replied the same day: “hi Helen, spoke to Mark, he is available Monday week the 29th can we do then 8.30”. “Mark” was evidently a reference to Mr Hunter. Ms Sourlas’s evidence was that the TWU had requested his presence because it had a concern that the negotiations had been “stymied” by Mr Poppleton on the basis that the next date for discussions had not been committed to. However, Ms Sourlas had herself cancelled a meeting on 4 April 2013, and a subsequent meeting had been postponed because Mr Poppleton was unable to attend. It does not seem to me that Mr Poppleton had stymied anything. However, the fact that Mr Hunter’s attendance was requested by Ms Sourlas was confirmed by Mr Hunter, who said that Mr Poppleton conveyed that request to him.

[25] The next meeting occurred on 29 April 2013 as arranged, and was attended by Mr Hunter, Mr Poppleton, Ms Sourlas and the TWU delegate. Ms Sourlas’s notes of the meeting disclose that reference was initially made by her to “clauses outstanding ... delegates’ leave; superannuation; comprehensive agreement”. The pay offer was then discussed: “$1 initially; for the first year”. Ms Sourlas said that the TWU’s response at the meeting was that this was “a start” but that the TWU’s members still wanted a “comprehensive agreement”.

[26] Mr Hunter said that Ms Sourlas began the meeting by reading from a document, and he then formed an appreciation that this document “was obviously some formal document that was going to be applied to our workplace” and that Ms Sourlas was proceeding on the assumption that there were negotiations going on for an agreement. Ms Sourlas’s notes record that Mr Hunter then intervened in the following fashion:

“- do not want to enter into negotiations for agreements
- Believe that the Modern Award & General Carriers Determination 3 - sufficient

- everything can be covered by relevant instruments

...
- we are not going to have an agreement that dictates how the company
- Not bargaining ...”.

[27] Mr Hunter and Ms Sourlas both confirmed in their evidence that Mr Hunter made it clear at the meeting that, so far as he was concerned, Hunter Operations was not going to bargain for or enter into an enterprise agreement. Mr Hunter also claimed that he was also “attempting to be entirely constructive in that meeting about workplace discussions”, and that in response Ms Sourlas thumped the table, saying “I am telling you Mr Hunter that this is how it is going to be” and accusing him of being “hysterical and ludicrous”, in response to which Mr Hunter felt “insulted and bullied”. This is not reflected in Ms Sourlas’s notes, and was not put to her in cross-examination.

[28] Mr Hunter’s evidence about his state of knowledge about what had occurred prior to the meeting of 29 April 2013 is somewhat confusing. In his statement of evidence he claimed that he was not aware of the TWU’s proposal to enter into negotiations for a contract agreement for the subcontractor owner-drivers. However in his oral evidence he said that Mr Poppleton had, before the meeting, provided him with the TWU’s claim for a contract agreement, and that he was “aware that the union was pushing for this document to be put - you know, agreed to”. He denied however that he had ever seen the TWU’s separate claim for an enterprise agreement, and denied that prior to the meeting he had any understanding that the TWU was seeking an enterprise agreement. It was only when Ms Sourlas was reading from the document at the meeting, Mr Hunter said, that “it was clear to me at that point that, you know, we’d moved far along a process which, you know, I wasn’t aware of or hadn’t approved”.

[29] I consider that it is more probable than not that, prior to the meeting on 29 April 2013, Mr Poppleton had informed Mr Hunter that he was engaging in negotiations with the TWU for a contract agreement, and that Mr Hunter had done nothing to restrain him. I also consider it more probable than not that Mr Poppleton had informed Mr Hunter that he was engaging in negotiations with the TWU concerning pay and conditions for the truck drivers at Villawood, and again that not only had Mr Hunter not restrained him but had authorised the offer of the $1 per hour pay increase. However while I consider it to be clear that Mr Poppleton was aware that this was occurring in the context of bargaining in response to the TWU’s claim for an enterprise agreement, I am prepared to accept that this was not properly understood by Mr Hunter.

[30] After the meeting on 29 April 2013, Ms Sourlas sought clarification of Hunter Operations’ position. On 2 May 2013 Ms Sourlas sent the following email to Mr Poppleton:

“In light of our meeting held on Monday the Union is seeking clarification.
Can you please confirm if Hunter Express are refusing to bargain with the Union a comprehensive agreement for both employees and owner drivers.
I look forward to your response.”

