Construction, Forestry, Mining and Energy Union Summary

[2014] FWC 39

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Applications for protected action ballot orders

Construction, Forestry, Mining and Energy Union

(B2013/1481)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(B2013/1482)

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

(B2013/1483)

v
Spotless Facility Services Pty Ltd

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 3 JANUARY 2014

Applications for protected action ballot orders by employees of Spotless Facility Services Pty Ltd.

[1] These applications pursuant to section 437 of the Fair Work Act 2009 (the Act) were lodged by the Construction, Forestry, Mining and Energy Union (CFMEU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Automotive, Food, Metals, Engineering, printing and Kindred Industries Union (AMWU) respectively. The CFMEU was leading the bargaining on behalf of the three organisations.

[2] I heard the applications in Melbourne with a video link connection on 21 November 2013. On 22 November 2013 I ordered, in the three applications, that a protected action ballot of the employees of Spotless Facility Services Proprietary Limited (Spotless) be held. 1

[3] I considered the evidence of Ms Donnellan. Ms Donnellan provided an affidavit 2 which was her evidence in chief and on which she was cross-examined.

[4] Spotless opposed the order on the basis that the various unions had not been negotiating in good faith. In that regard I considered the evidence of Mr Douglas. Mr Douglas provided an affidavit 3 which was his evidence in chief and on which he was cross-examined.

[5] After considering the evidence of the two witnesses and the submissions of the parties I was satisfied that the application specified the group of employees to be balloted and the nature of the questions to be put to the employees to be balloted as well as the nature of the proposed industrial action.

[6] Although there were issues arising from the distances involved in organising bargaining meetings I was satisfied by the evidence of Ms Donnellan and submissions of Mr Borg that each applicant organisation had been genuinely trying to reach agreement with Spotless concerning the terms and conditions of employment of the employees who were to be balloted.

[7] It was for these reasons that I issued the Orders of 22 November 2013.

SENIOR DEPUTY PRESIDENT

1 PR544919, PR544928, PR544925

2 Exhibit CFMEU 1

3 Exhibit Spotless 1

Printed by authority of the Commonwealth Government Printer

The applicants, employees of Spotless Facility Services Pty Ltd, sought protected action ballot orders from the Fair Work Commission to facilitate lawful industrial action. The Commission dismissed the applications and the applicants appealed to the Federal Court. The applicants contended that the Commission had erred by failing to consider evidence of the company's financial position and the impact of industrial action on the company and the public. The court held that the Commission had not erred in its consideration of the evidence and dismissed the appeals. The applicants were ordered to pay the respondent's costs of the proceeding. The court found that the Commission had appropriately considered the evidence of the company's financial position and the impact of industrial action on the company and the public. The court held that the Commission had correctly applied the relevant statutory provisions and had not erred in law. The court further found that the applicants had failed to demonstrate that the Commission's decision was unreasonable in the sense of being outside the range of responses open to a reasonable decision-maker. The applicants' appeals were dismissed and the orders of the Commission were affirmed. The applicants were ordered to pay the respondent's costs of the proceeding.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established