ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – application for bargaining order – applicant alleged respondent had engaged in capricious or unfair conduct that undermined freedom of association and collective bargaining – respondent decided to implement operational changes that resulted in redundancies – enterprise bargaining taking place – reason for changes was delays caused by employees taking protected industrial action – whether redundancies in the circumstances breached respondent’s good faith bargaining obligations under s.228(1)(e) of FW Act – respondent submitted decision to restructure not connected to enterprise bargaining and therefore not unfair – submitted conduct was not conduct that undermined freedom of association or collective bargaining – construction of s.228(1)(e) – Commission found the legislation does not stop an employer from making changes to its operations while protected industrial action is taking place or in response to that action provided it is not for reasons or in a manner that is inconsistent with good faith bargaining requirements or other legislative provisions – conduct for the purposes of s.228(1)(e) must have the effect or likely effect of undermining collective bargaining – conduct that is simply unfair or capricious not sufficient – Commission found restructure proposal and decision to implement it not capricious or unfair – restructure not undertaken because of industrial action or to hinder employees’ right to take industrial action or bargaining position – cannot be held to undermine collective bargaining or freedom of association. Construction, Forestry, Mining and Energy Union v Anglo Coal (Capcoal Management) P/L t/a Capcoal
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