Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Programmed Electrical Technologies Ltd

[2015] FWC 4003

[2015] FWC 4003

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Programmed Electrical Technologies Ltd
(B2015/572)

DEPUTY PRESIDENT GOSTENCNIK SYDNEY, 16 JUNE 2015

Proposed protected action ballot of employees of Programmed Electrical Technologies Ltd.

[1] This is an edited version of the ex tempore decision delivered in transcript on Wednesday 10 June 2015. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application under s.437 of the Fair Work Act 2009 (Cth) (the Act) for the making of a protected action ballot order in relation to a number of employees who are employed by Programmed Electrical Technologies Ltd (Respondent). The Respondent opposes the application principally on the basis that the CEPU has not and is not genuinely trying to reach agreement with it. The basis of the objection is that the CEPU did not properly respond to or give reasons for rejecting the Respondent's offer for an agreement set out in correspondence dated 29 May 2015.

[2] The Respondent does not object on the basis that there has not been a proper application made and I am satisfied that an application by a bargaining representative, namely the CEPU, has been made. The question whether the CEPU, as bargaining representative, has been and is genuinely trying to reach agreement requires an assessment of all the circumstances pertaining to the bargaining and it is not solely or exclusively concerned with whether a bargaining representative is or has been meeting its good faith bargaining obligations or, more properly, the good faith bargaining requirements.

[3] The evidence in this matter, which is set out principally in the statutory declaration of Mr. Geoff Borenstein of the Applicant, which is marked exhibit ‘CEPU2’ together with its annexures, sets out the history of the negotiations. It seems clear that in 2014 much of the negotiations that took place occurred on a multi-employer basis but since at least April 2015 there have been separate meetings between the CEPU and the Respondent together with, on some occasions, the employer's bargaining representatives at which bargaining for a proposed agreement took place.

[4] According to the written material, constituting notes of meetings which were produced as annexures to CEPU2, both parties during those discussions made particular concessions but ultimately an agreement could not be reached. Mr. Borenstein gave evidence that the response given to the Respondent’s final proposal on 29 May 2015 was given without discussing the terms of the proposed agreement with the employees that would be covered by the proposed agreement.

[5] Mr. Borenstein explained in his evidence that there had been detailed negotiations about a proposed agreement on 7 May 2015, 12 May 2015 and most recently on 18 May 2015. He also explained that, in his view, the terms of offer of 29 May 2015 were not in any material effect different to the matters that were discussed during the aforementioned bargaining meetings.

[6] In his evidence, Mr. Ray Buckley of the Respondent accepted that there was no material difference in the terms of the offer to that which had been discussed in the previous meetings, and neither Mr. Buckley nor the submissions of Ms. Alexandra Van Den Brink of the National Electrical and Communications Association acting on behalf of the Respondent could point to any provision in the draft agreement constituting the final offer which would shed new light on the totality of the offer made.

[7] Mr. Borenstein's evidence was that the substance of the Respondent's position, as articulated in the previous bargaining meetings, had been discussed with the employees who would be covered by the agreement subsequent to the meeting on 18 May 2015 and that the CEPU as a bargaining representative was given instructions to reject that position and to maintain the position that it had held to that point in the bargaining.

[8] The evidence of Mr. Borenstein, as indicated in the documents attached to his statutory declaration, also indicated that the reasons for the CEPU's position in relation to each of the matters that was discussed was explained more recently, as indicated in the attachment marked ‘1’ to exhibit CEPU2. The CEPU summarised its position in relation to each of the matters or at least the substantial matters that constituted the Respondent’s position in its composite document on 29 May 2015.

[9] There is little doubt that there are some significant issues between the parties, not least of which is the making of an agreement which is compliant with a construction industry code that is presently before the Commonwealth parliament and which has the potential to impact upon this employer if enacted. Nevertheless, it seems to me, looking at the totality of the evidence, that the CEPU is not breaching, and has not breached, the good faith bargaining requirements and has given sufficient responses to each of the matters that the Respondent seeks to agitate in its proposed agreement.

[10] In any event, even if such a breach occurred on 1 June 2015, it had been rectified by the enunciation of the CEPU's position in attachment 1 to exhibit CEPU2 and, in those circumstances, such breach as might have occurred is technical only and not one involving real substance.

[11] Even if I am wrong about these conclusions, I am satisfied nevertheless that having regard to the totality of the evidence and the steps that have been taken to further this agreement, including during conferences before me, that the CEPU, notwithstanding any minor breach of the good faith bargaining requirements, is genuinely trying to reach an agreement and has done so in the past with this employer.

[12] For the reasons given in Esso v AMWU[2015] FWCFB 2010 and particularly at paragraphs [16] to [18] thereof, the fact that a party may not meet a particular good faith bargaining requirement does not automatically result in a conclusion that a party is not genuinely trying to reach agreement or that it has not in the past genuinely sought to do so. The whole of the circumstances of bargaining needs to be examined.

[13] In the circumstances, I am satisfied based on the material before me that the CEPU has been and is genuinely trying to reach an agreement with the Respondent. I am also satisfied that a valid application has been made under s.437 of the Act. Consequently, I am required to issue a protected action ballot order in relation to the proposed agreement. An order to that effect has separately been issued in PR568246. The order is self-executing and the ballot will be conducted by the Australian Electoral Commission.

DEPUTY PRESIDENT

Appearances:

Mr. G Borenstein and Ms L. Weber for the Applicant

Ms. A Van Den Brink for the Respondent

Hearing details:

Melbourne

10 June

2015

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