Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v O'Donnell Griffin Pty Ltd
[2012] FWA 5011
•14 JUNE 2012
[2012] FWA 5011 |
|
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
O'Donnell Griffin Pty Ltd
(B2012/161)
COMMISSIONER BULL | SYDNEY, 14 JUNE 2012 |
Proposed protected action ballot by employees of O'Donnell Griffin Pty Ltd.
[1] This is an application made pursuant to 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). It seeks a protected action ballot order in relation to certain employees of O'Donnell Griffin Pty Ltd (the employer).
[2] The application was opposed by the employer.
[3] In support of the application, Mick Doust, an Organiser of the CEPU gave evidence that he had met the employer on behalf of its members to be covered by the proposed enterprise agreement on a number of occasions. The dates and nature of these negotiations were reflected in a statement prepared by Mr Doust (Exhibit CEPU 1) dated 8 June 2012.
[4] The CEPU also relied on the authority of the Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia ([2009] FWAFB 368) to assert that it had meet the test of “genuinely trying to reach agreement” as contained in s.443(1)(b) of the Fair Work Act 2009.
[5] The employer called no evidence and briefly cross examined Mr Doust, none of which went to the bona fides of the CEPU’s claim to be genuinely trying to reach an agreement with the employer.
[6] The employer submitted that it had met every request of the CEPU and was close to making an agreement. Further, that any industrial action would be detrimental to the company. The employer submitted that as such the proposed order should not be granted.
[7] The legislation as expressed at s.443(1) requires that Fair Work Australia must make a protected action ballot order if satisfied the applicant has been, and is, genuinely trying to reach an agreement with the employer.
[8] The Tribunal has nothing before it to contradict the evidence of Mr Doust regarding the history of a genuine attempt to reach an agreement with the employer.
[9] The Tribunal is not at liberty to consider at this stage of the process any detriment protected industrial action may have to the employer. The employer’s assertion that the parties are close to reaching an agreement on its face, indicates that there has been a genuine attempt to reach agreement by the applicant union.
[10] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the evidence of Mr Doust that the CEPU has been and is, genuinely trying to reach an agreement with the employer.
[11] An order [PR525075] based on the draft provided by the CEPU is issued in conjunction with this decision.
COMMISSIONER
Appearances
Mr R De La Cuadra for the CEPU
Ms E Hardaker for O‘Donnell Griffin Pty Ltd
Hearing Details
2012
Sydney
June 14
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