Construction, Forestry, Mining and Energy Union v Brookfield Multiplex Constructions Pty Ltd
[2012] FWA 2817
•3 APRIL 2012
[2012] FWA 2817 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
Brookfield Multiplex Constructions Pty Ltd
(B2012/641)
Construction, Forestry, Mining and Energy Union
v
Brookfield Multiplex Australasia Pty Ltd
(B2012/648)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 3 APRIL 2012 |
Summary: two protected action ballot applications - non-employer named - s.440 - question to be put opaque and does not sufficiently disclose nature of industrial action - allegation employer not responding to claims following successive meetings – claim union genuinely trying to reach agreement – claims not articulated until third meeting - interactions suggestive of preparatory or preliminary discussions before actual efforts to reach agreement - embryonic moment.
[1] This decision concerns two applications lodged in Fair Work Australia (“FWA”) by the Construction, Forestry, Mining and Energy Union (“CFMEU”) for a protected action ballot order under s.437 of the Fair Work Act 2009 (“the Act”). The first application (B2012/641) was lodged on 28 March 2012 at 4:35 pm. The second application (B2012/648) was lodged on 30 March 2012 at 2:36 pm. The circumstances of these discrete applications and their relationship are dealt with below.
The first application
[2] The first application was subject to a hearing on Friday, 30 March 2012 at 1:30 pm. That application was objected to on grounds of jurisdiction. In that application, the CFMEU named the respondent employer as Brookfield Multiplex Constructions Pty Ltd (BMC). BMC contended that there was no such corporate entity that employed the employees who were intended to be subject to the proposed enterprise agreement and for whom the CFMEU is the bargaining representative (under the terms of the Act).
[3] It appears from the unchallenged commentary from the bar table (which was led by way of formal evidence in the subsequent proceedings discussed below 1) that BMC ceased to be the employing authority in mid-2011. This was because the Brookfield Multiplex group underwent a rebranding and restructuring exercise. All the relevant employees who were then engaged under the Brookfield Multiplex Constructions Pty Ltd and CFMEU Queensland Union Collective Agreement 2009 – 2011 (“the 2009 Agreement”) at this time appeared to have voluntarily agreed to transfer to a company within the Brookfield Multiplex Group called Brookfield Multiplex Australasia Pty Ltd (“BMAPL”).
[4] Because of this corporate development, BMC argued that amongst other things the CFMEU had not complied with the requirements of s.440 of the Act, which reads as follows:
“440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.”
[5] Specifically, BMC contended that the CFMEU had not given a copy of the application to the employer of the employees who are to be balloted, but rather provided that copy to another entity which is no longer the employer of the relevant employees.
[6] The CFMEU, confronted by such circumstances, sought to amend its application to identify the new employer such that it could proceed with the application that was on foot. BMC objected to this course.
[7] The issue in contention therefore fell to me to determine at that time. My reasons for decision were largely as follows.
[8] The application as made on 28 March 2012 indicates that the employees who are to be balloted are employees of BMC.
[9] It appears on what has been put to me from the bar table (in a context in which evidence in support of the claims was said to be at hand) is that the corporate entity identified as BMC does not employ any of the employees who are capable of being subject to the proposed agreement. The CFMEU raised no challenge to this claim.
[10] It is said further that another entity, BMAPL, is the employer of the employees to which the application for a ballot order is said to relate. Again, this is not disputed.
[11] Section 440 of the Act states, amongst other things, that within 24 hours after making an application for a protected action ballot order, the Applicant must give a copy of the application to the employer of the employees who are to be balloted.
[12] Section 440 of the Act is a statutory command to an Applicant.
[13] Section 441 of the Act reads as follows:
“441 Application to be determined within 2 days after it is made
(1) FWA must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.
(2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.”
[14] Section 441(2) of the Act states that FWA must not determine the application unless it is satisfied that each Applicant has complied with s.440 of the Act.
[15] Section 441(2) of the Act is a statutory command to the tribunal to the effect that it cannot determine the application until such time as it is satisfied that there has been compliance with the requirements for service of the notice of application (under s.440 of the Act).
[16] It appears to me that courts and tribunals are disinclined to invalidate an application in circumstances where a critical identifier has been misrepresented in a minor or technical way.
[17] Such circumstances that come to mind are incorrect spellings or minor variations in a company’s name, or indeed in the name of an employee organisation.
