Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Stowe Australia Pty Ltd
[2022] FWC 1963
•25 JULY 2022
| [2022] FWC 1963 |
| 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
Stowe Australia Pty Ltd
(B2022/691)
| COMMISSIONER P RYAN | SYDNEY, 25 JULY 2022 |
Proposed protected action ballot of employees of Stowe Australia Pty Ltd
Introduction
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is a bargaining representative in relation to a proposed enterprise agreement that will cover certain employees of Stowe Australia Pty Ltd (Stowe).
On 15 July 2022, the CEPU made an application pursuant to s.437 of the Fair Work Act 2009 (Cth) (FW Act) for a protected action ballot order in relation to certain employees of Stowe. In accordance with Rule 31 of the Fair Work Commission Rules 2013, the application was accompanied by a Form F34B Declaration of Mr Stewart Edward, CEPU Organiser and draft order.
On 18 July 2022, the Respondent filed an objection to the application, contending that the protected action ballot order cannot be made as the Commission cannot be satisfied, as required by s.443(1)(b) of the FW Act, that the CEPU has been, and is, genuinely trying to reach an agreement with Stowe in relation to the employees who are to be balloted. Stowe also objects to two of the proposed ballot questions.
Following a conference on 20 July 2022, the matter was heard before me on 21 July 2022.
Witness statements were tendered from the following persons:
CEPU: Stewart Edward, CEPU Organiser (Exhibit A2);
Benjamin Mills, Electrical Supervisor/Leading Hand employed by Stowe and CEPU Delegate (Exhibit A1);
Stowe:David Bradshaw, South Coast Branch Manager employed by Stowe (Exhibit R1).
Mr Edward and Mr Bradshaw were required for cross examination.
For the reasons that follow, I am satisfied that the requirements of s.443(1) of the FW Act have been met and that a protected action ballot order must be made.
Order Sought
Prior to the hearing on 21 July 2022, the CEPU filed an amended draft order[1] as follows:
1.PROTECTED ACTION BALLOT TO BE HELD
The CEPU is to hold a protected action ballot of employees of Stowe Australia Pty Ltd.
2.NAME OF PERSON AUTHORISED TO CONDUCT THE BALLOT
The ballot is to be conducted by the Australian Electoral Commission.
3.GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED
In accordance with s.437(5) of the Act, the employees to be balloted are those employees of Stowe Australia Pty Ltd who are members of the CEPU and are non-salaried employees of the Wollongong and Nowra Division, who would be subject to the proposed enterprise agreement and are currently covered by the Stowe Australia Pty Ltd – Wollongong and Nowra Enterprise Agreement 2016, for whom the CEPU is the bargaining representative.
4. DATE VOTING CLOSES
30 working days from the date of this Order.
5.QUESTIONS
“In support of reaching an enterprise agreement with your employer, do you endorse the taking of protected industrial action by CEPU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the actions set out below:
1.An unlimited number of stoppages of the performance of work for the duration of 30 minutes?
Yes [ ] No [ ]
2.An unlimited number of stoppages of the performance of work for the duration of 1-hour?
Yes [ ] No [ ]
3.An unlimited number of stoppages of the performance of work for the duration of 2-hours?
Yes [ ] No [ ]
4.An unlimited number of stoppages of the performance of work for the duration of 4-hours?
Yes [ ] No [ ]
5.An unlimited number of stoppages of the performance of work for the duration of 8-hours?
Yes [ ] No [ ]
6.An unlimited number of stoppages of the performance of work for the duration of 12-hours?
Yes [ ] No [ ]
7.An unlimited number of stoppages of the performance of work for the duration of 24-hours?
Yes [ ] No [ ]
8.An unlimited number of indefinite or periodic bans on the performance of overtime?
Yes [ ] No [ ]
9.An unlimited number of indefinite or periodic bans on attending after hours call outs?
Yes [ ] No [ ]
10.An unlimited number of indefinite or periodic bans on the performance of High Voltage (HV) Switching?
Yes [ ] No [ ]
11.An unlimited number of indefinite or periodic bans on the performance of live work?
Yes [ ] No [ ]
11.An unlimited number of indefinite or periodic bans on Testing and Fault Finding on Energised (Live) Electrical Equipment including isolation and verification of isolation testing, initial energisation and commission testing, testing of RCD’s, testing circuits, and testing and fault finding.
12.A ban on the performance of work during lunch breaks?
