Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BOC Limited

[2012] FWA 7897

[2012] FWA 7897

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
BOC Limited
(B2012/1513)

COMMISSIONER CLOGHAN PERTH, 12 SEPTEMBER 2012

Proposed protected action ballot by employees of BOC Limited.

[1] On 22 August 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 BOC Limited (“the Employer”) and are represented by the CEPU in bargaining for a replacement enterprise agreement to the BOC Limited (Perth Operations Canning Vale) Enterprise Agreement 2010 (“the Agreement”).

[3] The nominal expiry date of the Agreement is 31 August 2012.

[4] The application was heard on 24 August 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 (PR528362). 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, CEPU. The Employer was represented by Ms M Mallott, Ashurst Australia.

[6] Mr Reeve gave evidence of his role in negotiation for a replacement enterprise agreement for the Agreement.

[7] Mr Reeve gave evidence of five (5) formal bargaining meetings commencing on or around 5 July 2010. In addition, there were informal meetings.

[8] The CEPU tabled, in evidence, its log of claims, the Employer’s response and minutes of the various bargaining meetings.

[9] Mr Reeve set out the main differences which continued to exist following the bargaining meetings.

[10] The Employer did not oppose the application subject to an undertaking being placed on transcript regarding any protected industrial action. Ms Ireland gave the following undertaking:

“The union and its members undertake that the following will be exempt from any industrial action: the supply of essential medical products and emergency medical products to medical facilities, including but not limited to hospitals and medical surgeries, and the supply of oxygen and nitrogen to the Royal Australian Air Force; that the union and its members shall not oppose, obstruct or place bans or limitations on (a) any activity associated with, or (b) any employees or contractors of the employer engaged in the filling, sorting, loading and/or distribution of the products outlined above.”

CONCLUSION

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

[12] Having considered the relevant provisions of the FW Act, the CEPU’s submissions, evidence and the Employer’s position 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 PR528362 on 24 August 2012.

COMMISSIONER

Appearances:

N Ireland for the CEPU.

M Mallott on behalf of the Employer.

Hearing details:

2012:

Perth,

24 August.

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