[18] Clearly, an application ordinarily would not be vitiated merely because of a technical or typographical defect which is capable of remedy by the particular powers of the tribunal or otherwise. The tribunal’s particular powers under s.586 may accommodate such circumstances.
[19] But the circumstances that are before me now concern the misidentification of the corporate entity which employs the employees.
[20] That is, the wrong corporate entity has been named.
[21] Whilst both corporate entities are part of the wider set of corporate arrangements, they are not one in the same.
[22] One corporate entity - BMAPL - is the employer, the other is not the employer but now serves some other function within the wider corporate arrangements.
[23] There is a substantive difference between an error of the kind that I have discussed above (which is of a technical or typographical kind) and the circumstances in which the wrong corporate entity is named on the application and that incorrectly identified legal entity is not the employer of the employees who are to be balloted (for the purposes of s.437 of the Act).
[24] Even if I were to amend the application to identify a different corporate entity to one which employs the employees who are to be covered by the proposed agreement from a legal identity that employs no one I would in effect be re-making the application before me in a substantive manner. That is, by amending the application and identifying a new corporate entity which is the actual employer I would be fundamentally altering the terms of the application itself.
[25] It would not be possible, therefore, that a new application brought into existence by the amendment as sought by the CFMEU, could have met the requirements of s.440 of the Act. That is, the amendment to the application would not cure the defect at first instance.
[26] Further, for the purposes of s.441(2) of the Act, because I could not be satisfied that the CFMEU had complied with the requirements of s.440 of the Act, I could not establish jurisdiction to determine the application.
[27] If I were to embark, nonetheless, on such a path, as the CFMEU sought that I should, I would not have found the jurisdiction upon which the determination of the application could be made.
[28] Any determination that I did make as a consequence would therefore be exposed to uncertainty and challenge.
[29] In reaching this conclusion, I have considered the purpose of the legislation. I construe this to be to put the employer on notice of the application, and to enable the employer to respond to the various claims that will be made in support of that application, which may come to have significant consequential effects for its business. Where the various corporate entities involved a part of the same wider set of corporate arrangements it might be contended that irrespective of the irregularities the corporate mind itself would be properly informed in a practical way.
[30] That may be the case, though it might not always be so (depending on the degree of separation between the corporate creations).
[31] But be that as it may, s.440 of the Act and s.441(2) of the Act are statutory commands. The sections place unavoidable obligations upon both the Applicant and FWA. They appear to me to be particularly resistant to the purposive approach to interpreting the consequences of things done (other than typographical errors etc) in non-compliance with a statutory direction.
[32] The compounding effects of these obligations make the intent of Parliament clear: the Applicant must do certain things and FWA must not determine the application unless the Applicant has complied with the statutory requirements by doing these things.
[33] Again, the context of this particular application is important. I am here confronted with the circumstances in which the error is substantive, and not of a minor kind.
[34] In circumstances such as this it is prudent to pay close regard to the mandatory preconditions to establishing jurisdiction conveyed by the language of the relevant sections. Ultimately, this approach may be of assistance to both parties, though I recognise the inconvenience caused in the short term to the Applicant.
[35] For these reasons I dismissed the application in B2012/641 for a protected action ballot order.
The second application
[36] Upon (or even shortly before) so indicating my disposition in relation to the first application, the CFMEU lodged the second application in B2012/648. In that second application, the CFMEU indicated that the relevant employer was BMAPL. After some discussion, it was agreed between the parties that the second application could proceed.
[37] In respect of the second application all the statutory requirements of the Act were met other than in respect of s.437(3)(b) of the Act and s.443(3)(d) of the Act on one hand, and s.443 of the Act on the other.
Requirements of s.437(3)(b) of the Act and s.443(3)(d) of the Act
[38] Section 437(3)(b) and s.443(3)(d) of the Act require that the application and the order that might emanate include the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
[39] The CFMEU included in its second application the following question:
Question 9
Communicating with any person, including subcontractors of Brookfield Multiplex Australasia Pty Ltd, and employees of such subcontractors, about the pursuit of an Enterprise Agreement (to the extent that such communication is industrial action)?
[40] It appears from the submissions of the CFMEU that this question was designed to gain authorisation for the course of action that would enable employees to either stop work or delay their work whilst they communicated their views about the enterprise agreement to subcontractors of the employer.
