The Case

LCR Mining Group Pty Ltd (LCR) and the Construction, Forestry, Mining and Energy Union (CFMEU) had met a number of times in person to negotiate an enterprise agreement. They then had a dispute as to how future meetings should occur. LCR wanted to conduct future meetings by teleconference or video conference, while the CFMEU insisted on face-to-face meetings at Newcastle Airport.

The Verdict

At first instance, Commissioner Saunders of the Fair Work Commission (FWC) granted the CFMEU’s application for bargaining orders. The commissioner found that the requirement in section 228(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) to attend and participate in meetings at reasonable times “requires the participants in the meeting to be present in person”.

On appeal, the Full Bench of the FWC took a different view. It held that a “meeting of the minds” did not require a “meeting of the bodies” and that such a restrictive view in this digital age would mean meetings could not occur by phone or video.

The Lesson

Employers are permitted to insist that bargaining negotiations are conducted in an efficient manner that is most productive for the business. This means that for larger employers operating in different areas, e.g. interstate, meetings can be held by phone or by video.

It is important to remember that the obligation to meet (regardless of the method used), means more than simply responding in writing to a union’s claims.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.