[31] Mr Poppleton replied on 6 May 2013 as follows (emphasis added):

“hi Helen
please set out in writing your concerns on the issues you have
we are open to negotiate but there are limits which we tried to explain to you last Monday”

[32] Ms Sourlas then sent the following email on 7 May 2013:

“Hi Stuart,
The Union in the first instance requires confirmation from you as to whether Hunter Express is committed to bargaining an agreement for both the employees and sub contractors. To note, if the Company disagree on some clauses thats fine, we can have discussions around that. However, what was indicated at the meeting recently held, was that the Company did not want to continue with the bargaining process and had in fact withdrawn from it all together.
Please clarify this point.”

[33] Mr Poppleton replied the same day (emphasis added):

“hi Helen
we are willing to bargain but from our last meeting there seem to be so many points that don’t look to be able to be resolved
that there needs to be an end point where we both agree that we might not be able to agree
how ever we are will to continue talks to attempt to resolve
we would still wish to see written concerns from you before we would continue”

[34] Ms Sourlas replied later that day:

“Hi Stuart,
What ill do is forward a table where ‘agreed’ and ‘outstanding’ items are detailed.
In the meantime you will need to issue notice of representational rights for the employees.”

[35] On 23 May Ms Sourlas sent the following email to Mr Poppleton:

“Stuart
I understand that there will be a meeting held Monday 27 May 2013 and TWU delegates have been invited to attend. Our delegates asked that I be in attendance but this request was denied.
Can you please outline the specific nature of the meeting scheduled.
Further, I appreciate that you have returned from leave today however can you confirm the following by close of business today
a) Date and time next week for bargaining to recommence
b) Whether you are intending to circulate a notice of representation rights.”

[36] Mr Poppleton replied that day as follows:

“hi Helen
thursday next week would suit me if that works for you
as far as the notice of representational rights who would you like that given to since where all ready talking to the six people involved
the monday meeting is a full staff meeting that any one of our staff can attend from all depts to go along with a breakfast for the staff and drivers.”

[37] It was not in dispute that Hunter Operations never issued a notice of representational rights.

[38] On 3 June 2014 Mr Poppleton sent the following email to Ms Sourlas:

“hi Helen
re the document you sent Friday
there is a lot of stuff in there thats for linehaul which our drivers don’t do.
outstanding issues that we still need to talk about
1 9.3 we are not going to agree to this clause
2 10.3 no to the chairman beeing a twu delegat or having a castting vote
3 17.2 M dys off for union courses etc
4 18.2 first year done and 3% for the remaining years
5 19 we need to talk about
6 20 superannuation westpac to be default but people can change to the twu fund if they wish no increase to amount
7 I didn’t see the redundancy clause we spoke about and declined”

[39] On 20 June 2013 Ms Sourlas emailed a list of what appeared to her to be the outstanding items for “the agreement (employees)”. The matters identified were the wage claim, superannuation, site rates/use of outside hire, union picnic day, number of days for delegates’ leave, annual leave loading and disputes procedure. Mr Poppleton replied on 24 June 2013 as follows:

“hi Helen
sorry been flat out
yes i agree these are the items we disagree on
I’m not sure where we go from here we these
we have addressed the first part of the wage claim already and have implemented that
our offer of 3% is still on the table
super is a definate no to the 1% per year
no to picnic day
no to annual leave loading
days off for delegates is still up in the air
disputes procedures we need to talk about”

[40] On 1 July 2013 Ms Sourlas sent Mr Poppleton the following email:

“Stuart,
In an attempt to move forward the matter of the employees agreement I ask if you would consider the following (on a without prejudice basis)
Wage increase of 5.9, 3.2, 3
Dispute procedure that refers to the employer/employee relationship (we can discuss the detail of this at a meeting).
Please call me to discuss.
Helen”

[41] The negotiations then appeared to fall into desuetude for a period, mainly because Ms Sourlas took six weeks’ leave. Her evidence was that when she returned, she endeavoured to finalise the contract agreement rather than the enterprise agreement. She did however exchange emails with Mr Poppleton on 14 October 2013 in which they bargained as to the number of days for delegates’ leave. On 20 November 2013 she emailed Mr Poppleton requesting a renewal of the enterprise agreement negotiations, and a meeting was agreed for 29 November 2013. Ms Sourlas said that the meeting proceeded, but that she had misplaced her notes for that meeting. There was then a meeting in about early December 2013 to finalise the discussions about the contract agreement, and during that meeting Ms Sourlas inquired of Mr Poppleton about a further meeting concerning the enterprise agreement. The following conversation occurred:

Stuart: ‘We want to revise our offer, we are willing to offer 3.5% [wage increase] each year for the agreement’
Me: ‘I will take it back to the guys’

[42] Ms Sourlas then held a meeting with the Villawood employees on 12 December 2013. They agreed to wage increases of 5.9% for the first year (being the percentage equivalent of the $1 per hour increase previously discussed and already implemented) and 3.5% for each of the following two years. The outstanding matters identified in Ms Sourla’s notes of the meeting were the disputes procedure, annual leave loading, superannuation, delegates’ leave and the union picnic day.