[41] This question is opaque. It lacks definition for the purposes of readily understanding its scope. That is, it is uncertain as to what precise range of communications would be anticipated, and which of those communications would be permissible within an assumed definition of ‘industrial action’. As a consequence the question may be confusing for employees to determine the range of conduct in which they might participate that would be immune to civil liability (for which there is no shield as in s.460 of the Act). Further, the question does not sufficiently disclose the nature of the proposed industrial action.
[42] The CFMEU submitted that it could be directed to provide an explanation to the employees as to the scope of the question. Such a direction, in my view, was beyond the jurisdiction vested in FWA by way of Division 8 of the Act. In any event, if such a direction was required it would demonstrate the inherent defect in the question as proposed to be put to the employees who are to be balloted.
[43] As a consequence of my reasoning, the question was deleted from the application in accordance with the powers of the tribunal under s.586 of the Act.
Section 443 of the Act
[44] The parties contested whether or not the CFMEU had genuinely tried and was genuinely trying to reach agreement with BMAPL.
[45] The CFMEU, for its part, contended that it had held four meetings with the employer, had articulated its claim, and the employer had failed to respond to its claims despite its agitation that it should do so.
[46] BMAPL contended that the occasions on which it met with the CFMEU were merely informal occasions and could not be construed to be formal enterprise bargaining agreement negotiations. BMAPL contended that the discussions that were held were of a preliminary nature about the form a negotiation for a new enterprise agreement might take in the future.
[47] The first of the so-called four meetings occurred it appears in a cafe in the Queen Street Mall on or about 2 February 2012 (“the first meeting”).
[48] The CFMEU, through its organiser Mr Kane Pearson, claims there were wide ranging discussions at that meeting regarding a new agreement. Mr Pearson indicated that the topics of discussion focused:
in particular [on] the subcontractor labour hire clause, rates of pay, industry rates of pay, union rights clauses, and quite a few of the new clauses in the upcoming document. 2
[49] Later in his evidence, Mr Pearson appeared to place greater emphasis on subsequent meetings in relation to the focus on enterprise agreement negotiations while emphasising the focus upon subcontractors, as a discrete and seemingly a non-enterprise agreement issue, in the first meeting:
We might come to that, Mr Pearson, but the fact of it is the discussions actually dealt with a range of different issues, didn't they?---The first one? The first one spoke about subbies, yes, we had another project. The rest of them were purely EBA. 3
[50] Mr Higgon, the employer's Employee Relations Manager, recollected only that the meeting of 2 February 2012 concerned the need to have subcontractors on enterprise agreements, appointment arrangements for certain BLF delegates and the CFMEU's ambitions in relation to the demolition sector: 4
The first meeting that took place in Queen Street, and as (indistinct) said it involved himself, another person Peter Bell and me, and that discussion did not involve any - had nothing to do with enterprise agreements, it was around the need for sub-contractors to have enterprise agreements, it didn't relate to Brookfield Multiplex's renegotiation of an agreement. 5
[51] Mr Pearson’s later evidence appears to lend support to the evidence of Mr Higgon as to the focus of the first meeting.
[52] The second meeting was held on 14 February 2012 (“the second meeting”). The CFMEU was unable to provide any direct evidence about the content of this meeting. It does appear, however, that at this meeting Mr Higgon was provided a copy of the CFMEU template agreement. 6
[53] The only direct evidence I have about the content of the second meeting is from Mr Higgon. His evidence was that he met with the CFMEU as part of a fact-finding visit and the CFMEU gave him information about what his competitors had agreed to by way of new agreements.
[54] The parties again met on 29 February 2012 (“the third meeting”). In relation to this third meeting the following evidence emerged from cross examination of Mr Pearson:
Mr Pearson, the meeting at the CFMEU office at Bowen Hills on 29 February, do you recall that meeting?---On which date?
[...]
It was at that meeting that you told Brookfield Multiplex that your log of claims was going to be the Laing O'Rourke agreement recently concluded, didn't you?---That's incorrect.
Do you deny that?---I issued Multiplex with a copy of the Laing O'Rourke agreement out of courtesy to let them know what their competitors had signed up to.
You told them that your log of claims was going to be the Laing O'Rourke agreement, didn't you?---I think that in the fourth meeting this was agreed with Peter Bell and Dave Higgon that we didn't actually agree on that, we agreed on the joint (indistinct) document that was (indistinct) themselves.
