As a result, Appin employees had not been able to achieve an enterprise bargaining agreement for more than two years, according to the Association of Professional Engineers, Scientists and Managers, Australia.
"In these circumstances it was open to the commissioner, and appropriate on the evidence, to conclude that the good faith bargaining requirements envisioned by [legislation] were not being met by the company, in that it was not giving genuine consideration to the proposals being put by APESMA," the full bench of Fair Work Australia said in its landmark ruling.
FWA’s ruling is a major blow for companies that take little interest in proper negotiations with employees, APESMA collieries division director Catherine Bolger said.
“This ruling is significant because it is the first time FWA has addressed at length what it means to bargain in good faith,” she said.
“It recognised that companies involved in bargaining need to give genuine consideration to proposals, to be clear about their position and conduct bargaining in a fair way.
“With this result, we now hope that BHP will do the right thing and live by its corporate values and bargain in good faith.”
A spokesperson for BHP Billiton told ILN: “We are examining the details of the outcome”
In April 2010 APESMA sought to negotiate an enterprise agreement with Appin mine for a group of professional employees.
On July 8, 2010 FWA made a majority support determination that acknowledged that Appin staff did want to bargain collectively. Under the Fair Work Act 2009, once a majority support determination is made the employer is required to bargain in good faith.
In the absence of clear progress, APESMA returned to FWA, which issued a subsequent ruling in September 2011 finding that BHP was not bargaining in good faith and that the case would need to proceed to hearing.
On January 4, 2012, FWA found that BHP had not been bargaining in good faith and ordered Appin to outline what it could agree to; provide APESMA with information essential to bargaining; and take steps to promote bargaining.
BHP subsequently launched an appeal to that decision, leading to yesterday’s finding that it had not bargained in good faith.
