Gilding the Lily Just Part of the Game

s185 application for approval of a single-enterprise agreement, Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance [2015] FWC 1554 (6 March 2015)

When a large coal miner warned employees that failure to accept an enterprise agreement might see them unemployed, it was not engaging in behaviour which undermined the employees’ ability to genuinely agree to it, the Fair Work Commission has found.

The union with coverage of the mine tried to prevent approval of the agreement, primarily on the grounds that agreement by the workforce was not “genuine”. This was based on the union’s view that the company had threatened closure of the mine if the employees voted against the agreement.

The negotiations had been going on for a while and an earlier proposed agreement had been heavily defeated (with an 85% no vote). But the company was undaunted and as part of the second attempt, let it be known that times were tough, and a no vote might mean no work. The agreement was supported by a majority and went to FWC for approval.

At that point, the union argued, because the company exaggerated the potential consequences, then the employees could not have made a properly informed decision. In effect, the union was arguing that the employees had been threatened with the sack if they voted ‘no’ so how could their consent be “genuine” as required by the Act.

FWC dismissed this notion outright, making it plain the employer had not intimidated the employees, who had a choice and were not misled. FWC said it was common knowledge the industry was experiencing difficult economic conditions.

This case demonstrates two things; firstly, that employers can apply the pressure too in negotiations, and secondly, just how far some well-resourced unions will go to thwart the making of an agreement which is not to its liking, regardless of the fact the employees concerned voted for it. It highlights the problem facing employers who think they have a deal, only to find they have to go to the trouble and expense (as well as endure uncertainty) to defend the process at the formal approval stage.