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

[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

In this matter before the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought approval for a protected action ballot by employees of Lend Lease Infrastructure Services Pty Ltd. The dispute centred around the nature and timing of the proposed industrial action, including the form the ballot would take and the period over which it would be conducted. The employees were concerned about their working conditions, including pay and hours, and sought to exercise their right to take protected industrial action to address these concerns.

The legal issues that arose from this application involved the interpretation and application of the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the proposed ballot complied with the procedural and substantive requirements for protected action. This included ensuring that the ballot was conducted in good faith, that it was not misleading or deceptive, and that it did not unfairly prejudice the employer's business operations. The Commission also needed to consider whether the proposed timing and duration of the ballot were reasonable and necessary to achieve the employees' objectives.

In its decision, the Commission considered the evidence presented by both parties and the relevant legal principles. The Commission determined that the proposed ballot complied with the requirements of the Fair Work Act. The ballot was found to be conducted in good faith, with a clear and accurate description of the proposed action. The timing and duration of the ballot were considered reasonable and necessary to address the employees' concerns effectively. The Commission concluded that the proposed ballot met the necessary criteria for approval and granted the Union's application.

As a result of the Commission's decision, the Union was authorised to conduct the proposed ballot among the employees of Lend Lease Infrastructure Services Pty Ltd. The Commission's approval was contingent on the ballot being conducted in accordance with the terms and conditions specified in the decision. The employer was also granted certain rights, including the right to object to the ballot if it believed it would cause significant prejudice to its business operations.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established