ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – application for a bargaining order – on 16 February 2017 the applicant (Mr Ferguson) filed an application for bargaining orders in relation to the bargaining for a new enterprise agreement (New Agreement) to replace the Swan Transit Enterprise Agreement 2012 (Current Agreement) which notionally expired on 23 April 2016 (First Application) – on 28 February 2018, Mr Ferguson filed a second application for bargaining orders in relation to the bargaining for the New Agreement (Second Application) – the parties to the Current Agreement are Swan Transit Services P/L (Swan Transit), Swan Transit Services (South) P/L (STS) and Transit Systems WA t/a Transit Riverside Limited (TSWA) and the employees engaged by Swan Transit, STS and TSWA to primarily drive buses (Drivers) – the Current Agreement covers the Transport Workers’ Union of Australia (TWU) – Mr Ferguson filed both the First Application and the Second Application (Ferguson Applications) in his capacity as a bargaining representative of twelve of the Drivers – Swan Transit is one of three companies, the others being STS and TSWA, sharing the same shareholders and management, which operate bus services in Perth for the Public Transport Authority under various bus service contracts – the three companies employ approximately 840 drivers: 383 are employed by Swan Transit, 331 by STS, and 126 by TSWA – Swan Transit commenced bargaining with employee bargaining representatives on 5 February 2016 – 24 bargaining meetings held with the employee bargaining representatives and Swan Transit between 5 February 2016 and 24 February 2017 – proposed New Agreement was put up for approval on 6-8 June 2016 and another version put up for approval on 23-24 November 2016 – both versions of the proposed New Agreement received a majority of no votes from the Drivers – Mr Ferguson became an Employee Bargaining Representative in January 2017 and attended his first bargaining meeting on 10 February 2017 – Mr Ferguson has attended three meetings since – these meeting were held on: 13 February 2017, 20 February 2017 and 24 February 2017 – after the second bargaining meeting he attended and before the third Mr Ferguson filed the First Application – according to Swan Transit, Mr Ferguson did not serve the First Application on Swan Transit until 21 February, the day after the third bargaining meeting he had attended was held – at the bargaining meeting held on 24 February 2017, the majority of the bargaining representatives agreed to send the New Agreement to a ballot vote – Mr Ferguson filed the Second Application on 28 February 2017 and served it on Swan Transit the same day – Mr Ferguson asserted that he gave notice to Swan Transit that he had concerns that Swan Transit were not bargaining in good faith by way of a letter that he distributed by hand at the bargaining meeting held on 13 February 2017 – Swan Transit asserted that it has met, and continues to meet, the good faith bargaining requirements and that it has responded appropriately to Mr Ferguson’s concerns – Commission not satisfied that putting an agreement to ballot, when doing so is opposed by a minority of bargaining representatives who represent a small minority of the workforce, constitutes conduct in breach of the good faith bargaining requirements – held that evidence did not suggest that Swan Transit or the TWU was not genuinely engaged in the bargaining process – Commission not satisfied that one or more of the bargaining representatives have not met, or are not meeting, the good faith bargaining requirements. Ferguson v Swan Transit Services (South) P/L
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