Construction, Forestry, Maritime, Mining and Energy Union v Built Pty Limited

[2020] FWC 7038

[2020] FWC 7038

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
Built Pty Limited
(B2020/835)

DEPUTY PRESIDENT CROSS SYDNEY, 23 DECEMBER 2020

Proposed protected action ballot of employees of Built Pty Limited.

Introduction

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) is a bargaining representative in relation to a proposed enterprise agreement that will cover certain employees of Built Pty Limited (Built). On 16 December 2020, the CFMMEU made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of Built who are members of the CFMMEU, and who would be subject to the proposed enterprise agreement.

[2] Built opposes the application on the basis that the CFMMEU has not been, and is not, genuinely trying to reach an agreement with Built, with the consequence that one of the pre-conditions to making a PABO which is found in s.443 of the Act has not been satisfied.

[3] The matter was listed before me for conference and directions on Friday 18 December 2020. A compressed timetable for the filing of materials was agreed by consent, and the matter was listed for Hearing on Tuesday 22 December 2020. At the conclusion of that Hearing I advised the parties that I had formed the view that the CFMMEU was genuinely trying to reach an agreement with Built, and as such would issue the PABO. I further indicated that the reasons for my decision would be provided within 48 hours. This decision is the statement of those reasons.

Legislative Scheme

[4] The requirements that relate to a protected action ballot are set out in Part 3-3, Division 8 of the Act. A PABO will only be made on application by a bargaining representative of an employee who will be covered by a proposed enterprise agreement (the Proposed Agreement). It is common ground that the CFMMEU is a bargaining representative for the Proposed Agreement of at least some of the employees who will be covered by the Proposed Agreement. It is also not in dispute that the nominal expiry date of the current agreement, the Built Pty Limited/CFMMEU Collective Agreement 2017 – 2018 (the Existing Agreement), has passed.

[5] A PABO may only be made in limited circumstances, and the Commission must make an order, if it is satisfied that:

(a) there has been an application made under section 437; and

(b) the applicant (in this case the CFMMEU) has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.  1

[6] There is no dispute that the CFMMEU has made a valid application under s.437 of the Act, and the CFMMEU maintains that it has been and is genuinely trying to reach an agreement with Built. The New South Wales Secretary of the CFMMEU, Mr Darren Greenfield submitted a Statutory Declaration supporting the application in which he deposed that the CFMMEU is genuinely trying to reach an agreement with Built. The only issue between the parties is whether the CFMMEU has been, or is now, genuinely trying to reach an agreement with Built.

Factual Background

[7] The Existing Agreement was approved by the Fair Work Commission on 10 January 2018, and had a nominal expiry date of 31 December 2018. The Existing Agreement applies to approximately seventy-two (72) employees of Built employed in New South Wales in the classifications contained in Appendix B to the Existing Agreement.

[8] On 25 September 2019, the CFMMEU EBA Assistant Mel Deacon emailed Mr Stephen Boss, National Director of Built, providing a s.179 disclosure, enterprise agreement data form and enterprise agreement data kit.

[9] On 20 December 2019, Mel Deacon on behalf of Mr Greenfield emailed Mr Boss, attaching a proposed enterprise bargaining agreement titled the “Built Pty Ltd / CFMEU Collective Agreement 2019-2022” (the First CFMMEU Proposed Agreement). The email stated that the CFMMEU would contact Built to arrange a meeting to discuss the First CFMMEU Proposed Agreement.

[10] On 12 February 2020, pursuant to s.176(1) of the Act , Mr Boss issued a letter to the Master Builders Association of NSW (MBA) appointing Brian Seidler or Peter Glover (both of the MBA) as Built's bargaining representative in negotiations with the CFMMEU for the Proposed Agreement.

[11] On 24 March 2020, Mr Seidler wrote to Mr Greenfield on behalf of a number of building industry contractors (including Built), proposing to delay the formal bargaining of new enterprise bargaining agreements due to the impacts of COVID-19. On 25 March 2020, Mr Greenfield responded to the MBA's letter accepting a suspension of bargaining for a period of four weeks.