Mr Pearson, to answer my question at the meeting on 29 February you told the vice-president from Brookfield Multiplex that the Laing O'Rourke agreement would be the CFMEU log of claims?---I proposed that and it was agreed that they were happy with the (indistinct) CFMEU joint document. As I said, that was repeated in the fourth meeting by Peter Bell and Dave Higgon and that was the actual document we were speaking about and getting answers up to clause 19 in the fourth meeting that Dave Higgon had gone through and had a copy of. 7
[55] It appears to me from Mr Pearson's evidence, that during the third meeting the CFMEU proposed that its log of claims, in effect, was to be the Laing O'Rourke Agreement, and that there was disagreement in this regard. This disagreement appears to have then been settled by way of the mutual acceptance of the CFMEU joint document (which I have referred to above as the ‘template agreement’).
[56] The final meeting was then conducted on 21 March 2012 (“the fourth meeting”).
[57] At that meeting the CFMEU claimed that after three weeks BMAPL had refused to respond to its claim, even though it had provided some limited marked up material in relation to what appears to be the first nineteen clauses of the CFMEU template agreement. This material appears to have been a comparison between the clauses in the CFMEU template agreement and the 2009 Agreement which regulated the relationship between the parties.
[58] The following day, the CFMEU (by way of email dated 22 March 2012) claimed BMAPL had refused to respond to its proposed agreement and claimed it had contravened the good faith bargaining requirements of the Act. The CFMEU requested BMAPL respond to its proposal within the next 24 hours.
[59] On 23 March 2012, BMAPL wrote to the CFMEU indicating that it now sought to bargain formally with the union for a new agreement and, as a consequence, would proceed to issue a notice of employee representational rights in that context. The notice of employee representational rights was issued on 29 March 2012.
[60] BMAPL proposed in the same correspondence of 23 March 2012 to meet with the CFMEU on 9 April 2012 to progress bargaining in this respect.
[61] Five days later, on 28 March 2012, the first application (as referred to above) was lodged in FWA.
CONSIDERATION
[62] A finding requiring a discretionary satisfaction such as that in s.443 of the Act will invariably involve a question of fact and degree.
[63] The Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia 8 (“Re: Total Marine Services”) stated as follows:
[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. 2 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.
[64] Circumstances differ between cases. The approach of the Full Bench in Re: Total Marine Services presumes ordinary and conventional bargaining interactions involve offering a counter offer. This has attracted comment by subsequent Full Benches of FWA. 9 In the case before me, the CFMEU effectively claimed that BMAPL has purposefully deferred its response to the union’s claim, and forgone opportunities to bargain productively.
[65] The evidence in this case suggests that the CFMEU had not fixed upon a body of claims until sometime into the third meeting on 29 February 2012. At that meeting, Mr Pearson gave evidence that he had proposed that the CFMEU's claim be the Laing O'Rourke Agreement:
you told the vice-president from Brookfield Multiplex that the Laing O'Rourke agreement would be the CFMEU log of claims?---I proposed that [...]. 10
[66] At the very least, it appears that it was only after that proposal was rejected that there was a subsequent agreement to settle upon the CFMEU template agreement:
[...] and it was agreed that they were happy with the (indistinct) CFMEU joint document. 11
[67] Mr Pearson's evidence of the extent of the interactions between the parties at the third meeting was as follows:
MR CRANK: Mr Pearson, can you tell us about the third meeting?---Okay, the third meeting was held in the CFMEU office at Campbell Street, Bowen Hills where myself and Shane Tredaway from the (indistinct) attended, that's a copy that was provided to Dave Higgon and Peter Bell they actually had with them at the time. We asked them (indistinct) their position was as a company (indistinct) a document and he didn't have any response. We spoke about which document we were going to use to track changes and it was agreed that we would use our new STA proposal rather than the company's old agreement. We left that meeting with no response once again from the company and hence another fourth meeting. 12
[68] It appears to me that the discussions that occurred at the third meeting were of particularly limited scope. This is not surprising because it was only at that meeting (according to the CFMEU’s evidence alone) that the CFMEU settled on a document which was to be the basis of what appears to be their claims. That is, the CFMEU had pressed the Laing O'Rourke Agreement at that meeting and only during that meeting had come to agreement that the CFMEU template agreement would be utilised.