Yes [ ] No [ ]
Relevant Legislative Provisions
Section 437 of the FW Act provides as follows:
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi‑enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i)are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii)are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
Section 438 of the FW Act provides as follows:
438 Restriction on when application may be made
(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).
(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.
Section 443 of the FW Act provides as follows:
443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
Factual Background
The current enterprise agreement, the Stowe Australia Pty Ltd – Wollongong and Nowra Enterprise Agreement 2016[2] was approved by the Fair Work Commission on 23 January 2017[3] and has a nominal expiry date of 22 January 2021.
On 15 November 2021, Stowe issued a notice of employee representational rights to the employees to be covered by the proposed enterprise agreement.[4]
It is not in dispute that the CEPU is a bargaining representative for the proposed enterprise agreement.
Following both parties proposing dates for a meeting, the first bargaining meeting between the CEPU and Stowe took place on 9 December 2021.[5]
On 20 December 2021, Stowe provided the CEPU with a proposal for a new agreement.[6]
On 21 December 2021, Stowe proposed the next meeting to take place on 11, 12 or 13 January 2022.[7]
On 31 January 2022, the CEPU provided the CEPU’s log of claims to Stowe and proposed a meeting on 7 February 2022.[8]
On 11 February 2022, Stowe provided a response to the CEPU’s log of claims and proposed meeting dates of 17 February, 23 February or 6 March 2022.[9]
On 21 February 2022, the CEPU provided a response to Stowe’s proposal for a new agreement and proposed a meeting on 2 March 2022.[10]
On 1 March 2022, the CEPU provided a response to Stowe’s response of 11 February 2022 regarding the CEPU’s log of claims. Stowe also provided a response to the CEPU’s response to Stowe’s proposal for a new agreement and cancelled the meeting scheduled for 2 March 2022 because it required more time to review and consider the CEPU’s response and did not want its employees driving from Nowra to Wollongong in extreme weather conditions. Stowe proposed the next meeting to occur on 8, 15 or 17 March 2022.[11]
On 7 March 2022, the CEPU confirmed availability to meet on 17 March 2022.[12]
On 16 March 2022, the CEPU provided a response to Stowe’s response of 1 March 2022.[13]
On 23 March 2022, the CEPU provided a copy of a proposed agreement.[14]
On 28 March 2022, the CEPU and Stowe exchange correspondence by email regarding the status of negotiations and the next meeting.[15]
On 4 April 2022, Stowe provided the CEPU with a proposed enterprise agreement.[16]
On 6 April 2022, the parties agreed to meet on 12 April 2022.[17]
On 9 April 2022, the CEPU cancelled the meeting set down for 12 April 2022 due to Mr Edward contracting COVID-19.[18]
On 11 April 2022, Stowe advised the CEPU that it was not available to meet until the first week of May 2022 due to the Easter school holidays and the unavailability of key personnel.[19]
On 28 April 2022, the CEPU requested details regarding the timing of employee meal breaks the purposes of arranging meetings with the employees.[20]
On 5 May 2022, the CEPU met with Stowe employees at its Nowra depot.[21]
On 12 May 2022, the CEPU met with Stowe employees at its Wollongong depot.[22]
On 17 May 2022, Stowe proposed the next meeting to take place on 27 May 2022.[23]
On 26 May 2022, the CEPU provided Stowe with a response to Stowe’s proposed enterprise agreement.[24]
On 27 May 2022, the second bargaining meeting between the CEPU and Stowe took place.[25] During the meeting, the CEPU requested an updated copy of the proposed enterprise agreement with the agreed changes identified in mark-up.[26]
On 6 June 2022, the CEPU provided Stowe with a copy of minutes that it took at the second bargaining meeting held on 27 May 2022.[27]
On 8 June 2022, the third bargaining meeting between the CEPU and Stowe took place.[28] Following the third bargaining meeting, correspondence was exchanged between Mr Edward and Mr Scott Gandy of Stowe regarding matters that arose in the third bargaining meeting and each party agitating their respective position in relation to the negotiations.[29]
Between 21 June 2022 and 6 July 2022, there were several email communications exchanged between the CEPU and Stowe in relation to the next meeting date, which the parties agreed would be 12 July 2022. Furthermore, on at least two occasions in the email communications, the CEPU queried the status of the draft enterprise agreement in mark-up that it had previously requested.[30]
On 8 July 2022, Mr Edward and Mr Bradshaw had a telephone discussion during which Mr Bradshaw advised that two options in relation to the site allowance would be discussed at the meeting on 12 July 2022. Mr Edward repeated his request for a copy of the proposed enterprise agreement in mark-up.[31]
On 12 July 2022, the fourth bargaining meeting between the CEPU and Stowe took place.[32] Stowe provided a document setting out an overview of agreed items and provided two options for major project construction.[33]
On 12 July 2022, and following the fourth bargaining meeting, the CEPU met with employees at Stowe’s Wollongong depot.[34]
On 13 July 2022, the CEPU met with employees at Stowe’s Nowra depot.[35]
On 13 July 2022, the CEPU sent email correspondence to Stowe stating that it was still considering options relating to major project construction, provided a response in relation to some definitions and repeated its request for a copy of the proposed enterprise agreement with changes in mark-up.[36]
On 15 July 2022, the CEPU filed the application for the protected action ballot order.
