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

[2011] FWA 8085

[2011] FWA 8085

FAIR WORK AUSTRALIA

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 Support Pty Ltd
(B2011/3452)

COMMISSIONER BOOTH BRISBANE, 25 NOVEMBER 2011

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

[1] This decision relates to an application made under s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed on 22 November 2011. The CEPU seeks a protected action ballot order in relation to employees of BCS Infrastructure Support Pty Ltd (Employer).

[2] At the hearing before me on the 23 November 2011, Ms Kerry Inglis appeared for the CEPU and Ms Jacinta Lane appeared for the Employer.

RELEVANT LEGISLATION

[3] In considering whether or not to issue a protected action ballot order I must apply s.443 of the Act which provides as follows:-

“443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

STATUTORY REQUIREMENT FOR A PROTECTED ACTION BALLOT ORDER TO BE MADE

[4] Section 437 requires that the Tribunal make a protected action ballot order when certain content and related requirements are satisfied and the applicant is genuinely trying to reach agreement.

[5] The CEPU and the Employer agreed that the content and related matters have been met and for reasons outlined below, the Tribunal agrees.

[6] The CEPU is a bargaining representative for the employees who will be covered by the proposed enterprise agreement as required by s.437(1) and the agreement is not a greenfields or a multi-enterprise agreement.

[7] In accordance with the requirement in s.437(3) the application specifies the groups of employees who are to be balloted and the questions to be put to the employees including the nature of the proposed industrial action. The questions to be put are certain and identify the nature of the industrial action.

[8] Pursuant to s.440 the applicant gave a copy of the application to the employer within 24 hours and likewise notification was provided to the Australian Electoral Commission within the required time.

[9] There is no enterprise agreement covering the employees to be balloted therefore s.438(1) does not apply.

[10] The CEPU and the Employer do not agree that the CEPU has been genuinely trying to reach agreement.

[11] Ms Lane on behalf of the Employer suggested that the CEPU, in particular Mr Garry Rogers, who was the organiser who bargained with the employer on behalf of the CEPU and its members, failed to communicate with Ms Nicky Beuker, the HR Manager for approximately 3 weeks. She submitted that this indicated that the CEPU was not genuinely trying to reach an agreement.

[12] In a statement and further examination-in-chief Mr Rogers said:-

● Negotiations for an agreement occurred at meetings that had been held between August and October 2011.
● No meetings were held unless Mr Jeff Barden who is the Australian Pacific Manager organises and authorises them.
● Additionally Ms Nicky (Beuker) attends from New Zealand.
● There is an in-principle agreement on a significant range of clauses for the agreement however there is disagreement about wage increases, the terms of the agreement, incorporation of award conditions and public holiday provisions.
● He has attended all the negotiation meetings with the employers except for two meetings.

[13] In cross-examination Mr Rogers was questioned about the timing and the lack of a response to an offer of a further meeting with Ms Beuker.

[14] Mr Rogers agreed for possibly 3 weeks there were no email exchanges with Ms Beuker but during that time there were discussions continuing between delegates and the Australian Pacific Manager, Mr Barden. Further, there were current negotiations about further meetings.

[15] The Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia 1outlined the correct approach as to whether the applicant has been genuinely trying to reach an agreement.

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s. 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s. 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to

any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”

[16] This case was quoted with approval in Maritime Union of Australia v Fremantle Port Authority 2 by Commissioner Williams who went on to say:-

“In my view, it is not the correct approach to only consider the applicant’s actions at a narrow point in time, effectively in isolation, and ignore all that has gone before and after.........”

[17] In this matter while it may be the case that for 3 weeks Mr Rogers did not respond to emails, before and after that, negotiations were proceeding.

[18] In any event during that same time, Mr Rogers’ evidence was that negotiations did continue between delegates and Mr Barden.

[19] On the material before this Tribunal, based on the evidence and submissions, I have concluded that the applicant was genuinely trying to reach agreement.

[20] The final matter for consideration is whether there are exceptional circumstances that justify the period of written notice being longer than 3 working days. This matter was ultimately not pursued. There is no evidence of exceptional circumstances, the written notice period of 3 days that is set out in s.414(2)(a) applies.

[21] As all of the requirements for the protected action ballot have been met a protected action ballot order must be made, an appropriate order will now be issued.

COMMISSIONER

 1   [2009] FWAFB 368

 2   [2009] FWA 1129

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