[12] On 17 July 2020, Mr Seidler wrote to Mr Greenfield to inform him that the building contractors represented by the MBA NSW (including Built), intended to recommence formal bargaining. That correspondence enclosed a peer reviewed Quantity Surveyor's Report from MBMpl Pty Ltd and Tracey Brunstrom and Hammond Pty Ltd, which indicated the cost and time impacts on projects in New South Wales as a result of the First CFMMEU Proposed Agreement.

[13] On 5 August 2020, Mr Boss sent a letter to Mr Greenfield which noted Built's intention to recommence formal bargaining and proposing dates and times for the first bargaining meeting. Also on 5 August 2020, Mr Boss received a letter from Mr Greenfield in which he agreed to recommence bargaining and agreed to an in-person formal bargaining meeting to be held on 2 September 2020.

[14] On 11 August 2020, Mr Boss wrote to Mr Greenfield requesting that the CFMMEU provide an updated draft enterprise agreement for the purposes of the bargaining, as Mr Boss had become aware that a number of other building industry contractors had been provided with updated draft agreements. On 12 August 2020, Mr Boss received an email from Ms Rita Mallia, President of the CFMMEU, stating that there were no more recent draft than the First CFMMEU Proposed Agreement issued to Built on 20 December 2019.

[15] On 14 August 2020, Mr Boss wrote to Mr Greenfield regarding proposed meeting dates, and noting that due to personal reasons and annual leave commitments he proposed to reschedule the meeting, previously scheduled for 2 September 2020, to the week commencing 14 September 2020.

[16] On 19 August 2020, Ms Mallia wrote to Mr Boss seeking a meeting on or after 14 September 2020, and requesting a meeting with construction workers at 7.00am on 2 September 2020. It was subsequently agreed that the meeting scheduled to occur on 14 September 2020, would occur on 15 September 2020.

[17] On Friday, 11 September 2020, Ms Mallia sent an updated enterprise agreement (the Second CFMMEU Proposed Agreement) which contained amendments to the First CFMMEU Proposed Agreement.

[18] On 15 September 2020, a meeting occurred attended by Mr Greenfield, Ms Mallia and other members of the CFMMEU, and Mr Boss, Mr Seidler and Mr Glover, to bargain for a proposed enterprise bargaining agreement. Mr Boss confirmed that Built's Board had rejected the First CFMMEU Proposed Agreement on the basis that the agreement contained, amongst other things, wage increases of over 5% per year that were said to be unsustainable, and a fixed RDO calendar which would result in Built construction sites being shut down every second Monday.

[19] On 15 September 2020, Mr Boss emailed Mr Greenfield and Ms Mallia attaching a copy of the slides that he referred to during the bargaining meeting that day, together with a draft enterprise bargaining agreement (the First Built Proposed Agreement), which was very similar to the Existing Agreement with respect to the RDO calendar and its terms, and contained other changes including additional increases to wage rates. Mr Boss asked the CFMMEU to respond to the First Built Proposed Agreement and indicated that Built would review the Second CFMMEU Proposed Agreement noting that the review could take a number of weeks as it would include a presentation to the Built Board.

[20] On 29 September 2020, Mr Greenfield wrote to Mr Boss in response to Built's letter of 15 September 2020 letter. In his letter, Mr Greenfield maintained the CFMMEU's previous demands for a fixed RDO Calendar and wage increases of 5% per year as being justified. That letter also advised that after considering all of the circumstances, the delay in reaching agreement with Built, and the CFMMEU’s view about Built's capacity, in addition to maintaining the entirety of the CFMEU's claim outlined in the Second CFMMEU Proposed Agreement, the CFMMEU provided a further amended log of claims which included increasing the overtime meal allowance and ACIRT, increasing paid family violence leave, and seeking to reduce the heat policy trigger point from 35 degrees to 32 degrees.

[21] On 16 October 2020, Mr Boss wrote to Mr Greenfield responding to a number of the matters that were raised in the CFMMEU’s 29 September letter. Mr Boss requested that Mr Greenfield provide evidence that the 5% wage increase sought by the CFMMEU was justified and sustainable. In the correspondence, Mr Boss responded to the Second CFMMEU Proposed Agreement, rejected the balance of the amended log of CFMMEU claims contained in the CFMMEU’s 29 September letter, and requested that Mr Greenfield consider the First Built Proposed Agreement and provide the CFMMEU's response.