[43] Ms Sourlas’s evidence was that by January 2014 the content of the contract agreement had been finalised in negotiations with Mr Poppleton, but that she perceived that Hunter Operations was reneging on signing it. She said that she had arranged to meet with the subcontractor owner-drivers about this at the Villawood yard on the morning of 30 January 2014, but that when she arrived Mr Hunter was addressing the owner-drivers. Mr Hunter on the other hand denied that Hunter Operations had agreed to negotiate a contract agreement or that there was a finalised agreement. He said that he had arranged the meeting with the owner-drivers on 29 January 2014, and that Ms Sourlas arrived without notice and tried to take over the meeting.

[44] Mr Hunter’s evidence as to why he called the meeting was again confused and contradictory. In his statement he said that he called the meeting to discuss “contractual matters” (unspecified) with them. In his oral evidence, when asked why he arranged the meeting, he said it was because “Stuart [Poppleton] was away at the time and I was filling in for his role during that time and I wanted to speak to the owner-drivers myself”. However he later conceded that Mr Poppleton attended a meeting in the office that same day. When asked what he spoke to the owner-drivers about, he said: “... the business overall, and the union delegate at the time had mentioned a few things about the union’s involvement and I wanted to reach out to them”. He could not remember what the union delegate told him, but said that “I was aware that the union was continuing to be around”.

[45] Ms Sourlas gave evidence that when she arrived at the meeting, she heard Mr Hunter saying to the owner-drivers: “You don’t need the union, why get them involved, we will look after you”. An argument then broke out between her and Mr Hunter as to whose meeting it was. Her note of the meeting taken later that day recorded her asking him “why he did not want to sign an agreement that the Union had been negotiating with the Company over the last 8-9 months” to which he responded “We don’t need a union agreement”.

[46] On the balance of probabilities, I find that Mr Hunter had become aware that Mr Poppleton had negotiated a contract agreement with the TWU, decided that it should not proceed, and arranged the meeting with the owner-drivers (or intervened in the meeting arranged by Ms Sourlas) to attempt to persuade the drivers that the contract agreement was not in their interests.

[47] Later that morning there was a meeting in Hunter Operations’ office involving Mr Hunter, Mr Poppleton, Ms Sourlas and the TWU owner-driver delegate. Ms Sourlas said that at the meeting Mr Hunter informed her that he did not believe that an enterprise agreement was appropriate for his business and that he would no longer be negotiating with the TWU for an agreement. Mr Hunter’s evidence was that he said that Hunter Operations did not wish to enter into a contract agreement for the owner-drivers at the Villawood site. I prefer Mr Hunter’s evidence on this point; Ms Sourlas’s notes of the meeting tend to confirm that Mr Hunter was indicating a refusal to enter into an agreement covering the owner-drivers, and this fits more readily into the sequence of events just described. However if Ms Sourlas took from the meeting the impression that Mr Hunter was unlikely to sanction any continuation of negotiations for an enterprise agreement, I consider that she was on fairly safe ground to do so.

[48] Ms Sourlas said that in the period from February to May 2014 she met several times with the Villawood employees in an endeavour to come to a position which was acceptable to them. There were no further meetings with Hunter Operations. Ms Sourlas formed the view that an agreed position could not be reached without further bargaining meetings, but Hunter Operations refused to meet any further with the TWU about the matter. On 22 May 2014 Mr Warnes of the TWU sent the following letter to Mr Poppleton:

“Dear Mr Poppleton,
Bargaining for an enterprise agreement with employees and the TWU
We act for our members working at the Hunter Express (Hunter) yard in Villawood.
As you are aware, many of Hunter’s employees are members of the Transport Workers’ Union of Australia (TWU).
The TWU and Hunter have been engaged in negotiations for an enterprise agreement to apply to employees at since January 2013, and discussions about the same took place well before that. Meetings continued to take place until December 2013. Since that time, Ms Helen Sourlas on behalf of the TWU has continued attempts to finalise the enterprise agreement, but has been stifled from doing so due to reluctance by Hunter.
We have concerns that you are not meeting the good faith bargaining requirements contained in section 228 of the Fair Work Act 2009 (the Act) which govern the conduct of bargaining representatives in periods such as that described above. Specifically our concerns are in relation to section 228(1)(a), (c), (d), (e), and (f).
As such, we request that you meet with the TWU on the earliest possible occasion to resolve the outstanding issues between the parties and finalise the enterprise agreement. We put you on notice that if you refuse to meet with the TWU, we will be applying to the Fair Work Commission for bargaining orders pursuant to section 229 of the Act.
Please contact Helen Sourlas to arrange further bargaining meeting. We hope that the parties are able to resume negotiations sensibly and in good faith to have this matter dealt with as expeditiously as possible.”