On 18 July 2022, Stowe filed its objection to the application for the protected action ballot order.
On 19 July 2022, Stowe provided the proposed enterprise agreement to the relevant employees, along with an explanatory summary, notification of the time and place of the vote, and the voting method.[37]
On 20 July 2022, the Commission held a conference with the parties.
On 21 July 2022, the CEPU filed an amended draft order and a statement of Benjamin Mills[38] in response to concerns raised by Stowe regarding live work. Mr Mills’ evidence, which was unchallenged, describes the nature of live work which sets out the nature of the live work performed by Stowe which includes fault finding, voltage testing and testing circuits to ensure they are de-energised as part of isolating a circuit prior to carrying out work.
Summary of Submissions
Both the CEPU and Stowe filed written submissions, which were supplemented with oral submissions during the hearing.
CEPU
The CEPU submitted s.443(1) of the FW Act mandates that a protected action ballot order must be made if the two condition precedents are satisfied, namely that a valid application has been made, and the Commission is satisfied that the CEPU is genuinely trying to reach an agreement with the employer of the employees to be balloted.
The CEPU submitted that it is not in dispute that a valid application under s.437 of FW Act has been made.
With reference to the relevant authorities, the CEPU submitted that the evidence of Mr Edward[39] amply establishes that the CEPU is genuinely trying to reach an agreement with Stowe.
Furthermore, the CEPU submitted that having led evidence from Mr Edward demonstrating that the CEPU is genuinely trying to reach an agreement, the evidentiary onus shifts to Stowe to demonstrate why such evidence should not be accepted. In this respect, the CEPU submitted the evidence of Mr Bradshaw supports a finding that the Commission can be satisfied that the CEPU is genuinely trying to reach an agreement with Stowe.
In relation to Stowe’s ballot questions objection, the CEPU submitted with reference to relevant authorities, that subject to the questions describing the industrial action in such a way that employees are capable of responding to them, the Commission is required to include them, and it is not the role of the Commission to exercise any evaluative or subjective judgment, or otherwise interfere with the drafting of the questions.
Stowe
Stowe accepts that a valid application pursuant to s.437 of the FW Act has been made.
Stowe objects to the application for a protected action ballot order on the basis that the CEPU is not genuinely trying to reach an agreement. In support of its objection, Stowe contends:
· That agreement has been reached in relation to a number of claims, but a significant area of dispute between the parties is in relation to wage rates, with the CEPU seeking a wage increase of 15.5%;
· The CEPU has either refused to respond to a meeting, refused to attend meetings, or cancelled meetings without an adequate responses;
· The CEPU has failed to respond to requests for a further meeting following the fourth bargaining meeting on 12 July 2022; and
· The CEPU has not responded to, and is still considering, the two options presented by Stowe at the fourth bargaining meeting on 12 July 2022; and
· That there is no evidence to suggest or imply that Stowe is engaging in conduct that is inconsistent with the good faith bargaining requirements.
Stowe submits, with reference to relevant authorities, that the application for a protected action ballot order is premature as the CEPU is yet to respond to the options presented on 12 July 2022.
Stowe further submitted that the application for a protected action ballot order will be disruptive to the positive flow and progress of discussions for a proposed enterprise agreement and that it appeared to be a membership drive by the CEPU.
In relation to the ballot questions, Stowe objected to questions 9 and 11 on the basis that there would be a risk to the health and safety of its employees and members of the public if protected industrial action of that nature was taken.