[22] On 28 October 2020, the CFMMEU held an unpaid meeting with Built's employees outside their normal working hours.

[23] On 29 October 2020, Mr Boss wrote to Mr Greenfield and again requested that he provide a response to the First Built Proposed Agreement.

[24] On 30 October 2020, Mr Greenfield wrote to Mr Boss in the following terms:

RE: Current EBA negotiations

We refer to your correspondence dated 29 October 2020.

In relation to your reference to a meeting with your CWs, the CFMEU is not obliged to inform you of a meeting held with its members outside of work hours.

In respect of a response from the CFMEU on Built’s offer I refer you to our letter of 29 September 2020 which clearly sets out the views of your employees. That view has not changed.

[25] Around 30 October 2020, Built updated the First Built Proposed Agreement to incorporate certain provisions proposed by the CFMMEU (the Second Built Proposed Agreement), which was sent to the CFMMEU on 2 November 2020 in a letter sent to Mr Greenfield. Mr Boss attached the Second Built Proposed Agreement and informed Mr Greenfield that he would be requesting Built's employees to vote to approve the Second Built Proposed Agreement.

[26] On 2 November 2020, Mr Greenfield wrote to Mr Boss stating that the CFMMEU had responded to the First Built Proposed Agreement by way of the 29 September CFMMEU Letter; requesting that the CFMMEU's name and logo be removed from the Second Built Proposed Agreement; and requesting that the CFMMEU be allowed to attend any meeting held between Built and its employees.

[27] On 3 November 2020, Mr Boss responded to Mr Greenfield’s letter of 2 November 2020, stating that it was Built's view that the CFMMEU had failed to respond in any considered way to Built's proposed agreement. Mr Boss also communicated that the company agreed to remove the CFMMEU name and logo from the Second Built Proposed Agreement and noted that the CFMMEU had no entitlement to attend the discussion meeting with Built's employees as it was not a bargaining meeting.

[28] On 5 November 2020, Built's employees attended an Employee Discussion Meeting at which the terms of the Second Built Proposed Agreement were discussed. On 13 November 2020, Built's employees voted not to approve the Second Built Proposed Agreement.

[29] On 14 December at 10:30am, Ms Mallia sent Mr Boss an updated proposed agreement (the Third CFMMEU Proposed Agreement).

[30] On 15 December 2020 at 7.11am, Ms Mallia sent a further email to Mr Boss which attached a further updated proposed agreement (the Fourth CFMMEU Proposed Agreement). Ms Mallia summarised the changes from the Third CFMMEU Proposed Agreement within the body of her email as follows:

"Slightly further amended as I missed some internal numbering:

•  Appendix I- amended the heading of the last column to say 1/07/2022 & 1/07/2023 for the avoidance of doubt

•  Appendix J- Clause 3 amended to say "The provisions of Clauses 27.3, 27.4 and 27.5 of the Agreement apply with the following exceptions:".

•  Appendix K-Amended 1st line to say "This Appendix applies to identified projects in accordance with Clause 27.6 of the Agreement"."

[31] On 16 December 2020, the CFMMEU applied for a PABO with respect to Built.

[32] In addition to the statutory declaration of Mr Greenfield, statements were filed and read from both Mr Greenfield and Mr Boss. Mr Greenfield was not required for cross-examination on either his statutory declaration or statement, and Mr Boss was only briefly cross-examined in relation to his statement.

