Construction, Forestry, Maritime, Mining and Energy Union v Boom Logistics Ltd
[2018] FWC 4122
•13 JULY 2018
| [2018] FWC 4122 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Maritime, Mining and Energy Union
v
Boom Logistics Ltd
(B2018/567)
| COMMISSIONER RIORDAN | SYDNEY, 13 JULY 2018 |
Proposed protected action ballot of employees of Boom Logistics Limited.
On 6 July 2018, the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) made an application for a Protected Action Ballot Order (PABO) in accordance with section 437 of the Fair Work Act 2009 (the Act).
The CFMMEU seeks a PABO in relation to members of the CFMMEU employed by Boom Logistics Limited (the employer) in New South Wales, except for any employee covered by a current individual agreement based transitional instrument.
The Fair Work Commission (the Commission) received correspondence from the employer on 10 July 2018, advising that it opposed the application. The application was set down for Hearing on 13 July 2018.
The employer advised the Commission late on 12 July 2018 that it was content for the matter to be determined on the papers.
The employer has raised issues in relation to the wider “scope” of the proposed Agreement in relation to the issue of notification time. In Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia[1]
[42] It is to be observed from the above, that the Act variously makes reference to a “proposed agreement” or the “proposed enterprise agreement” and “proposed single-enterprise agreement” to describe in a particular context the same concept, that is, the agreement that is being proposed by a party wishing to bargain or by one that is actually bargaining. That this is so seems to be confirmed by the Explanatory Memorandum to Fair Work Bill 2008 and its description of the use of the phrase “proposed enterprise agreement” in Parts 2-4 and 3-3 as “a generic term” [see Fair Work Bill 2008, Explanatory Memorandum at [643], and its reference to the decision in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Union (No 2) [(2004) 138 IR 362] in which French J referred to the use of the words “proposed agreement” in s 170MI of the Workplace Relations Act 1996 as a “generic term [that] allows for a variety of possibilities” [Wesfarmers at [55]]. The content of a proposed agreement need not be settled nor need the scope of a proposed agreement be agreed between the bargaining parties for that which is proposed by one party to bear the character of a proposed enterprise agreement for the purposes of the Act.
…
[46] When read in context: “a proposed enterprise agreement’ in s 438(1) seems to us to mean no more than the agreement the bargaining representative applying for an order under s 447 is proposing at the time the application for a protected action ballot order is made. It is that agreement to which the ballot will relate and it is employees represented by the bargaining representative who fall within the scope of that agreement (or a group of such employees) who will vote on questions of particular industrial action. That the Appellant does not agree with the scope of the proposed agreement or would prefer a broader scope or that the bargaining parties have bargained for a broader scope previously is, for the purpose of identifying the proposed enterprise agreement to which s 438(1) might relate, irrelevant in considering whether s 438(1) prohibits an application being made.More recently, in Australian Manufacturing Workers Union v Skilled Offshore Pty Ltd[2015] FWC 6727, the employer opposed an application for a protected action ballot order on the ground that the proposed agreement in relation to which the application related was not identified by the unions before each application was made. In rejecting that argument, Gostencnik DP usefully observed as follows:
[14] It is to be observed that the Act variously makes reference to a “proposed agreement”, or the “proposed enterprise agreement” and “proposed single-enterprise agreement” to describe in a particular context the same concept, that is, the agreement that is being proposed by a party wishing to bargain or by one that is actually bargaining. That this is so seems to be confirmed by the Explanatory Memorandum to the Fair Work Bill 2008 and its description of the use of the phrase “proposed enterprise agreement” in Parts 2-4 and 3-3 as “a generic term” 8, and its reference to the decision in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Union (No 2) [2004] FCA 1737; (2004) 138 IR 362 in which French J referred to the use of the words “propose agreement” in 170MI of the Workplace Relations Act 1996 as a “generic terms [that] allows for a variety of possibilities” (at [55]; 377-378). The content of a proposed agreement need not be settled nor need the scope of a proposed agreement be agreed between the bargaining parties for that which is proposed by one party to bear the character of a proposed agreement or proposed enterprise agreement for the purposes of the Act.
Statutory Provisions
The relevant provision of the Act in relation to this application are:
436 Object of this Division
The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.
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.
Conclusion
I am satisfied that this application has been made in accordance with section 437 of the Act. I am satisfied that the CFMMEU has been, and is, genuinely trying to reach an agreement with the employer.
As a result, the Commission, in accordance with section 443(1) of the Act, is compelled to make a PABO. The Order shall be made in the terms sought by the CFMMEU.
As Order (PR608944) will be issued separately.
COMMISSIONER
<PR608945>
[1] (2014) 241 IR 35
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