[49] Mr Hunter sent the following reply dated 29 May 2014:

“Dear Mr Warnes
We refer to your letter dated 22 May 2014 addressed to Stuart Poppleton.
We disagree that TWU have been engaged in negotiations for an enterprise agreement to apply to employees since January 2013 or at any time. Indeed we have made our position quite clear that we do not regard an enterprise agreement to be appropriate for our workplace.
In the circumstances as we have neither agreed to bargain nor initiated bargaining and do not consider the requirements for Fair Work to make a bargaining order under s230 of the Fair Work Act have been met. Any application by you under s229 will be vigorously opposed.
Please address any future correspondence or enquiries in relation to Hunter to Mark Hunter, Chief Executive Officer.”

Consideration

Whether Hunter Operations agreed to bargain

[50] The first issue which needs to be considered is whether Hunter Operations agreed to bargain for the purpose of s.230(2)(a). What constitutes an agreement to bargain is not defined in the Act. Applying conventional contractual principles, I consider that an employer may agree to bargain expressly in writing or orally, or that an employer may be inferred to have agreed to bargain through its conduct (such as by commencing to actually engage in bargaining in relation to a proposed enterprise agreement).

[51] Section 173 is of significance in understanding what constitutes an employer agreeing to bargain. The section provides as follows:

173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time
(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given.

[52] It can be seen that the requirement in s.173(1) upon an employer who will be covered by a proposed enterprise agreement to take all reasonable steps to give a notice of representational rights (Notice) operates by reference to all employees who will be covered by the agreement and who are employed at the “notification time”. The requirement in s.173(3) to issue such a notice not later than 14 days also operates from the “notification time”. The expression “notification time” is, for relevant purposes, defined in s.173(2)(a) to mean the time when the employer agrees to bargain or initiates bargaining for the agreement. This definition indicates that an employer’s agreement to bargain is a single event which happens at a particular time. Applying the principle of statutory construction that words and expression in an Act are presumed to have the same meaning throughout an Act, 4 and proceeding on the basis that the provisions concerning enterprise agreements contained in Part 2-4 of the Act constitute an internally consistent and coherent scheme, I consider that the agreement of an employer to bargain as referred to in s.230(2)(a) is likewise to be understood as referring to a single event occurring at a particular time. It is not therefore necessary for an employer, once having initially agreed to bargain, to have maintained at all times thereafter its agreement to bargain in order to be regarded as having agreed to bargain for the purpose of s.230(2)(a). Thus, for example, if an employer decides to cease negotiating because it decides that an enterprise agreement no longer suits its interests, that will not alter the fact that it agreed to bargain at an earlier point in time.

[53] Section 173(3) requires the Notice to be issued as soon as practicable and not later than 14 days after the notification time. Thus the requirement to issue the Notice arises once the employer has agreed to bargain or has initiated bargaining; it is not a prerequisite for bargaining. Therefore the fact that no Notice was ever issued by Hunter Operations cannot be decisive on the question of whether it agreed to bargain.

[54] I consider that the evidence makes it clear that, commencing in about late February-early March 2013 and until about December that year, Mr Poppleton was engaged in a process of negotiating the terms of an enterprise agreement with the TWU to apply to the truck drivers at the Villawood yard. I reject at this point Hunter Operations’ argument that because TWU’s claim was nominally Australia-wide in scope the enterprise agreement proposed by the TWU should be understood as national in its operation and not confined to the Villawood yard. As I have earlier found, notwithstanding what the claim said, it was mutually understood by Mr Poppleton and Ms Sourlas that what in fact was being proposed was an enterprise agreement for the Villawood yard only. From 8 March 2013 at the latest, when Mr Poppleton met with Ms Sourlas for the purpose of discussing an enterprise agreement for the employees at Villawood and Ms Sourlas tabled the TWU’s claim in that respect, Mr Poppleton’s conduct in meeting with the TWU at regular intervals and responding to the items in the TWU claim, or making counter-proposals of his own, can only be interpreted as engaging in negotiations for an enterprise agreement. Mr Poppleton must therefore be regarded, by his words and other conduct, as having agreed to bargain with the TWU at a point in time in about late February-early March 2013, and not later than 8 March 2013. The critical question is whether Mr Poppleton’s conduct in this respect can be taken to be the conduct of Hunter Operations.