Submissions of the CFMMEU

[33] The CFMMEU noted that in determining whether an Applicant has and is genuinely tried to reach an agreement, “all the circumstances” 2 must be considered. There was not a great deviation between the parties on the facts, but eight factors were submitted to satisfy the fact that the CFMMEU were genuinely trying to reach agreement. They were:

(a) That the CFMMEU had provided the First CFMMEU Proposed Agreement to Built, and there had been a long hiatus between the commencement of bargaining and the application for the PABO;

(b) That the CFMMEU had provided the three further CFMMEU Proposed Agreements to Built, the most recent iterations being the third on 14 December 2020, with minor variations on 15 December 2020, in the Fourth CFMMEU Proposed Agreement;

(c) The CFMMEU had made concessions on various issues, with the most recent concession being a reduction in the rostered days off claim from 18 to nine days;

(d) The CFMMEU had been flexible regarding meeting times, and had accommodated Mr Boss’ unavailability on 2 September 2020, by re-scheduling the meeting to 15 September 2020;

(e) Mr Boss and Mr Greenfield had discussed the Proposed Agreement a number of times in “one on one” meetings;

(f) Contrary to the assertions of Built, the CFMMEU had provided justification for the wage increases it sought;

(g) The sheer volume of correspondence between the parties was indicative of the parties, and the CFMMEU in particular, genuinely trying to reach agreement; and

(h) The convening of a paid meeting of employees was indicative of genuine attempts to reach agreement. The meeting involved Mr Greenfield meeting employees to establish bargaining priorities.

Submissions of Built

[34] Built disputed that the sheer volume of correspondence between the parties was indicative of the CFMMEU genuinely trying to reach agreement, and directed attention to the contents of that correspondence. Built also sought to draw attention to the timing of various correspondence from the CFMMEU as exhibiting an absence of genuineness. Examples of such timing were:

(a) The Second CFMMEU Proposed Agreement, which contained substantial amendments to the First CFMMEU Proposed Agreement, being provided to Built on Friday 11 September 2020, when the bargaining meeting was scheduled for Tuesday 15 September 2020. That timing was said to have the effect of preventing Built having a reasonable opportunity to respond to the Second CFMMEU Proposed Agreement at the Bargaining Meeting.

(b) Built noted that on 15 September 2020, it had written to the CFMMEU stating:

All,

Please find attached a copy of today’s presentation in addition to Built’s proposed EBA. Please note that any reference to changing the heat policy has been removed – as discussed in the meeting.

We look forward to your response.

As discussed Built will review the revised CFMMEU draft agreement issued on the 11th September and will respond accordingly. This process will include a presentation to Built’s Board thus we envisage it could take a number of weeks.

Built submitted that from the time of that correspondence the CFMMEU was aware that consideration of proposals would involve consideration by Built’s Board that could take a number of weeks

(c) The advised response time of Built’s Board informed the unreasonableness of the CFMMEU’s actions in sending the Third CFMMEU Proposed Agreement on 14 December 2020, then sending the Fourth CFMMEU Proposed Agreement on 15 December 2020, and finally filing the application for a PABO on 16 December 2020. The action on successive days was said to bespeak a lack of genuineness

[35] Built noted that the Second CFMMEU Proposed Agreement of 11 September 2020 was said to have changes from the First CFMMEU Proposed Agreement highlighted, however not all changes were highlighted.

[36] Built submitted that the CFMMEU had not responded to repeated requests to justify the 5% per annum wage rises sought. In conclusion, Built submitted that the application for a PABO was premature.

Consideration

[37] In JJ Richards & Sons Pty Ltd v Fair Work Australia 3 (JJ Richards), the Full Court of the Federal Court considered whether a protected action ballot order under s.443(1) of the Act could be made even though bargaining between an employer and employees had not commenced. The Full Court rejected the proposition that s.443 should be construed in a way that required bargaining to have commenced, and made general observations as to the operation of s.443(1) of the Act. In particular, Flick J held:

“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 Pt 2-4 of the Fair Work Act.

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.”

[38] The materials relied upon by the CFMMEU, being Mr Greenfield’s statutory declaration and statement, clearly establish that the CFMMEU is genuinely trying to reach an agreement with Built in the negotiations for the Proposed Agreement. The CFMMEU has clearly articulated, in a number of iterations, the actual terms of the agreement it seeks. The CFMMEU has also responded generally to the positions advanced by Built.

[39] Such responsiveness is exhibited in the CFMMEU’s correspondence to Built of 29 September 2020, regarding the justification for 5% per annum pay increases. The CFMMEU wrote, in part:

The CFMEU writes in relation to the enterprise agreement negotiations, following our meeting on 15 September 2020 and our meeting with your CWs for whom we are the bargaining representative.

