ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – applicant union made application for bargaining order in relation to bargaining with respondent employer for new enterprise agreement – order sought ballot being conducted to approve agreement be set aside so further negotiations could occur – first ballot conducted resulted in agreement not being made – only 44.5% of staff voted in ballot – following unsuccessful ballot respondent asked Workplace Consultative Committee (WCC) to speak to staff about why they had not voted – applicant alleged respondent acted capriciously or engaged in unfair conduct that undermined freedom of association or collective bargaining by not meeting with the bargaining representatives or negotiating with them over content of agreement after first ballot – applicant not advised of changes made to agreement prior to being submitted to second ballot – not advised why second ballot process different to first – claimed respondent not meeting good faith bargaining requirements – respondent argued request for WCC to speak to staff not unreasonable – Commission determined compliance with requirements to provide written notice to relevant bargaining representatives and providing reasonable time to respond to concerns not necessary given proximity of application to ballot closure date – application for bargaining order made properly – found respondent’s refusal to attend meeting before second ballot did not amount to failure to bargain in good faith – that applicant and other bargaining representatives not advised of second ballot or of changes to agreement not evidence of capricious conduct on part of respondent and did not undermine freedom of association – that respondent did not wish to enter into further negotiations in respect of rates of pay and length of agreement not capricious conduct and did not undermine freedom of association – referred to Explanatory Memorandum guidance on ‘refraining from capricious or unfair conduct’ – not convinced respondent’s conduct fell within classes of conduct set out – also not convinced conduct fell within dictionary definition – respondent did not change mind, as might fall within definition of capricious conduct – found no bargaining occurred between first and second ballot and no complaint of conduct of respondent prior to first ballot – respondent did not act in way designed to undermine freedom of association or collective bargaining – application for bargaining order dismissed. Health Services Union v Goodwin Aged Care Services Limited t/a Goodwin
