The Fair Work Commission (FWC) has ordered an employer to refrain from holding a vote for a proposed enterprise agreement, until after it had held two meetings with a union which represented a group of its employees.

The employer issued a notice of representational rights to employees in relation to negotiating a new enterprise agreement. Apart from one union, there were no other bargaining representatives appointed.  Five months later, a group of maintenance employees sought representation from another union. The employer agreed to meet with the second union to discuss the new agreement. However, the employer did not advise the second union of its intention to put the proposed agreement to a vote prior to that meeting. The second union sought an order from the FWC to delay the vote until after it had submitted a log of claims and had at least two meetings with the employer.

The Commission held that the employer’s conduct:

  • was “capricious and unfair in that it was directly inconsistent with the reasonable understanding” the second union and its members had concerning the meeting;
  • “undermined freedom of association” by limiting the “capacity of the employees to be effectively represented by a union with coverage of their work”; and
  • “undermined collective bargaining” by denying the “bargaining representative an effective role in that bargaining process”. 

The Commission granted the bargaining order sought by the second union. However, the order was subsequently revoked on the basis that the employer and the second union agreed to negotiate a separate agreement for the maintenance workers.