Construction, Forestry, Mining and Energy Union v ADCO Constructions (Vic) Pty Ltd
[2016] FWC 7887
•31 OCTOBER 2016
| [2016] FWC 7887 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437—Protected action
Construction, Forestry, Mining and Energy Union
v
ADCO Constructions (Vic) Pty Ltd
(B2016/1124)
COMMISSIONER ROE | MELBOURNE, 31 OCTOBER 2016 |
Proposed protected action ballot of employees of ADCO Constructions (Vic) Pty Ltd.
[1] This is an application for a protected action ballot by members of the Construction, Forestry, Mining, and Energy Union (CFMEU) in respect to those the CFMEU represents in bargaining employed by ADCO Constructions (Vic) Pty Ltd (ADCO). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act). ADCO indicated that it opposed the application and parties provided witness statements and an outline of submissions prior to a hearing of the matter on 28 October 2016. At the conclusion of the hearing I advised the parties of my decision and the Order sought by the CFMEU was issued.
[2] The parties agreed, and I am satisfied that, the following aspects are uncontroversial:
● the applicant is a bargaining representative of employees who would be covered by the proposed agreement (s.437(1));
● the applicant has made an application under s.437(1);
● the application specifies a relevant group of employees (s.437(3)(a)); the application specifies the question to be put (s.437(3)(b));
● the application was accompanied by relevant documents (s.437(6));
● the application was provided to the respondent (s.440) and to the AEC (s.440(b)) within 24 hours of being submitted to the FWC
● there is no current agreement applicable to the employees which has not yet past its nominal expiry date.
[3] There are two remaining issues which were controversial:
(a) whether the Respondent had ‘agreed to bargain’ for the purposes of s.173(2), and if so, whether there had been a ‘notification time’ for the purposes of s.437(2A); and
(b) whether the Applicant had been ‘genuinely trying’ to reach an agreement for the purposes of s.443(1)(b).
[4] In considering these disputed matters I must apply s.443, s.173(2) and s.437(2) of the Act which relevantly provide:
“443 When the FWC 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).”
“173(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.”
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.”
Note. For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
[5] It is not in contention that on 14 September 2016 the CFMEU wrote to Mr Adaikalavan for ADCO as follows:
“I refer to your previous conversations with Elias Sernovasilis – CFMEU Assistant Secretary. Please find attached for your consideration our proposed EBA.
I am instructed that you have confirmed to Elias that ADCO does not wish to commence EBA negotiations.
The CFMEU intend to now seek a Majority Support Determination in the Fair Work Commission.
Alternatively, if ADCO does agree to commence bargaining, please advise of your available times to meet for negotiations by COB tomorrow 15 September 2016.”
[6] The company responded on 16 September 2016 that:
“Thanks for your email. Please be advised that neither Mr Meiklejohn or myself, have advised CFMEU Assistant Secretary Elias Sernovasilis that ADCO does not wish to commence EBA negotiations. In order to assist us in considering our position could you please advise the following:
- Whether your proposed EBA is compliant with the current Building Code 2013; and
- Whether your proposed EBA is compliant with the advance release Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (proposed Code).”
[7] The CFMEU responded on 22 September 2016. In that response the CFMEU dealt with the questions raised in respect to the proposed code and asked:
“Please confirm whether ADCO Constructions seeks to bargain with the CFMEU and its members in relation to a new agreement. I note we have a majority of the workforce prepared to apply for, and support, a majority support determination should ADCO refuse to bargain.”
[8] Mr Adaikalavan for ADCO gave evidence that he was aware that the CFMEU had been collecting signatures on a petition. I am satisfied by the documents provided by the CFMEU in proceedings that they had in fact obtained employees signatures on a petition in support of a majority support determination.
[9] ADCO responded on 23 September 2016. ADCO responded further in respect to its concerns about whether or not the EBA document proposed by the CFMEU was compliant with the proposed code and stated “it would commercially imprudent for us to consider an agreement that may impact or limit our ability to be eligible to tender for Commonwealth funded building work”. The email continued:
“ADCO remains willing and prepared to bargain with the CFMEU and its members in relation to a new agreement, on the basis that doing so does not affect, in any way, our ability to tender for Commonwealth funded building work.”
[10] I accept the evidence of Ms Maloney from the CFMEU that on the basis of this advice that ADCO was prepared to bargain the CFMEU decided not to proceed with the majority support determination application.
