Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Leighton Contractors Pty Ltd
[2009] FWA 543
•7 OCTOBER 2009
[2009] FWA 543 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Leighton Contractors Pty Ltd
(B2009/10727)
SENIOR DEPUTY PRESIDENT CARTWRIGHT | SYDNEY, 7 OCTOBER 2009 |
Proposed protected action ballot by employees of Leighton Contractors Pty Ltd.
[1] The CEPU applied under s.437 of the Fair Work Act 2009 for a protected action ballot order applying to maintenance workers employed by Leighton Contractors Pty Ltd at the Eastern Distributor and Cross City Tunnel sites.
[2] The application was heard on 1 October 2009. It was apparent from the proceedings and the application itself that the CEPU had complied with the requirements of ss.437, 438 and 440 in making the application.
[3] While Leighton Contractors Pty Ltd (Leighton) raised objections on specification in the application of the group of employees to be balloted and the question to be put, as a result of discussions the CEPU amended, by leave, its application to satisfy the employer’s objections on those issues.
[4] The question to be determined at hearing was whether Fair Work Australia is satisfied in accord with s.443(1) that the “applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.” Leighton argued that, on the basis of evidence, Fair Work Australia could not be so satisfied and accordingly no protected ballot order could issue.
[5] The CEPU’s application was accompanied by a signed statement from Daniel Weizman, Organiser. Prior to hearing, Leighton filed a signed Affidavit with six attachments from Robert Smith, NSW Operations Manager. Mr Smith’s Affidavit put at issue matters covered by Mr Weizman’s statement. While Mr Smith’s Affidavit and Leighton’s opposition to the protected action ballot order sought put at issue the contents of Mr Weizman’s Statement, he was not made available for cross-examination or otherwise called to give sworn evidence in rebuttal of Mr Smith’s Affidavit, on which Mr Smith was cross-examined. The result of Mr Smith’s sworn evidence and cross-examination is that doubt must exist as to whether the CEPU has been, and is, genuinely trying to reach agreement with Leighton.
[6] This is a case where the CEPU may well have been able to establish that it has been, and is, genuinely trying to reach an agreement with Leighton as required by s.443, but has not discharged its evidentiary onus.
[7] Accordingly, Fair Work Australia is not able to be satisfied as required by s.443(1) and therefore must not issue the order sought (s.443(2)).
[8] The application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr A McKinnon for CEPU
Ms V Leeds for Leighton Contractors Pty Ltd
Hearing details:
Sydney
2009
1 October
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