Firstly, in response to your presentation, our view is that you are taking a far too pessimistic view of the economic situation and failing to highlight some of the positive signals in the economy more generally such as:

- More positive unemployment results.

- Retail spending has recovered quickly, and is now higher than it was before the pandemic started (despite a small decline in August because of the VIC lockdowns).

- Business profits actually increased during the pandemic.

- New building approvals grew by 12% from June through July. Approvals are recovering quickly. Lend Lease Property CEO Kylie Rampa was quoted in an article the Australian Financial Review dated 23 September 2020 as saying residential property markets have proven resilient and “…there will be pent up demand in the residential sectors as you come out of a Covid environment with different parts of the market having some very strong fundamentals behind them, driving strong results”

- Interest rates are near zero. This will stimulate construction investment in both the residential and non-residential sectors.

- According to an article in Finance News dated 23 September 2020, it was reported that Australian Share market has rebounded- “investors feeling more optimistic about a rapid recovery after the government announced a $5.4million upgrade to the NBN and major banks tipped the RBA to cut rates on October 6” and further it was reported that a rate cut would “boost the economy by encouraging businesses to borrow and invest more”.

2

- Commonwealth and state governments have committed to expanding their support for construction (including subsidies for private home building and renovations, and more importantly big investments in public infrastructure), and that will speed the recovery.

- Construction will continue to be a vital driver of the Australian economy. CBUS has committed $950 million dollars in investment in the industry, including $49 million in affordable housing and in June 2020 this year. The combined industry funds have committed $19.5 billion in investment which will support the creation of 200 000 jobs.

- The reality is that in NSW construction has continued constantly through the COVID-19 period and there are many projects in the pipeline.

Further, according to the Reserve Bank of Australia:

“it has become apparent that the short-run direct effects of the pandemic from activity restrictions were smaller than was assumed.” P.90 of their latest Monetary Policy Report, RBA expects very strong GDP growth (4-5%) in 2021 and 2022, as the economy comes out from the pandemic (see p.91 of the above link). They also point to the importance of public investment in supporting the recovery: “Public investment is forecast to increase over coming years, supported by ongoing expenditure on existing transport infrastructure projects and recent government announcements of fast-tracked projects.” (p.94).

Even the RBA has commented on the need for real wages to increase to help boost economic activity.

Therefore, there is another side to the economic story and it is not all doom and gloom especially for the construction industry which will be a major driver of economic activity post COVID-19.

In respect of your claim that Built CWs already earn high wages, we reject any assertion that they are therefore not entitled to their full wage claim. It is not clear from your analysis of the earnings you refer to on page 9 of your presentation how you arrived at your figures and what the earnings compromise of, however, to earn for example $200 000 per year taking into account current CW3 Trade rate, productivity and average level of site allowance a CW would be working in excess of 60 hours per week. To earn $300 000 per year they would be working in excess of 80 hours per week. These are well above normal hours and probably well above what non-blue collar staff are required to work at Built. Doing these sorts of hours probably means your CWs are also not taking their RDOs when they want. Therefore it is disingenuous to claim the CWs earn sufficient, or too much, to warrant a decent wage rise. It is also irrelevant to compare your CW employees to nurses, teachers and ambulance workers. It’s not an argument that because one set of employers feel the need to deprive their staff of decent wage increases, Built should be permitted to do the same.

The CFMEU has consulted with your CWs and they have unanimously endorsed the log of claims made by the CFMEU on their behalf.

The CFMEU claim for 2.5% per six months is justified and sustainable and rewards your employees for the long hours and arduous work that they do. This claim is maintained”

[40] To say that the CFMMEU had not responded to repeated requests to justify the 5% per annum wage rises sought is incorrect. While Mr Boss 17 days later in his correspondence of 16 October 2020, again requested that Mr Greenfield provide evidence that the 5% wage increase sought by the CFMMEU was "justified and sustainable", it is unremarkable that Mr Greenfield simply referred Mr Boss to the response contained in the letter of 29 September 2020.