[11] A meeting was held between the company and the CFMEU on 26 September 2016. The main focus of the discussion was the position of the CFMEU and other builders in respect to the proposed Code and the proposed agreement content. The CFMEU says that at the meeting ADCO said that the only issue with the content of the proposed CFMEU EBA document was the question of compliance with the proposed Code. The company deny that this was said.
[12] On 27 September 2016 the CFMEU sent further correspondence including further information about the proposed Code issues in an attempt to allay the company’s concerns about this issue. That correspondence ended “As you have now agreed to bargain we request that ADCO issue a Notice of Representational Rights in accordance with the FW Act.”
[13] On 5 October 2016 in an email to ADCO the CFMEU sought a response to the 27 September 2016 email and stated that the CFMEU had outlined its position in respect to the proposed Code and in addition asked “can you please articulate any other outstanding claims or matters that ADCO seek to pursue in relation to a new enterprise agreement so that the union can consider and respond”.
[14] A further meeting between the CFMEU and ADCO was held on 10 October 2016. The issue of the proposed Code and proposals to deal with it were further discussed. ADCO indicated that they would seek independent advice in respect to what was proposed.
[15] The CFMEU was concerned that as there was no response to the correspondence of 5 October 2016 or beyond the meeting of 10 October 2016 they considered that an impasse had been reached and lodged the protected action ballot application on 24 October 2016.
[16] I do not accept the submission of the company that the email statement of 23 September 2016 that “ADCO remains willing and prepared to bargain with the CFMEU and its members in relation to a new agreement, on the basis that doing so does not affect, in any way, our ability to tender for Commonwealth funded building work,” does not constitute an agreement to bargain but rather is a statement that ADCO is not prepared to agree to bargain until the issue of compliance with the proposed Code is resolved.
[17] Considered with the totality of the correspondence and in the context of the CFMEU activity for a majority support determination and its advice that it was intending to apply for such a determination, I am satisfied that the statement of 23 September 2016 was an agreement to bargain for an enterprise agreement but on the basis that the company would not agree to any outcome of that bargaining which affected its ability to tender for Commonwealth funded building work. In other words the company would not agree to any outcome of the bargaining which did not resolve its concerns about compliance to the proposed Code.
[18] It is commonplace for parties to advise during bargaining that certain outcomes must be achieved in bargaining. The notification time is not the time the parties reach agreement about the outcome of bargaining but rather the time when the parties agree to bargain.
[19] I am satisfied that the Respondent had ‘agreed to bargain’ for the purposes of section 173(2), and that there had been a ‘notification time’ for the purposes of s 437(2A).
[20] ADCO referred to the Full Bench decision in Total Marine Services Pty Ltd v The Maritime Union of Australia 1 and in particular to the following comments in respect to the requirement to genuinely be trying to 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.”
[21] The above requirement is of course not a separate or additional test rather it is a guide as to how the legislative requirement might be applied. There is no rigid requirement about the number of meetings which are necessary to determine if the union is genuinely trying to reach an agreement. In some cases a number of meetings may be required, in others the positions may be clear quite quickly or an impasse may be reached. There is no requirement for negotiations to be exhausted or to have reached any particular milestones.
[22] In this case there is no evidence of any capricious conduct by the CFMEU or any evidence or suggestion that it has been or is trying to achieve anything other than an enterprise agreement and is doing anything other than genuinely trying to reach an agreement. Of course the test is not the absence of conduct which is inconsistent with genuinely trying to reach agreement, however, such negative conduct and its absence are relevant considerations.
[23] In this case there is evidence of the positive requirement to be genuinely trying to reach agreement. The CFMEU has clearly articulated its claims; in fact it has put forward a draft agreement. The CFMEU has provided considered responses in correspondence and at two meetings to the only demand made by the employer and that is the demand in respect to compliance with the 2013 building code and the proposed 2014 building code. The CFMEU provided the employer with several opportunities to raise any other concerns but to date none have been raised by the employer.
[24] In all of the circumstances I am satisfied that the test that the CFMEU has has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted has been met.
[25] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order. At the conclusion of the proceedings I advised the parties that I would issue the Order. I have published that Order separately.
COMMISSIONER
Appearances:
Mr Borgeest Counsel for the CFMEU
Mr Mclauglin, Rigby Cooke Lawyers for ADCO
Hearing details:
2016
Melbourne
28 October
1 [2009] FWA 187
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