Construction, Forestry, Maritime, Mining and Energy Union v Co-Operative Bulk Handling Limited T/A CBH Group

[2019] FWC 7843

[2019] FWC 7843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Co-Operative Bulk Handling Limited T/A CBH Group
(B2019/1316)

DEPUTY PRESIDENT BEAUMONT PERTH, 18 NOVEMBER 2019

Proposed protected action ballot of employees of Co-Operative Bulk Handling Limited T/A CBH employed at the CBH Grain Terminal in Kwinana.

[1] Co-Operative Bulk Handling Limited (CBH) and the Construction, Forestry, Maritime, Mining and Energy Union (the Union) are currently bargaining for an enterprise agreement to replace the CBH Kwinana Plant Operators Collective Union Agreement 2017 1 (the Agreement). The Union has applied for a protected action ballot order pursuant to s 437 of the Fair Work Act 2009 (Cth) (the Act). This decision addresses that application and the reasons why the order sought is granted.

[2] The application was made on 14 November 2019 and relates to employees who are members of the Union and are employed, according to the Union, to perform plant operator duties at the CBH Grain Terminal in Kwinana.

[3] CBH opposed the application on the basis that the Union had not and was not (as at the time of the application), genuinely trying to reach agreement. Further, regarding the draft order and the ballot questions listed, CBH contended that the types of protected industrial action at questions 11 and 12, did not clearly specify the question or questions which would be put to employees who would be balloted if the application was granted.

[4] However, by email dated 17 November 2019, the parties informed Chambers that they had reached an agreement on the matters that were the subject of CBH’s objections. Part of that agreement included revised wording for proposed ballot questions 11 and 12 in the draft order that had accompanied the application. That wording is as follows:

11. An unlimited number of bans on the performance of duties to in-load grain, including rail grid operators, road grid operators, annex operators, samplers, control room operators and front end loader operators but excluding hygiene operators, dust truck operators, turn and checks (intra-silo movements), pest control duties, 7th floor rover (checks), laboratory duties and boat duties.

12. An unlimited number of bans on the performance of duties to out-load grain including control room operator, sampler duty, authorised operators, gallery rover duties, bulk head out-loading (stacker operator and sampler) but excluding hygiene operators, dust truck operators, turn and checks (intra-silo movements), pest control duties, 7th floor rover (checks), laboratory duties and boat duties.

[5] It is not in dispute that the Union:

a) is a bargaining representative and is entitled to make the application;

b) had made a proper application as required by the Act and met the documentary and notice requirements for the application; and

c) is not prevented from bringing the application by virtue of s 438 of the Act, given the nominal expiry of the Agreement.

[6] I am satisfied that the threshold requirements set out in the Act have been met.

[7] Having considered the submissions of both the Union and CBH, the contents of the draft order received by Chambers on 14 November 2019, and the subsequent rewording of ballot questions 11 and 12, I am satisfied that the statutory requirements have been met. An order 2, based on the draft order and correspondence provided by the parties on 17 November 2019, will be issued concurrently with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR714357>

 1   [2017] FWCA 3875; AE424975.

 2   PR714358.