[41] I also consider that the timeframes for consideration of, and response to, proposals by the CFMMEU to be indicative of attempts to genuinely try and reach agreement. One particular instance where Built claimed such timeframes were lacking, and indicative of no genuine attempt to find agreement, was the period between the Second CFMMEU Proposed Agreement, which was provided to Built on Friday 11 September 2020, and the bargaining meeting was scheduled for Tuesday 15 September 2020. While Mr Boss stated that he had prepared for the bargaining meeting based on responding to the First CFMMEU Proposed Agreement, and had not had an opportunity to consider the Second CFMMEU Proposed Agreement before that meeting, I find it difficult to understand how the National Director of Built cannot read and consider a draft marked up (albeit incorrectly) agreement in at least 48 hours.

[42] I also disagree with Built’s assertion that it is reasonable for it to insist on timeframes that allow weeks for its Board to consider and respond to proposals. The Existing Agreement applies to approximately seventy-two employees of Built employed in New South Wales, and I would expect the Proposed Agreement to have similar coverage. With that number of employees being indicative of the size of Built’s operation, I would expect a more prompt level of responsiveness in bargaining.

[43] Regarding Built’s criticism of the Third CFMMEU Proposed Agreement and the Fourth CFMMEU Proposed Agreement being less than 24 hours apart, it is clear that the Fourth CFMMEU Proposed Agreement involved only minor changes to the text of the Third CFMMEU Proposed Agreement. In her email, Ms Mallia summarised the changes from the Third CFMMEU Proposed Agreement as follows:

"Slightly further amended as I missed some internal numbering:

•  Appendix I- amended the heading of the last column to say 1/07/2022 & 1/07/2023 for the avoidance of doubt

•  Appendix J- Clause 3 amended to say "The provisions of Clauses 27.3, 27.4 and 27.5 of the Agreement apply with the following exceptions:".

•  Appendix K-Amended 1st line to say "This Appendix applies to identified projects in accordance with Clause 27.6 of the Agreement"."

[44] Notwithstanding the minor nature of the changes between the Third CFMMEU Proposed Agreement and the Fourth CFMMEU Proposed Agreement, Mr Boss deposed in his statement dated 21 December 2020, that “given the limited time available, I have not had an opportunity to properly review or consider this draft”. I again find it difficult to understand how the National Director of Built cannot read and consider a draft marked up agreement in seven days. Mr Boss makes a similar claim of an inability to review and consider the Third CFMMEU Proposed Agreement, which had six identified variations from the Second CFMMEU Proposed Agreement.

[45] Finally, I reject Built’s submission that the application for a PABO, being filed approximately 48 and 24 hours respectively after the Third CFMMEU Proposed Agreement and the Fourth CFMMEU Proposed Agreement, is “premature”. As the Full Court of the Federal Court made clear in JJ Richards, there is no basis for the introduction of additional requirements or conditions into the operation of s.443 of the Act. Built’s submission effectively seeks to impose a requirement that the CFMMEU wait, presumably weeks for Built’s Board to consider the Fourth CFMMEU Proposed Agreement, before it can seek a ballot. There is no basis to impose such requirement on the CFMMEU, and it is contrary to the terms of s.443.

[46] Protected action 4, and more particularly employee claim action5, are legislated tools available to employees seeking proposed enterprise agreements. Provided such employees are genuinely trying to reach agreement, and appropriate application is made, a ballot for such action must be ordered.

Conclusion

[47] For the reasons above I issued the PABO on 22 December 2020.

DEPUTY PRESIDENT

Appearances:

Mr R Reitano of Counsel, instructed by Mr B Kruse for the Applicant

Mr G Goot and Mr B Rauf of Counsel, instructed by Mr B Austin for the Respondent

Hearing details:

2020
Sydney
22 December 2020

Printed by authority of the Commonwealth Government Printer

<PR725817>

 1   S.443(1) of the Act

 2   Total Marine Services Pty Ltd v Maritime Union of Australia (2009) 189 IR 407, at [31].

 3 (2012) 201 FCR 297.

 4   s.408 of the Act.

 5   S.409 of the Act.