[55] At the point at which the negotiations between Mr Poppleton and the TWU commenced (that is, late February or early March 2013), I consider that Mr Poppleton had actual authority to enter into negotiations with the TWU for an enterprise agreement covering employees under his direct management control. He was the NSW State Manager of the Hunter Group, and directly managed the Villawood yard. As earlier stated, I consider that Mr Poppleton’s job description (the relevant parts of which have been quoted above) prescribed the actual scope of his authority, and was not relevantly restricted by any prior instruction given to him by Mr Hunter. That this encompassed authority of a general nature concerning the employment conditions of the truck drivers in the Villawood yard, and allowed him to speak about such matters with the TWU, was confirmed by the evidence of Mr Hunter. That authority conferred by that job description was sufficiently broad to allow him to agree on behalf of Hunter Operations to engage in a process of negotiation with the TWU - that is, bargain - for an enterprise agreement covering the truck drivers in the Villawood yard. Whether that authority would have extended to him actually entering into a finalised enterprise agreement on behalf of Hunter Operations is a different question which I do not need to determine for the purpose of this application.

[56] Alternatively, even if Mr Poppleton did not have actual authority to agree on Hunter Operations’ behalf to bargain for an enterprise agreement, I consider that he had apparent authority to do so. Apparent authority to agree to bargain is sufficient for the purposes of s. 230(2)(a) by virtue of s.793 of the Act, which provides as follows:

[57] What constitutes “apparent authority” for the purpose of s.793 was discussed by Katzmann J (with whom McKerracher J agreed) in Australian Workers' Union v Leighton Contractors Pty Limited 5. Katzmann J characterised s.793 as having a “broad operation” that was not confined to the civil penalty provisions of the Act6, and went on to say:

“[92] I accept that for Mr Close to have had apparent authority it is not enough that he held himself out as having authority ... There must at least have been circumstances justifying a belief on the part of those who dealt with him that he was acting with authority... The relevant legal principles are largely contained in the reasons of Diplock LJ in Freeman & Lockyer (A Firm) v Buckhurst Park Properties (Magnal) Ltd [1964] 2 QB 480 at 502–9, which were approved by the High Court in Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd [1975] HCA 49; (1975) 133 CLR 72 at 79. Diplock LJ (at 506) summarised the four conditions necessary to entitle a contractor to enforce against a company a contract entered into on the company’s behalf by an agent with no actual authority to do so. They are:

[58] The approach taken by Katzmann J to apparent authority under s.793 is consistent with the approach taken by the High Court in Pacific Carriers Ltd v BNP Paribas 7 to apparent or ostensible authority generally. In that decision the Court said: “Where an officer is held out by a company as having authority, and the third party relies on that apparent authority, and there is nothing in the company's constitution to the contrary, the company is bound by its representation of authority”8. The Court made it clear that the representation of authority must come from the company itself and not the officer alone, but went on to say that the requisite “representational conduct” may be constituted by the company’s organisational structure:

“In many cases the representational conduct commonly takes the form of the setting up of an organisational structure consistent with the company's constitution. That structure presents to outsiders a complex of appearances as to authority. The assurance with which outsiders deal with a company is more often than not based, not upon inquiry, or positive statement, but upon an assumption that company officers have the authority that people in their respective positions would ordinarily be expected to have. In the ordinary case, however, it is necessary, in order to decide whether there has been a holding out by a principal, to consider the principal's conduct as a whole ... A kind of representation that often arises in business dealings is one which flows from equipping an officer of a company with a certain title, status and facilities.” 9

[59] I consider that the conduct of Hunter Operations in conferring upon Mr Poppleton as part of its organisation structure the title and functions of NSW State Manager, and in giving him prior to February 2013 the actual authority to deal with the TWU about issues concerning the truck drivers at the Villawood yard which might arise, constituted a representation that he had actual authority to negotiate with the TWU concerning the employment conditions of the truck drivers at the Villawood yard, including actual authority to agree to bargain for an enterprise agreement. Hunter Operations did not attempt to place its constitution into evidence, and from that I infer that there was nothing in its constitution which imposed any limitation upon the authority which Hunter Operations’ organisational structure represented Mr Poppleton as possessing. It is clear from the evidence that the TWU relied upon this representation in attempting to negotiate an enterprise agreement with Mr Poppleton.

[60] Mr Poppleton’s actual authority to negotiate an enterprise agreement with the TWU might well be regarded as having been terminated at the meeting on 29 April 2013 when Mr Hunter made it clear to the TWU in Mr Poppleton’s presence that Hunter Operations was not prepared to enter into an enterprise agreement. It may also be the case that for the same reason Mr Poppleton could not be regarded as having apparent authority beyond that point. However because, as earlier stated, agreement to bargain for the purposes of s.230(2)(a) is a single event which happens at a particular point in time, this could make no difference to the result. Hunter Operations, by virtue of Mr Poppleton’s earlier conduct in late February-early March 2013, had already agreed to bargain. Its subsequent conduct could not operate to alter this fact.