Consideration
I have had regard to all of the evidence and the submissions of the parties. I found that each of the witnesses attempted to assist the Commission and I have generally accepted the evidence of each witness.
There is no dispute, and I am satisfied, that an application pursuant to s.437 of the FW Act has been made:
· By a bargaining representative for a protected action ballot order (s.437(1));
· In relation to an enterprise agreement that is not a greenfields agreement or a multi-enterprise agreement (s.437(2));
· After the notification time (s.437(2A));
· That specifies the group of employees, the questions to be put to the employees who are to be balloted, and the nature of the proposed industrial action (ss.437(3) and (5)); and
· That was accompanied by the required declaration and draft order (s.437(6)).
The issue in this matter is whether the CEPU has been, and is, genuinely trying to reach an agreement.
Genuinely trying to reach an agreement
In Total Marine Services Pty Ltd v Maritime Union of Australia[40] (Total Marine), the Full Bench stated:
[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.
[footnotes omitted]
The Full Bench in Esso Australia Pty Ltd v AMWU & Ors[41] made the following observations about paragraphs [31] and [32] of Total Marine:
[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad).
[footnotes omitted]
In relation to whether a bargaining representative is genuinely trying to reach an agreement, in J.J. Richards & Sons Pty Ltd v Fair Work Australia[42] (J.J. Richards), Flick J held:
58. It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant ... is ... genuinely trying to reach an agreement with the employer” unless:
· an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and
· the employer has foreshadowed – even in the most general of terms – its attitude as to the proposed agreement.
More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:
· bargaining to have commenced within the meaning of and for the purposes of s 173, found within Part 2-4, of the Fair Work Act.
59. So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement ...”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” – on one approach to construction – perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement – let alone genuinely tried to reach agreement.
The parties have been bargaining over a period of about eight months. Throughout this period, both parties have provided each other with a log of claims and responded to each other’s log of claims.
In responding to claims, both parties have indicated acceptance, rejection or proposed a modified position. In some instances, clarifying questions were asked and answers provided.[43]
In addition to the log of claims documents, Stowe provided a draft proposed enterprise agreement and the CEPU provided a response with comments and proposed amendments.
Against the factual background of claims and responses set out above, I do not accept Stowe’s contention that the application for a protected action ballot order is premature.
I do not accept Stowe’s contention that the CEPU’s claim of a 15.5% wage increase is indicative of the CEPU not genuinely trying to reach an agreement. Mr Edward gave evidence that the proposed increase will do no more than provide a level of wage rates that is within the range relevant to the work performed and the market within which Stowe operates, working from what the CEPU claims is currently a low base. Furthermore, the evidence of Mr Edward and Mr Bradshaw was consistent in that the CEPU is continuing to consider Stowe’s options regarding wage rates.
I do not accept Stowe’s contention that the CEPU has unreasonably refused to attend or cancelled meetings. The evidence reveals that there were times when both parties were unable to attend meetings for different reasons which included the Christmas/January holiday period, Easter/school holiday period, illness, inclement weather, and the unavailability of key personnel. Furthermore, it is clear on the evidence that despite no bargaining meeting being held between 9 December 2021 and 27 May 2022, the parties were exchanging documents setting out their respective claims and responses.
I do not accept Stowe’s contention that the CEPU has failed to respond to requests for a further bargaining meeting following the bargaining meeting held on 12 July 2022. There is simply no evidence to support that contention.
I do not accept Stowe’s contention that Stowe’s compliance with the good faith bargaining requirements acts as some form of bar against the CEPU making an application for a protected action ballot order. Stowe’s compliance or otherwise with the good faith bargaining requirements has no bearing on whether the CEPU is genuinely trying to reach an agreement with Stowe. Further, Stowe’s contention seeks to import an additional requirement or condition into the operation of s.443(1) of the FW Act. The Full Court of the Federal Court made it clear in J.J. Richards that there is no basis for the introduction of additional requirements or conditions.[44]
In weighing up the evidence and submissions, I am satisfied that the CEPU is genuinely trying to reach an agreement with Stowe in relation to the employees who are to be balloted.
While Stowe’s submission that issuing the protected action ballot order will disrupt the positive flow and progress of discussions is not a basis to refuse an application for a protected action ballot order, that the parties have been engaging in a manner that is put as positive and progressing can only be supportive of my findings that the CEPU has been, and is, genuinely trying to reach an agreement with Stowe.
