ENTERPRISE BARGAINING – bargaining order – s.229 Fair Work Act 2009 – application by Construction, Forestry, Mining and Energy Union (CFMEU) for bargaining order against Oaky Creek Coal P/L (OCCPL) in relation to employees employed at Oaky North Underground Coal Mine (Mine) – CFMEU members constituted all production employees at the Mine and covered by Oaky Creek North Mine Enterprise Agreement 2012 with nominal expiry date of 1 June 2015 – CFMEU and OCCPL have been bargaining for replacement enterprise agreement since May 2015 – CFMEU members commenced protected industrial action in May 2017 – since 20 July 2017, OCCPL implemented employer response action and locked employees out – Mine continued to operate with staff and employees of contractors – OCCPL put proposed agreement to employees in late July, which was rejected as only two employees voted to approve – after result of ballot known, CFMEU withdrew notices of protected industrial action for 15 and 16 July and employees reported for work – upon return to work, swipe cards did not operate and employees directed to remove CFMEU branded shirts previously permitted to be worn – employees also informed they were not permitted to wear those shirts in future – from 17 to 19 July, employees resumed protected industrial action and on 18 July, OCCPL issued letters to 21 employees alleging breaches of policy relating to conduct engaged in on the picket line – five employees also issued letters alleging breaches of social media policy – CFMEU asserted the issuing of allegation letters to be capricious or unfair conduct as it undermined freedom of association and collective bargaining – further asserted that using contract security personnel to take surveillance of CFMEU members and by withdrawing permission for employees to wear CFMEU clothing onsite to be capricious or unfair conduct – Commission found it was objectively capricious or unfair for OCCPL to issue employees with allegation letters in relation to their conduct – satisfied that direction by OCCPL in relation to the wearing of Union clothing was capricious – Commission held that level of security operations and their scope was unfair on basis that it was a disproportionate response to the conduct of CFMEU and its members – satisfied that the unfair or capricious conduct identified above undermined collective bargaining and freedom of association as it occurred at a critical time in the negotiations – satisfied it was reasonable in all of the circumstances to make bargaining orders – Commission issued following orders: OCCPL to withdraw direction to employees that they were no longer permitted to wear clothing associated with CFMEU; OCCPL to cease undertaking surveillance of employees other than in precincts of the Mine or engaged in any picket or other protest activity in the vicinity of the Mine; OCCPL to take no further steps in relation to allegation letters issued; and OCCPL to not rely on the investigation letters. Construction, Forestry, Mining and Energy Union v Oaky Creek Coal P/L
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