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

[2013] FWC 5582

[2013] FWC 5582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Lend Lease Infrastructure Services Pty Ltd
(B2013/1074)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 AUGUST 2013

Proposed protected action ballot by employees of Lend Lease Infrastructure Services Pty Ltd.

[1] The following is an edited version of the text of the ex tempore decision delivered at the conclusion of proceedings on 31 July 2013.

[2] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (Act). The proposed ballot is to be of certain employees of Lend Lease Infrastructure Service Pty Ltd (Lend Lease) who are also members of the CEPU. It is common ground that the CEPU is a bargaining representative of these employees for the proposed enterprise agreement and that the statutory requirements that are set out in s.443(1) of the Act are met. No other preliminary matters, such as proper notice to Lend Lease or the Australian Electoral Commission, has been raised as an obstacle to the making of a protected action ballot order. Accordingly I propose to make an order as I am satisfied that the requirements of s.443(1) have been met. In particular, I am satisfied that the CEPU has been, and is genuinely, trying to reach agreement with Lend Lease.

[3] Lend Lease has raised an issue about the proper identification of the persons who are to be balloted. Section 437(3) requires that the application for a protected action ballot must specify, amongst other things, the group or groups of employees who are to be balloted. That provision is to be read in conjunction with s.437(5) which provides that the employees who are to be specified under paragraph 437(3)(a) are taken to include only employees who will be covered by the proposed enterprise agreement and represented by particular bargaining representatives, in this matter, the CEPU.

[4] The CEPU and Lend Lease are in dispute over the scope of the proposed agreement. The scope of a proposed enterprise agreement is a proper subject matter for bargaining. For present purposes Lend Lease makes a concession that one area of disputed scope, namely persons who are employed by Lend Lease to perform maintenance work in the water industry for the Yarra Valley Water, may be included in the proposed protected action ballot order. The CEPU submits that the proper description of persons who are to be balloted should include all persons who are the subject of its claim for the proposed agreement and in relation to whom it is proposed should be covered by the proposed agreement.

[5] The CEPU accepts that employees who are currently employed by Lend Lease at a site or project where there is a site or project specific enterprise agreement whose nominal expiry date has not yet passed and covers Lend Lease and those employees, should be excluded from the protected action ballot. The CEPU also accepts that employees of Lend Lease who perform work in the electrical distribution and transmission industry should be excluded from the protected action ballot. I am satisfied that the CEPU seeks a proposed agreement with a scope of coverage that is broader than that to which Lend Lease is prepared to agree. Nevertheless, I agree with the submission of the CEPU that the proper description of employees who are to be balloted should include all employees who are the subject of its claim for coverage by the proposed agreement and in relation to whom it is the bargaining representative.

[6] I will make an order which will include a term that the types of employees to be balloted are those employees of Lend Lease who are to be covered by the proposed agreement and are members of the CEPU, within the State of Victoria and performing work that falls within a classification contained in the Electrical Electronic and Communications Contracting Award 2010, but excluding any employee who is covered by an enterprise agreement whose nominal expiry date has not yet passed at a particular enterprise or project made between Lend Lease and its employees, and any employee of Lend Lease employed to perform work in the electrical distribution and transmission industry.

[7] An order [PR539656] giving effect to this decision was made on 1 August 2013.

DEPUTY PRESIDENT

Appearances

C. Larkins and S. Richards for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

V. Paul for Lend Lease Infrastructure Services Pty Ltd.

Hearing details

2013.

Melbourne:

July 30, 31.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR540059>