Commission derails union’s push for EBA at Hunter Operations

By: Paul Howell


Fair Work Commission says there is no point forcing Hunter Operations back to the negotiating table.

Commission derails union’s push for EBA at Hunter Operations
The TWU began enterprise bargaining negotiations with Hunter Operations in February last year.

 

The Transport Workers Union’s (TWU’s) bid for an enterprise agreement with small transport operation Hunter Operations has been derailed.

The company looks likely to stick with its existing arrangements after pulling out of disjointed negotiations that date back to February last year.

The TWU applied for a bargaining order from the Fair Work Commission (FWC) that would have forced Hunter to carry on.

But while the commission agreed with the union’s argument that the company had indeed begun the negotiations (and would therefore usually be required to continue the process), other missed protocols meant a legal agreement was unlikely to ever be reached.

The application rested on the extent of authority, and perceived authority, of Hunter’s former New South Wales state manager Stuart Poppleton.

He had been leading most of the wider Hunter Group in NSW, reporting to the CEO Mark Hunter, when he first began meeting with the TWU on conditions at the Hunter Express workplace in the Sydney suburb of Villlawood.

While Hunter argued Poppleton did not have the authority to negotiate an enterprise agreement, FWC vice president Adam Hatcher disagreed.

"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," he says.

Negotiations began to break down at the end of April 2013, when Hunter met with both Poppleton and the TWU representatives. 

The FWC heard that Hunter advised at that point that the company did not want to enter into negotiations for agreements and that the existing modern award and General Carriers Determination offered sufficient arrangements for the workplace.

Hatcher ruled that while authorities at Hunter may not have been fully aware that the company was entering into negotiations for a workplace agreement, that was still what was happening.

Still, that potentially unconscious participation meant another important aspect of the bargaining process was missed.

Employers are required to provide notice to all employees when they are entering a bargaining process.

They need to advise each of the employees to be covered by the eventual agreement of their right to be represented.

Formal notification is required to be made within 14 days of the beginning of negotiations. No such notification was provided by Hunter Operations.

Hatcher says this effectively voided all negotiations that had so far been completed.

"It is clear that unless a valid notice is issued, any subsequently-negotiated enterprise agreement will not be capable of approval," he says.

As such, he chose not to force Hunter back to the negotiating table.

"I am not satisfied that it would be reasonable in all the circumstances to make a bargaining order," he points out.

"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."

The TWU says it will now consult with its members in a bid to prove majority support to restart the process.

"We welcome the finding by the Fair Work Commission that Hunter Operations breached good faith bargaining requirements by refusing to meet with TWU members and officials," NSW secretary Wayne Forno says. 

"We know that in Australia’s most dangerous industry, truck drivers who have a union agreement have safer systems at work, as well as better pay and conditions."

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