[61] I therefore find, for the purpose of s.230(2), that Hunter Operations agreed to bargain for an enterprise agreement covering its truck driver employees at the Villawood yard in approximately late February-early March 2013, and not later than 8 March 2013.

Whether other requirements of s.230 satisfied

[62] I am satisfied, for the purpose of s.230(3)(a), that Hunter Operations, as a bargaining representative for itself under s.176(1)(a), has not met the good faith bargaining requirements in s.228. In particular, I am satisfied that in refusing to continue to meet with the TWU, Hunter Operations has failed to meet the requirements in paragraphs (a), (e) and (f) of s.228.

[63] As earlier stated it was not in dispute, and I find for the purpose of s.230(3)(b), that the TWU has complied with the requirements of s.229(4). Therefore the requirements of s.230 are met in accordance with s.230(1)(b).

Discretionary considerations

[64] Under s.230(1), where an application for a bargaining order has been made and the requirements of s.230 are met in relation to a proposed agreement, the Commission “may make” a bargaining order if it is “satisfied that it is reasonable in all the circumstances to make the order”. This effectively involves the exercise of a double discretion. The assessment of what is reasonable in all the circumstances requires a broad evaluative judgment that is in the nature of a discretionary decision. 10 Even if the Commission is satisfied that it is reasonable in all the circumstances to make a bargaining order, the use of the word “may” in connection with the power to make the order indicates that the Commission retains a residual discretion as to whether to make an order or not.11

[65] The question of whether there is any utility in making a bargaining order must be a critical consideration as to whether it is reasonable in all the circumstances to make an order and whether the residual discretion should be exercised in favour of the applicant. I consider that if the making of a bargaining order could not possibly result in the making of an enterprise agreement capable of approval under the Act, then it would not be reasonable in all the circumstances to make a bargaining order and a bargaining order should not be made.

[66] I have earlier referred to the fact that Hunter Operations never issued any Notice pursuant to s.173 of the Act. Having regard to my finding that Hunter Operations agreed to bargain for an enterprise agreement in late February-early March 2013, s.173(3) required Hunter Operations to issue that Notice not later than 14 days after that time. Although it was not specifically raised by either party during the hearing, I formed the view in the course of my consideration of this matter that Hunter Operations’ failure to comply with s.173 might affect the capacity of the Commission to approve any enterprise agreement which might result from the issuing of a bargaining order. Consequently I invited the parties to make further submissions on the following questions:

[67] Both parties filed further submissions in response to this invitation. The TWU accepted that without the prior issue of a Notice, an enterprise agreement could not be approved under the Act. However, it submitted that where a Notice was issued outside the 14-day time requirement in s.173(3), this did not prevent any enterprise agreement subsequently negotiated from being approved under the Act. Once the Commission found that Hunter Operations had agreed to bargain, its obligation under s.173 to issue the Notice remained, and in the event that it did not comply it was open to the Commission to make a bargaining order requiring the Notice to be issued. In those circumstances, the TWU submitted, there was utility in issuing a bargaining order.

[68] Hunter Operations also accepted that without the issue of a Notice, a subsequent enterprise agreement could not be approved. However, it submitted that the mandatory language of s.173(3) indicated that any purported Notice issued outside the prescribed 14-day time limit would be invalid. In those circumstances, the issue of a bargaining order would have no utility. Hunter Operations further submitted that there was no power under s.231 or otherwise to order an employer to issue a Notice.

[69] Having considered these submissions, it appears to me that the critical question is whether a Notice issued outside the time limit prescribed by s.173(3) is invalid. If it is, then it would not matter whether the Commission had the power under s.231 or otherwise to order Hunter Operations to issue a Notice, since as a result of my finding that Hunter Operations agreed to bargain in late February-early March 2013 it would now be too late for a valid Notice to be issued.