[69] The situation from the CFMEU’s perspective was summarised in closing submissions as follows:
THE SENIOR DEPUTY PRESIDENT: Can I just ask where do you see the CFMEU claim having been articulated?
MR CRANK: It was articulated when - - -
THE SENIOR DEPUTY PRESIDENT: When and where?
MR CRANK: In February, according to Mr Higgon, when he was provided with a copy of exhibit CFMEU1. That was the first time it was put to the employer. An alternative was later put to the employer that we thought they may have prepared, namely, the Laing O'Rourke agreement, but when the employer responded that they weren't interested in that, we said, "Right. We'll bargain on the basis of our first proposal," which is exhibit CFMEU1. 13
[70] This characterisation of the CFMEU’s evidence is buttressed by the evidence of Mr Higgon regarding the same (third) meeting, which was as follows:
Do you recall a further meeting and do you recall the subject matter for that discussion?---The meeting that was in March was - well, if I could just go back to the earlier meeting where the Laing O'Rourke agreement was tabled, we were trying to establish at that stage just what the union's position was. We hadn't started but we were looking at a base line. The union advised us that - the conversation started with them referring to the Laing O'Rourke document as being the log of claims. We said look, we will be having discussions using our existing enterprise agreement as our model. Ultimately we agreed from that meeting we agreed with Kane Pearson that we would use the CFMEUs template agreement as the basis for discussions and we asked whether they would send us a Word copy of that agreement so that when we started we could actually track the changes. 14
[71] It appears from Mr Higgon’s evidence that he believed that there was likely to be little by way of substantive differences between the the CFMEU template agreement and the Laing O’Rouke Agreement. Mr Higgon merely observed as a person of long experience that, “I imagine it runs to a fairly standard pattern.” 15
[72] Nothing therefore turns on this observation for these proceedings.
[73] After the parties had settled the base document from which they were to work - that apparently being the CFMEU template agreement - they only met on one further occasion and that was for the purposes of the fourth meeting.
[74] Mr Pearson's evidence in relation to the content of the fourth meeting is as follows:
We at down, started discussing the agreement, we even went to discussing things that were agreed but when we got to the issues where they didn't agree they wouldn’t give a full company response, they replied with they'd get back to us in writing by the next week. We continued to ask for a reply, being that was the fourth meeting and our members needed to know what the company's position was, so that we could start bargaining. The company - Dave Higgon then started to go through the document, got to from memory about clause 19 and they said they had to go, and this was probably 50 minutes into the meeting. Myself and Peter Close suggested that the importance of the document should allow more time, particularly seeing Mr Higgon comes up from Sydney and he's available as indicated all afternoon, he'd need to be to go through the company's response. I suggested that they weren't bargaining in good faith and if they were can they please (indistinct) their response. We can do up their response for them and send it off to them so that it's fixed up. They continued to refuse to respond past that clause and pretty much went (indistinct) from then on. [My emphasis] 16
[75] The parties gave little intensive attention to the CFMEU template agreement during the course of the fourth meeting. The meeting appears to have continued on for about 50 minutes and culminated with Mr Higgon indicating he would respond to the CFMEU within the week. Indeed, Mr Higgon’s evidence was that at the fourth meeting the CFMEU re-introduced the Laing O’Rourke Agreement into the discussions, thereby confusing what had been assumed to have been agreed at the third meeting as the base document or CFMEU log of claims. 17 Indeed, Mr Pearson’s evidence about what was discussed at the fourth meeting lends weight to Mr Higgon’s claim in this respect (see para 54 above).
[76] The fourth meeting was the only meeting at which the parties could have been working from an agreed statement of claim (although Mr Higgon would agree it was no more than a drafting vehicle). That is, if I accept the CFMEU’s evidence alone, there has been only one meeting at which the parties have focused upon the CFMEU's settled statement of claims. And at that meeting the CFMEU adopted an adverse view of Mr Higgon’s request for a week in which to reply to the issues in which the parties were likely to be in contest.
[77] I add that it is questionable further as to precisely with what intent the CFMEU had proffered its template agreement.
[78] From the evidence cited immediately above, it appears to have been in Mr Pearson's mind at the time of the fourth meeting that he was seeking BMAPL's position so that the CFMEU could “start bargaining”. This suggests to me that the so-called bargaining was really a demand for a statement of global position in relation to the CFMEU template agreement in order to initiate bargaining rather than a continuation or urging of bargaining at a more discrete level.
