Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Construction Workers Divisional Branch v A.m. Cranes & Rigging Pty Ltd

[2013] FWC 9266

[2013] FWC 9266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Construction Workers Divisional Branch
v
A.M. Cranes & Rigging Pty Ltd
(B2013/1428)

COMMISSIONER WILSON MELBOURNE, 25 NOVEMBER 2013

Proposed protected action ballot by employees of A.M Cranes & Rigging Pty Ltd.

[1] This is an application for a protected action ballot order by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) employed by A.M. Cranes & Rigging Pty Ltd.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The Applicant seeks to ballot all employees of A.M. Cranes & Rigging Pty Ltd who will be covered by the proposed enterprise agreement and for whom the CFMEU is their bargaining representative.

[4] The application in this matter was filed in the registry on 21 November 2013 and heard within two working days on 25 November 2013.

[5] Mr Cousner and Mr Huddy appeared for the CFMEU, and Ms Gallen of Master Builders appeared with Mr Murrihly and Ms Chui for A.M. Cranes & Rigging Pty Ltd.

[6] The Applicant seeks to ballot those employees employed by A.M. Cranes & Rigging Pty Ltd on the date of the order who would be covered by the proposed agreement and have appointed the CFMEU as their bargaining representative. If granted, the application would put nine questions to the balloted employees for their consideration.

[7] The material before me in this matter, which I have taken into account in making my decision, consists of the application itself, the submissions of Ms Gallen, and the witness statement of Mr Michael Huddy (marked CFMEU 1). A.M. Cranes & Rigging Pty Ltd did not seek to either object to the tendering of the witness statement or to cross-examine Mr Huddy about its content.

[8] In considering this matter I must apply s.443 of the Act which provides:

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.

[9] I am satisfied that the application has been made in accordance with s.437 of the Act.

[10] The CFMEU submitted it has been genuinely trying to reach agreement with A.M. Cranes & Rigging Pty Ltd in this matter. Mr Huddy’s witness statement expands on the submission.

[11] A.M. Cranes & Rigging Pty Ltd’s submissions on this point are that the union is not genuinely trying to reach an agreement. A.M. Cranes & Rigging Pty Ltd did not provide material on this point beyond this submission.

[12] In relation to this subject is the decision of the Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia which was called upon to consider whether or not a party was genuinely trying to reach an agreement. In that matter, the Full Bench said relevantly:

[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.

[13] I have considered the circumstances of bargaining put to me and have considered the material provided in Mr Huddy’s witness statement regarding the progress in negotiations and the steps taken in order to try and reach an agreement. As a result of these considerations, I am 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.

[14] Having found that an application has been properly made and that the Applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted, I must make a protected action ballot order.

[15] An order consistent with my reasoning above is issued at the same time as this decision.

COMMISSIONER

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