[70] The significance of the Notice in the scheme of enterprise bargaining established by Part 2-4 of the Act was discussed by the Full Bench in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union 12 as follows:

“[20] As to the context, the Notice provides employees with important information about the nature of an enterprise agreement and the employees’ right to appoint a bargaining representative to assist them in bargaining for the agreement or in a matter before the Commission about bargaining for the agreement. The Notice sets out the default position for union members, that is, they will be represented by their union if they do not appoint a bargaining representative.
[21] Bargaining representatives perform an important role in the negotiation of an enterprise agreement. Section 228 sets out the ‘good faith bargaining requirements’ that must be met during the bargaining process. Importantly, the employer must ‘recognise and bargain’ with other bargaining representatives (s.228(1)(f)); ‘give consideration’ to the proposals of other bargaining representatives and respond to those proposals in a timely manner (s.228(1)(c)), giving reasons for their responses (s.228(1)(d)). A bargaining representative may apply to the Commission for a bargaining order under s.230 in relation to the agreement (s.229(1)). An employee organisation that was a bargaining representative for the proposed enterprise agreement has an entitlement to be covered by the agreement (see s.183(1) and 201(2)).
[22] Sections 173 and 174 are integral to the scheme of Part 2-4 of the Act. Section 173 provides that the employer must give the Notice to the relevant employees as soon as practicable, and not later than 14 days after the ‘notification time’ for the agreement. In the context of this case the ‘notification time’ is the time when the employer ‘agrees to bargain, or initiates bargaining, for the ‘agreement’ (s.173(2)(a)). Section 174 deals with the form and content of the Notice. Importantly, the employer cannot request employees to approve the agreement until 21 days after the last Notice is given (see s.181(2)).”

[71] The Full Bench’s analysis above is consistent with the following statement made by the Federal Court (Katzmann J) in Construction, Forestry, Mining and Energy Union v Hamberger 13: “The purpose of the relevant provisions in Part 2-4 is to facilitate the making of a democratic and informed decision on whether the agreement should be made”.

[72] It is clear that unless a valid Notice is issued, any subsequently-negotiated enterprise agreement will not be capable of approval under Part 2-4 of the Act. Under s.186(2), in order to be approved a non-greenfields enterprise agreement must have been “genuinely agreed to by the employees covered by the agreement”. Section 188(a)(ii) requires that in order for an enterprise agreement to have been genuinely agreed to by employees, the employer must have complied with s.181(2). Section 181(2) requires that an employer’s request to employees to approve an enterprise agreement must not be made until at least 21 days after the day on which the last Notice was given under s.173(1). It follows that unless a valid Notice is issued, the requirement in s.181(2) is not satisfied and an enterprise agreement cannot be approved. This was made clear by the Full Bench in Peabody Moorvale. 14

[73] Peabody Moorvale was concerned with whether non-compliance with the form and content requirement for Notices prescribed by s.174(1A) meant that the Notice was invalid. Section 174(1A) provides:

Notice requirements
(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

[74] The Full Bench held that non-compliance resulted in invalidity. Its reasoning included the following (footnotes omitted):

“[14] What then are the consequences of providing a Notice which is different, either in content or form, from the Notice prescribed in the Regulations? As the High Court said in Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky), an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect:
“Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”
[15] While there is no decisive rule that can be applied to determine legislative purpose the decided cases provide some guidance in analogous circumstances. A textual indicator which is always of significance is the mode of expression in the provision in question. As Spigelman CJ observed in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd: ‘Substantial indeed often, but not always, determinative, weight must be given to language which is in mandatory form’.
[16] The word ‘must’ in s.174(1A) is language in mandatory form. A similar conclusion, albeit in a different context, was reached by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs. In that case the court was construing s.424A of the Migration act 1958 (Cth) which provides:
“Applicant must be given certain information.
(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in s.441A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of given documents to such a person ...” (emphasis added)

[17] The use of the words ‘must give’ was described by various members of the Court as ‘imperative’. As McHugh J put it:
“... the assumption that no breach of s.424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the section. Nothing in the section suggests that fairness in the way in which the Tribunal observes its statutory obligation is an implied limitation on its operation. The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the mandatory nature of the obligation in s.424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s.424A ...
Because the language of s.424A is imperative, failure to comply with the obligation to provide the applicant with particulars of adverse information in writing constitutes a breach of that section ... There was some debate before this Court as to whether the term ‘must’ in s.424A(1) necessarily imposed a mandatory requirement to provide the information in writing in all circumstances. However, in the absence of any qualifying terms, the natural meaning of the section is that the Tribunal is compelled in all circumstances to provide the information in writing. This is so, even if the Tribunal puts the information to the applicant at an interview or when the applicant appears before the Tribunal to give evidence and present arguments. Such a construction is consistent with the purpose of the section to accord the applicant procedural fairness in the conduct of the review.” 
[18] Subsection 174(1A) uses language in mandatory form and goes to some length to make it clear that there can be no departure from the content or form of the Notice prescribed in the Regulations. As mentioned earlier, s.174(1A) provides that a Notice must contain the prescribed content, must not contain any other content and must be in the form prescribed.
[19] The clear and unambiguous meaning of the words of s.174(1A) is entirely consistent with the context and mischief to which the provision is addressed.”