[79] But putting this to one side, the incontrovertible facts based on Mr Pearson's evidence only are that the CFMEU did not settle its essential claims until the third meeting, and it then relied exclusively on the absence of BMC’s formal response (to non-agreed issues) in the fourth meeting as the basis of its claim to have been genuinely trying to reach agreement with BMAPL.
[80] In its decision in Re: Total Marine Services as cited above, the Full Bench considered the extent of the bargaining interactions between the parties in that case and found as follows:
[36] In this conclusion we believe that the Commissioner fell into error. It is clear on the evidence that the negotiations involved limited face to face meetings and limited articulation of many of the claims. Certain matters were being dealt with in concurrent industry negotiations. Many items were only set out in a list of headings and were not explained or discussed. The wage claim had not been specified. There is nothing to suggest that in taking the steps that it did, the MUA was other than genuine. Nevertheless, in our view it cannot be said in these circumstances that the MUA had genuinely tried to reach an agreement. The steps it had taken were preparatory to developing an agreement but in our view insufficient to satisfy the test its application needed to meet. The error made by the Commissioner involves both a mistake of fact and an error of principle.
[81] It appears to me on the evidence I have considered, that there was negligible if any discrete or substantive interaction between the parties that could be construed to contribute to a finding that the CFMEU had been genuinely trying to reach agreement. There had simply not been enough time for this to occur since the point at which the CFMEU had articulated its body of apparent claims (which seemingly at least was at the time of the third meeting only). Accordingly, when the parties did meet for the purposes of the fourth meeting, whilst there was some preliminary discussion about drafting or matters on which there was agreement, there was little other meaningful interaction in relation to any key issues whatsoever.
[82] I add, for purposes of wider context, that this is not a case in which the employer has demonstrated a disposition to reach an agreement without the involvement of an employee bargaining representative. The evidence as led shows the case to be quite the contrary.
CONCLUSION
[83] In view of the circumstances made out in the evidence discussed above, I cannot conclude that for the purposes of s.443 of the Act that the CFMEU had been genuinely trying to reach agreement. This is because the body of interactions between the parties as evidenced do not satisfy me for purposes of s.443(1)(b) of the Act that there had been a sufficient, actual effort to reach agreement by the CFMEU such that the CFMEU could be said to have genuinely tried to reach agreement. As did the Full Bench in Re: Total Marine Services, I conclude that the steps as taken to date by the CFMEU largely were preparatory or preliminary to the process of reaching an agreement, or else at best represented only an embryonic moment along that process, as it might have come to be.
[84] It is therefore necessary for me to dismiss the second application under s.437 of the Act. This is because s.443(2) of the Act does not allow FWA to make a protected action ballot order in relation to a proposed enterprise agreement except where it is satisfied, for the purposes of s.431(1)(b) of the Act, that the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr K. Crank of the CFMEU for the Applicant
Mr D. Williams of Minter Ellison, Solicitor, for the Respondent
Hearing details:
2012.
Brisbane.
30 March 2012.
1 Statutory declaration of Mr David Higgon dated 30 March 2012.
2 Transcript of proceedings dated 30 March at PN 180.
3 Transcript of proceedings dated 30 March at PN 234.
4 Transcript of proceedings dated 30 March at PNS 434-437.
5 Transcript of proceedings dated 30 March at PN 374.
6 Exhibit CFMEU1 - Enterprise Agreement from the CFMEU.
7 Transcript of proceedings dated 30 March at PNS 253, 255-258.
8 [2009] FWAFB 368.
9 Farstad Shipping (Indian Pacific) Pty Ltd v Maritime Union of Australia[2011] FWAFB 1686 at PN 8; J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2010] FWAFB 9963 at PNS 61-64, 84-90.
10 Transcript of proceedings dated 30 March at PN 258.
11 Transcript of proceedings dated 30 March at PN 258.
12 Transcript of proceedings dated 30 March at PN 212.
13 Transcript of proceedings dated 30 March 2012 at PNS 552-555.
14 Transcript of proceedings dated 30 March 2012 at PN 399.
15 Transcript of proceedings dated 30 March 2012 at PNS 540-541
16 Transcript of proceedings dated 30 March at PN 220.
17 Transcript of proceedings dated 30 March at PN 544.
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