Construction, Forestry, Maritime, Mining and Energy Union v Spotless Facility Services Pty Ltd T/A Spotless

[2018] FWC 4658

[2018] FWC 4658

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
Spotless Facility Services Pty Ltd T/A Spotless
(B2018/681)

DEPUTY PRESIDENT MASSON MELBOURNE, 9 AUGUST 2018

Proposed protected action ballot of employees of Spotless Facility Services Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Spotless Facility Services Pty Ltd T/A Spotless (Spotless; the Respondent) who are to be covered by the proposed agreement and are represented by the Applicant (the employees).

[2] On 3 August 2018, the Commission wrote to Spotless requesting it to advise the Commission by 10.00 am 6 August 2018 as to whether there was any objection to the application. Spotless responded to the Commission on 6 August 2018 advising that it objects to the application on the basis that it seeks an extension to the notice period for particular forms of industrial action. In subsequent correspondence on 6 August 2018 the Applicant advised the Commission that it did not consent to an extension to the notice period for industrial action sought by Spotless.

[3] The matter was listed for hearing before me on 8 August 2018, having been joined with two other similar applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in matter number B2018/677 and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in matter number B2018/680. Both the Applicant and Spotless filed submissions and materials in support of their respective cases. The Applicant was represented at the hearing by Ms Lucy Weber and the Respondent was represented by Mr Rogan McMahon of the Australian Industry Group.

[4] In the materials filed by Spotless for the hearing, two objections were raised to the application. The first was that the period of notice required for the taking of particular forms of industrial action required should be extended from three days to seven days. The second objection was in relation to one of the proposed ballot questions, that being Question 8 which stated as follows;

“In support of reaching an enterprise agreement with your employer, do you authorise protected industrial action against your employer, separately, concurrently and/or consecutively in the form of;

…………

8. An unlimited number of indefinite or periodic bans on call backs and/or call outs?

Yes [ ] No [ ]”

[5] The latter objection was based on the Respondent’s belief that the proposed question was ambiguous and uncertain and that it (the question) lacked specificity.

[6] The parties conferred prior to commencement of the hearing and on commencement advised the Commission that agreement had been reached on an amendment to the proposed Question 8 and on that basis the Respondent withdrew its objection to the application. The amendment that was agreed to by the parties was to delete the existing proposed Question 8 and replace it with the following Questions 8 & 9;

“In support of reaching an enterprise agreement with your employer, do you authorise protected industrial action against your employer, separately, concurrently and/or consecutively in the form of;

…………

8. An unlimited number of indefinite or periodic bans on call backs?

Yes [ ] No [ ]

9. An unlimited number of indefinite or periodic bans on call outs?

Yes [ ] No [ ]”

[7] Having regard to the consent position reached between the parties at the hearing and on the basis of the material before me, including the statutory declaration of Mr Andrew Sutherland of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[8] An order has been separately issued in PR609784.

DEPUTY PRESIDENT

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