Construction, Forestry, Mining and Energy Union
[2009] FWA 9
•24 JULY 2009
[2009] FWA 9 |
|
REASONS FOR DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 13, Item 14A - Application for an order that industrial action is taken to be authorised by a protected action ball
(B2009/10003)
COMMISSIONER LEWIN | MELBOURNE, 24 JULY 2009 |
Transitional order under s.14.A of the Fair Work (Transitional Provisions Consequential Amendments) Act 2009 – industrial action taken to be authorised under s.459 of the Fair Work Act – WR Act Repeal Day is 1 July 2009.
[1] This is the application by the Construction, Forestry, Mining and Energy Union (CFMEU) for an order pursuant to s.14.A of Schedule 13 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW(T&C) Act). Section 14.A of Schedule 13 is set out below:
“14A FWA may order that industrial action is taken to be authorised by a protected action ballot
(1) A person who is a bargaining representative for a proposed enterprise agreement may apply to FWA for an order under this item if, before the WR Act repeal day, the person was an applicant specified in an order for a protected action ballot in relation to a proposed collective agreement.
(2) The application must be made within 28 days after the WR Act repeal day.
(3) FWA may order that industrial action that was authorised under section 478 of the WR Act in relation to the proposed collective agreement is taken to be authorised, in relation to the proposed enterprise agreement, by a protected action ballot under subsection 459(1) of the FW Act, if FWA is satisfied that:
(a) on or after 1 March 2009, the person organised or engaged in industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement; and
(b) all such industrial action organised or engaged in by the person was:
(i) authorised by a protected action ballot under section 478 of the WR Act; and
(ii) protected action within the meaning of the WR Act; and
(c) the person did not first organise or engage in such industrial action on or after the WR Act repeal day; and
(d) no collective agreement covering the employees whose employment would have been subject to the proposed collective agreement was approved by those employees before the WR Act repeal day; and
(e) the proposed enterprise agreement will cover those employees; and
(f) the person is genuinely trying to reach agreement in relation to the proposed enterprise agreement; and
(g) it is reasonable in all the circumstances to make the order.
(4) Industrial action that is taken to be authorised because of the operation of subitem (3) is only taken to be authorised in relation to employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) were relevant employees (within the meaning of section 450 of the WR Act) in relation to the proposed collective agreement.
(5) For the purposes of subsection 414(3) of the FW Act, the results of the protected action ballot under that Act are taken to have been declared on the day of the order.
[2] The CFMEU has been bargaining with Diamond Protection Pty LTd (Diamond) for a collective agreement regulating the terms and conditions of employment. That bargaining was initiated and proceeded under the Workplace Relations Act 1996 (WR Act). On 4 March 2009, Senior Deputy President Lacy made a protected action ballot order under section S.462 of the WR Act. Protected industrial action has been taken in reliance on that order. However, the parties have yet to conclude an agreement.
[3] On 1 July 2009 the enterprise bargaining regime provided for in the WR Act was repealed and replaced by a new regime in the Fair Work Act 2009 (FW Act). The CFMEU is still pressing for a collective agreement. Any collective agreement reached between the parties will be an agreement made under the FW Act. It would seem that industrial action can only be protected action within the meaning of the FW Act if it is authorised by a protected action ballot order and conducted pursuant to Division 8 of Part 3-3 of the FW Act.
[4] In the absence of an order under s.14.A, a union in the position of the CFMEU would be obliged to seek a fresh authorisation for industrial action through a protected action ballot ordered and conducted under Division 8 of Part 3-3 of the FW Act. Section 14.A addresses that situation albeit that it has an effective life of only 28 days from 1 July 2009 in terms of the right to bring an application pursuant to that provision. Section 14.A was added as a Senate amendment to the Fair Work Bill 2009. The relevant Supplementary Explanatory Memorandum states that s.14.A “allow(s) for the limited preservation of protection action ballots under the WR Act after the AR Act repeal day.”
[5] The expression “WR Act repeal day” is defined in s.2 of Schedule 2 to eh FW (T&C) Act to mean “the day on which the WR Act repeal commences”. The expressions “WR Act repeal” is defined in the same section to mean “the commencement of Schedule 1”. Pursuant to s.2 of the FW (T&C) Act, Schedule 1 of that Act commences on “[t]he day on which Part 2-4 of the Fair Work Act 2009 commences”. Part 2-4 of the FW Act is entitled “Enterprise Agreements” and comprises sections 169 to 257 inclusive. Pursuant to s.2 of the FW Act, sections 41 to 572 inclusive commence on “A day or days to be fixed by Proclamation” albeit that the table in s.2 imposes other restrictions on the commencement day that have no operation in the events that have transpired. A proclamation by the Govenor-General made on 29 June 2009 fixed 1 July as the day on which sections 169 to 281A, amongst others, of the FW Act Comenced. In other words, the WR Act repeal day was on 1 July 2009.
[6] The CFMEU made their application on 1 July 2009, that is, within 28 days after the WR Act repeal day.
[7] In granting this application, I must consider the requirements of s.14.A(3).
[8] In my view:
- On or after 8 April 2009, The CFMEU organised industrial action, for the purpose of supporting or advancing claims in relation to the proposed collective agreement.
- All such industrial action organised by the ASU was authorised by a protected action ballot under s478 of the WR Act; and was protected action within the meaning of the WR Act.
- The CFMEU did not first organise or engage in such industrial action on or after 1 July 2009, the WR Act repeal day.
- The enterprise agreement proposed by the CFMEU will cover those employees.
- The CFMEU is genuinely trying to reach agreement in relation to the proposed enterprise agreement.
[9] It follows that the requirements in s.14.A(3)(a) to (f) are satisfied. The requirement in s.14.A(3)(g) is that “it is reasonable in all the circumstances to make the order”. Diamond did not contest the order being made.
[10] I am therefore satisfied that the application should be granted. Where an industrial party has been pursuing a collective agreement in conformity with the regime in the WR Act and has, prior to 1 July 2009, been taking protected industrial action pursuant to a secret ballot ordered and conducted under the WR Act, I consider it reasonable to make the order. The CFMEU has been pursuing collective agreement in conformity with protected action secret ballot ordered and in conformity with the WR Act, and in my view, it would be unfair to deprive the CFMEU the right to continue taking industrial action in pursuit of the proposed agreement merely because the legislative regime under which collective agreements are made happened to change on 1 July 2009.
[11] In my view, the requirements of s.14.A(3)(a) – (g) have been satisfied. These circumstances provide the tribunal with the discretion to make an order under s.14.A(2). An order to this effect was issued on 8 July 2009.
COMMISSIONER
Appearances:
Mr A Bukarica for Construction, Forestry, Mining and Energy Union
Mr A Wong and Mr A Kliger for Diamond Protection Services Pty Ltd
Hearing details:
2009.
Melbourne:
July 8.
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