The decision comes as a result of Endeavour Coal appealing the March 22 ruling by the full bench of FWA in a case between Endeavour and the Association of Professional Engineers, Scientists and Managers, Australia.

The Federal Court concluded that the good faith bargaining requirements had a wider operation than Endeavour had argued.

It said it would make meaningless the good faith bargaining requirements if a party to bargaining either did not participate with the objective of ultimately reaching agreement, if possible and did not participate in the bargaining process in “good faith” and in a genuine process of “give and take”, including, if appropriate, the putting forward of matters which it tentatively might indicate could possibly be included in an “enterprise agreement” if other requirements or conditions could be agreed upon.

“This Federal Court decision provides guidance for the first time about what good faith bargaining means and that an employer, once a majority support determination has been made, needs to approach bargaining with a view of ultimately reaching agreement,” APESMA collieries staff division director Catherine Bolger said.

“Crucially, the Federal Court has also ruled that a bargaining representative may be seen as falling short, if there is a failure to put forward for consideration a proposal or a counterproposal or suggested terms which may be acceptable.

“We now have clear decisions from both the Federal Court and Fair Work Australia as to what constitutes good faith bargaining.

“It is now time for Appin to listen to the courts and its staff and quickly reach an enterprise agreement.”

A spokesperson for BHP Billiton told ILN: “Illawarra Coal acknowledges the decision handed down by the Federal Court in respect to matters at our Appin mine.

“The company is currently undertaking a detailed evaluation of the decision and looks forward to continuing to work with our Appin employees.”

On July 8, 2010, FWA made a majority support determination that acknowledged 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 Endeavour Coal was not bargaining in good faith and the case would need to proceed to hearing.

On January 4, 2012, FWA found Endeavour Coal 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 to take steps to promote bargaining.

Endeavour Coal subsequently launched an appeal to the decision, leading to the finding on March 22 that it had not bargained in good faith.