Construction, Forestry, Mining and Energy Union-Australian Capital Territory Branch v Rar Cranes Pty Ltd
[2012] FWA 6143
•27 JULY 2012
[2012] FWA 6143 |
|
DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry, Mining and Energy Union-Australian Capital Territory Branch
v
RAR Cranes Pty Ltd
(B2012/1150)
COMMISSIONER DEEGAN | CANBERRA, 27 JULY 2012 |
Proposed protected action ballot by employees of RAR Cranes Pty Ltd.
[1] This decision relates to an application made by the Construction, Forestry, Mining and Energy Union (the Union) on 18 July 2012, for a protected action ballot of employees of RAR Cranes Pty Ltd (the Employer). The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).
[2] The matter was listed for hearing on 20 July 2012. Fair Work Australia was advised that Union was unavailable on that day. The matter was subsequently listed for hearing on 27 July 2012. Mr Garry Hamilton and Mr Jason O’Mara appeared for the Union. Mr John Nikolic from the Master Builders Association, and Mr Jeff Rumble appeared on behalf of the employer.
[3] The relevant employees of the employer are currently covered by the Rumble Bros Pty Ltd/CFMEU Collective Agreement (ACT) 2009 - 2011. I am satisfied that the current agreement had passed its nominal expiry date at the time the application was lodged. Negotiations are currently taking place in relation to a new enterprise agreement.
[4] The Union seeks to ballot employees of the employer who will be covered by the proposed enterprise agreement and who the union represents as a bargaining representative.
[5] The relevant section of the Act, s.443, provides as follows:
443 When FWA must make a protected action ballot order
(1) FWA 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) FWA 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) FWA 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 FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA 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.
[6] I am satisfied that the application has been made in accordance with s.437 of the Act.
[7] In support of the application Mr Jason O’Mara, Assistant Secretary from the Union, gave evidence at the hearing about the negotiations that have been occurring between the parties since February 2012.
[8] It was Mr O’Mara’s evidence that the Union has been, and is, genuinely trying to reach agreement with the employer on the terms of a new agreement and at all times during the negotiations has given serious consideration to the proposals put forward by the employer.
[9] At the hearing they Employer stated that they did not oppose the making of the Order.
[10] For the purposes of s.443(1)(b) of the Act, I am satisfied that the applicant has been and is, genuinely trying to reach an agreement with the employer of the employees whom are to balloted.
[11] As ss.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. An Order [PR524524] to this effect is issued separately.
COMMISSIONER
Appearances:
Mr G Hamilton and Mr J O’Mara for the Union.
Mr J Nikolic and Mr J Rumble for the Employer.
Hearing details:
2012.
Canberra:
July, 27
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<Price code A, PR526523>
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