Construction, Forestry, Maritime, Mining and Energy Union v Probuild Constructions (Aust) Pty Ltd

[2020] FWC 5513

[2020] FWC 5513

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
Probuild Constructions (Aust) Pty Ltd
(B2020/629)

COMMISSIONER CAMBRIDGE SYDNEY, 16 OCTOBER 2020

Proposed protected action ballot of employees of Probuild Constructions (Aust) Pty Ltd.

[1] On 8 October 2020, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), made an application for a protected action ballot Order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the CFMMEU who are employees of Probuild Constructions (Aust) Pty Ltd (the employer) whose employment is to be regulated by a proposed agreement to replace the Probuild Constructions (Aust) Pty Ltd, its employees and CFMEU New South Wales Enterprise Agreement 2016 – 2019 (the 2016 Agreement).

[2] The application seeks a ballot of employees of the employer who are members of the CFMMEU who would be covered by a proposed enterprise agreement to replace the 2016 Agreement. The application was supplemented with a Form F34B Declaration of Rita Mallia dated 8 October 2020 (the Declaration). In summary, the Declaration provided information about events involving attempts made by the CFMMEU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 14 October 2020, advising that the employer opposed the application for a protected action ballot Order. Consequently, the application was listed for Hearing before the Commission in Sydney on 16 October 2020.

[4] At the Hearing, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents, and the following appearances were recorded:

Mr R Reitano, of Counsel,appearedfor CFMMEU;

Mr J Oakes, solicitor, appeared for the employer.

[5] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“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.

(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.”

[6] At the Hearing held today, Mr Reitano called Ms Mallia as a witness and she attested to the veracity of the Declaration which became Exhibit 1. Ms Mallia was cross-examined by Mr Oakes about the contents of Exhibit 1, and about various other matters broadly related to the history of discussions between the Parties in the pursuit of an enterprise agreement to replace the 2016 Agreement.

[7] The Hearing has provided an appropriate opportunity for the employer to advance its case in opposition to the application as had been outlined in its communication to the Commission of 14 October 2020. During the Hearing it became apparent that the employer challenged the application upon the following assertions; firstly, the employer asserted that the application for a protected action ballot Order was premature; secondly, it was asserted that the question or questions to be put to the employees lacked sufficient clarity in order to allow an informed decision to be made; and thirdly, it was asserted that the proposed enterprise agreement contained non-permitted matters and therefore the CFMMEU were not genuinely trying to reach agreement.

[8] The employer introduced evidence which included a copy of a proposed 2019-2022 enterprise agreement document dated 10 July 2020, and an email communication dated 17 September 2020, from the employer’s General Counsel to Ms Mallia of the CFMMEU. In addition, Mr Oakes called the employer’s general operations manager Mr R McAllister to provide evidence as a witness.

[9] The evidence provided by the employer has not supported the assertions upon which it opposed the application for a protected action ballot Order. The employer’s letter to the Commission of 14 October 2020, asserted inter alia, that “… to date no such bargaining has commenced…” The evidence provided by both Ms Mallia and Mr McAllister confirmed that the Parties had been engaged in enterprise bargaining for a considerable period of time, and they had recently almost finalised agreement on the terms of a 2019-2022 document. Consequently, the application for a protected action ballot Order could not be considered to be premature.

[10] Upon examination of the questions that are proposed in the draft Order, the Commission is unable to identify any particular lack of clarity. The questions involve simple propositions that would be well understood and are similar, if not identical, to questions frequently included in protected action ballots.

[11] The proposition that the CFMMEU was pursuing non-permitted matters was soundly rebutted by the unchallenged evidence provided by Ms Mallia that terms such as those contained in clause 24 of the proposed 2019-2022 document, existed in hundreds of enterprise agreements that have been approved by the Commission.

[12] The employer’s letter of 14 October 2020, also included an alternative proposition, whereby the employer advanced a request that the standard time frame of 3 days’ notice for the taking of any protected industrial action be extended. During the Hearing, the employer did not further agitate this issue, nor did it provide any evidence to the Commission to support any submission that there were exceptional circumstances that justified an extension to the written notice period for the taking of protected industrial action.

[13] In summary therefore, the evidence provided by the employer has failed to support the various issues that were asserted as providing basis for its opposition to the granting of the application for a protected action ballot Order, or for any extension to the written notice period for the taking of protected industrial action.

[14] Consequently, the Commission is satisfied that the application has been made in accordance with section 437 of the Act. Further, the Commission is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, the Commission is satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[15] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot Order. The Order shall be made in the terms as broadly sought by the CFMMEU. Accordingly, an Order [PR723598] is issued separately.

COMMISSIONER

Appearances:

Mr R Reitano, Counselappearedfor the Construction, Forestry, Maritime, Mining and Energy Union.

Mr J Oakes, solicitor from Squire Patton Boggs appearedfor the employer.

Hearing details:

2020.
Sydney:
October, 16

Printed by authority of the Commonwealth Government Printer

<PR723597>