Stowe’s objection to ballot questions
In relation to Stowe’s objection to ballot questions 9 and 11, I accept the submission of the CEPU that the questions posed in the amended draft order describe the nature of the proposed industrial action and are capable of being responded to by the employees who are to be balloted.[45]
I reject Stowe’s objection that ballot questions 9 and 11 be excluded on the basis that there would be a risk to the health and safety of its employees and members of the public if protected industrial action of that nature was taken. In the event that the balloted employees support the taking of such action, and the CEPU gives notice of such action to be taken, it is open to Stowe to make an application pursuant to s.424 of the FW Act seeking the suspension or termination of the protected industrial action.
Conclusion
I am satisfied that the CEPU has made an application pursuant to s.437 of the FW Act for a protected action ballot order. I am also satisfied that the CEPU has been, and is, genuinely trying to reach an agreement with Stowe in relation to the employees who are to be balloted.
It follows that a protected action ballot order must be made pursuant to s.443(1) of the FW Act.[46]
An order PR744169 will be issued with this decision.
COMMISSIONER
Appearances:
Mr A Jacka for the Applicant.
Ms J Camden and Ms L Howe of The National Electrical Contractors Association for the Respondent.
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
21 July.
[1] The amendment relates to question 11 and was filed in mark-up format.
[2] AE423115.
[3] Stowe Australia Pty Ltd T/A Stowe Australia [2017] FWCA 472.
[4] Exhibit R1 at [4].
[5] Exhibit R1 at [5].
[6] Exhibit R1 at [5], Annexure 1.
[7] Exhibit R1 at [5].
[8] Exhibit A2 at [17], Annexure SE1; Exhibit R1 at [5], Annexure 2.
[9] Exhibit R1 at [5], Annexure 3.
[10] Exhibit A2 at [20], Annexure SE2; Exhibit R1, Annexure 4
[11] Exhibit A2 at [24], Annexures SE3, SE4; Exhibit R1 at [5], Annexure 5.
[12] Exhibit A2 at [25]; Exhibit R1 at [5].
[13] Exhibit A2 at [26], Annexure SE6; Exhibit R1 at [5], Annexure 6.
[14] Exhibit A2 at [28]; Exhibit R1 at [5], Annexure 7.
[15] Exhibit R1 at [5], Annexure 8.
[16] Exhibit A2 at [30]; Exhibit R1 at [5], Annexure 9.
[17] Exhibit A2 at [29]; Exhibit R1 at [5].
[18] Exhibit A2 at [31].
[19] Exhibit A2 at [32].
[20] Exhibit A2 at [33].
[21] Exhibit A2 at [34].
[22] Exhibit A2 at [35].
[23] Exhibit R1 at [5].
[24] Exhibit A2 at [36], Annexure SE7; Exhibit R1 at [5], Annexure 10.
[25] Exhibit A2 at [37]; Exhibit R1 at [5].
[26] Exhibit A2 at [38].
[27] Exhibit A2 at [39], Annexure SE8; Exhibit R1 at [5], Annexure 11.
[28] Exhibit A2 at [40]; Exhibit R1 at [5].
[29] Exhibit A2 at [41]-[43], Annexure SE9; Exhibit R1 at [5], Annexure 12.
[30] Exhibit A2 at [43]-[46], Annexures SE10 and SE11; Exhibit R1 at [5].
[31] Exhibit A2 at [47].
[32] Exhibit A2 at [48]; Exhibit R1 at [5].
[33] Exhibit R1 at [5], Annexure 13.
[34] Exhibit A2 at [50].
[35] Exhibit A2 at [51].
[36] Exhibit A2 at [53], Annexure SE12.
[37] Exhibit A2 at [57], Annexures SE15 and SE16.
[38] Exhibit A1.
[39] Exhibit A2 and the Form F34B Declaration.
[40] [2009] FWAFB 368.
[41] [2015] FWCFB 210.
[42] [2012] FCAFC 53.
[43] See Exhibit A2, Annexure SE6; Exhibit R1, Annexure 3.
[44] J.J. Richards at [33] per Jessup J (with whom Tracey J agreed).
[45] See Transport Workers’ Union of Australia v Prosegur Australia Pty Ltd[2021] FWCFB 1562 at [31]-[33].
[46] J.J. Richards at [69] per Flick J (with whom Tracey J agreed).
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