Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BCS Infrastructure Pty Ltd

[2012] FWA 9637

[2012] FWA 9637

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
BCS Infrastructure Pty Ltd
(B2012/2000)

COMMISSIONER CLOGHAN PERTH, 13 NOVEMBER 2012

Proposed protected action ballot by employees of BCS Infrastructure Pty Ltd.

[1] On 2 November 2012, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Applicant” or “CEPU”) made application to Fair Work Australia (FWA) for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).

[2] The employees to be balloted are employees employed by BCS Infrastructure Pty Ltd (“the Employer”) and are represented by the CEPU in bargaining for an enterprise agreement.

[3] Currently, there is no enterprise agreement between the parties.

[4] The application was heard on 5 November 2012. At the conclusion of the hearing, I made a determination that the CEPU had satisfied the provisions of the FW Act and an Order should issue (PR531064). These are the written reasons for issuing the Order.

[5] At the hearing, the CEPU was represented by Ms N Ireland, Industrial Officer. Evidence was given for the CEPU by Mr B Reeve, Organiser. The Employer did not attend the hearing.

[6] Mr Reeve gave evidence of his role in bargaining negotiations with the Employer.

[7] Mr Reeve is the principal negotiator for CEPU members employed by the Applicant seeking an enterprise agreement in Western Australia.

[8] Formal negotiations for an enterprise agreement commenced on 5 September 2012. Prior to that date, there were informal discussions between the parties.

[9] Mr Reeve provided, in evidence, communication between the parties concerning particular terms of the proposed agreement. In particular, the parties are apart on wage rates. While the CEPU is seeking what is described as “Melbourne rates”, the Employer is proposing rates that have been agreed with other “ports” around Australia in 2012. Finally, the parties are not agreed on the term of the proposed agreement.

[10] The communication demonstrates, to a large degree, that the parties understand each other’s position and a preparedness to be flexible.

[11] Finally, Mr Reeve gave evidence that he had a discussion with the Employer’s representative immediately prior to the hearing. The representative advised that it was not objecting to the order, and consequently, assumed that their attendance was not necessary.

[12] Notwithstanding the application for a protected action ballot order, the parties were continuing to meet and the CEPU was genuinely trying to reach agreement with the Employer.

CONCLUSION

[13] I am satisfied that the procedural requirements in sections 437, 438 and 448 of the FW Act have been met.

[14] Having considered the relevant provisions of the FW Act, the CEPU’s submissions, evidence and the Employer’s position as given in evidence by Mr Reeve in not opposing the application, I determined that the Applicant has been, and is, genuinely trying to reach agreement with the Employer; on these grounds, I issued Order PR531064 on 5 November 2012.

COMMISSIONER

Appearances:

N Ireland for the CEPU.

No appearance or representation by or on behalf of the Respondent.

Hearing details:

2012:

Perth,

5 November.

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<Price code A, PR531283>