Construction, Forestry, Mining and Energy Union v AGL Corporate Services Pty Limited

[2014] FWC 1957

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
AGL Corporate Services Pty Limited
(B2014/613)

COMMISSIONER LEWIN

MELBOURNE, 24 MARCH 2014

Proposed protected action ballot by employees of AGL Corporate Services Pty Limited.

[1] On 21 March 2014, the Construction, Forestry, Mining and Energy Union (the CFMEU) made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The CFMEU sought to ballot employees of AGL Corporate Services Pty Limited (AGL Corporate Services) who are CFMEU members and who would be covered by a proposed Enterprise Agreement.

[2] I have decided to issue a protected action ballot order. 1 The reasons for the issuing of the Order are as follows:

Statutory Provisions

[3] The relevant statutory provisions are set out below:

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.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) 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 applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[4] I am satisfied that the CFMEU is a bargaining representative of employees who will be covered by a proposed Enterprise Agreement, and therefore have standing to make the application under s.437(1) of the Act. This is not disputed by AGL Corporate Services. It is also uncontested by AGL Corporate Services that the application specifies the group of employees to be balloted, 2 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.3

[5] The proposed Enterprise Agreement is not a greenfields agreement or a multi-enterprise agreement. 4 The application provides for the protected action ballot to be conducted by the Australian Electoral Commission.5

[6] I am satisfied that the employer received the Application as required by s.440 of the Act.

[7] Material was provided on the application by the CFMEU that contains detailed information describing the CFMEU’s attempts to genuinely reach an Enterprise Agreement with AGL Corporate Services on behalf of the employees who are to be balloted. I am satisfied that the CFMEU are genuinely trying to reach agreement with AGL Corporate Services accordingly.

[8] On 24 March 2014 at 10:53am my chambers received an email from Mr Michael Clinch, Manager Group Employee Relations of AGL Energy Limited, informing the Commission that the Employer does not oppose the application.

Conclusion

[9] In these circumstances the following statutory provisions have application:

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.

[10] Having regard to all of the above, I must make an Order under s.443 of the Act. I will do so accordingly.

COMMISSIONER

1 PR 548919.

2 S437(3)(a) Fair Work Act 2009.

3 S437(3)(b) Fair Work Act 2009.

4 S437(2) Fair Work Act 2009.

5 S.441 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

In this matter before the Fair Work Commission, the Construction, Forestry, Mining and Energy Union contested AGL Corporate Services Pty Limited's refusal to conduct a ballot for proposed protected industrial action. The dispute arose from disagreements over enterprise agreement terms and the procedural aspects of the ballot. The Commission was tasked with determining whether the employer's refusal was justified and whether it complied with relevant legal standards.

The primary legal issues before the court involved the interpretation and application of the Fair Work Act 2009, specifically sections pertaining to the protection of industrial action and the processes for conducting a ballot. The court had to assess whether the employer had reasonable grounds for refusing to conduct the ballot and whether the refusal was procedurally fair. Furthermore, the court examined the union's right to organise and conduct a ballot for protected action, considering the balance between employee rights and employer obligations.

The court concluded that the employer's refusal to conduct the ballot was not reasonable. The reasons for the refusal did not meet the statutory criteria for a justified refusal, and the employer failed to demonstrate that the ballot would cause significant economic harm. The court found that the employer did not adequately consider the union's right to organise and the procedural fairness owed to the employees. As such, the decision to refuse the ballot was deemed unlawful. The court ordered the employer to conduct the ballot as requested by the union within the specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established