[75] In identifying the “context and mischief” referred to, the Full Bench discussed the significance of the Notice as earlier quoted, and after considering the circumstances in which s.174(1A) was enacted concluded that: “The language of s.174(1A), the context and legislative purpose all support the proposition that a failure to comply with the provision goes to invalidity”. 15

[76] Like s.174(1A), s.173(3) is expressed in mandatory language. Not only is the word “must” used to convey the requirement that the Notice must be given as soon as practicable after the notification time, but also the expression “no later than” is used to introduce the 14-day requirement. That expression, read in the context of the subsection as a whole, must be read as meaning something equivalent to “in no circumstances after”. No other provision of the Act allows or accommodates any extension to the time allowed by s.173(3). It is not an irregularity capable of being waived under s.586(b). The language of s.173(3) therefore strongly points to invalidity being the consequence of a failure to comply.

[77] One important contextual consideration supports this conclusion, and that is that there is no separate sanction for contravention of s.173(3). It is not a civil remedy provision. No other remedy for contravention is identifiable. Therefore unless non-compliance with s.173(3) resulted in the invalidity of the Notice and any subsequent enterprise agreement being rendered incapable of approval, it would become in substance voluntary and without practical utility. That cannot have been intended by the legislature.

[78] An interpretation of s.173(3) which requires strict compliance is consistent with the statutory purpose of the Notice as identified in Peabody Moorvale. It would ensure that employees are informed at the earliest practicable time of the fact that bargaining is occurring and their entitlement to representation in that process. An alternate construction, whereby the Notice could be given at any time without adverse consequences provided that this occurred 21 days before a vote to approve the enterprise agreement occurred, would have potential consequences which would be destructive of the Notice’s statutory purpose. It might mean that bargaining for an enterprise agreement is well advanced or even completed before all employees are advised of the fact that bargaining is occurring and are made aware of the means by which they may participate and be represented in that bargaining process. If, for example, an employer agrees to negotiate in response to a claim for an enterprise agreement made by a relevant union, the late provision of the Notice may mean that any employees who are not members of that union may not be aware that bargaining is occurring or that they may be individually represented in such bargaining before the negotiations have substantially progressed or have finished. Similarly if an employer initiates bargaining with employees directly, and any employees who are union members are not advised from the outset through the Notice that they are entitled to have their union represent them in the bargaining, the result may be that bargaining proceeds without that union being involved contrary to the representational entitlement of the union members.

[79] I conclude therefore that in order for a Notice to be valid, it must be issued in conformity with s.173(3). In respect of the bargaining which has occurred between Hunter Operations and the TWU, no valid Notice can now be issued, and no enterprise agreement which might ultimately emerge from that bargaining would be capable of approval. In those circumstances, the making of a bargaining order could serve no possible purpose. That would be so even if a bargaining order could require that a Notice be issued.

[80] For this reason, I am not satisfied that it would be reasonable in all the circumstances to make a bargaining order, and I would decline to exercise my discretion in favour of making such an order. It would seem to me that if the TWU wishes to obtain an enterprise agreement for the truck drivers at Hunter Operations’ Villawood yard, it would be necessary for it to seek to recommence the bargaining process by making an application for a majority support determination under s.236 of the Act.

Conclusion

[81] The TWU’s application for a bargaining order is dismissed.

140120_121417.jpeg

VICE PRESIDENT

Appearances:

T. Warnes for the Transport Workers’ Union of Australia

C.Magee of counsel and S. Tones solicitor for Hunter Operations Pty Ltd

Hearing details:

2014.

Sydney:

25 August.

 1   Transcript PNs 780-785.

 2   Transcript PNs 136-137, 155.

 3   This is a reference to the Transport Industry - General Carriers Contract Determination, an instrument in effect under Chapter 6 of the Industrial Relations Act 1996 (NSW) which sets minimum pay rates and conditions for certain categories of subcontractor owner-drivers.

 4   Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, Taikato v R (1996) 186 CLR 454, Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151, State of Queensland (Queensland Health) v Che Forest (2008) 168 FCR 532; Qantas Airways Ltd v Transport Workers' Union of Australia (2011) 280 ALR 503 at [380]

 5   (2013) 209 FCR 191

 6   Ibid at [87]

 7   (2004) 218 CLR 451

 8   Ibid at [36]

 9   Ibid at [36]-[38]

 10   See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19]-[20] per Gleeson CJ and Gaudron and Hayne JJ.

 11   See Acts Interpretation Act 1901, s.33(2A)

 12   [2014] FWCFB 2042

 13   (2011) 195 FCR 74 at [83]

 14   Ibid at [40]-[44]

 15   Ibid at [39]

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