Construction, Forestry, Mining and Energy Union v CBI Constructors Pty Ltd

[2010] FWA 3554

[2010] FWA 3554

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Construction, Forestry, Mining and Energy Union
v
CBI Constructors Pty Ltd
(B2010/2831)

DEPUTY PRESIDENT MCCARTHY PERTH, 6 MAY 2010

Application for a bargaining order.

Background

[1] On 5 February 2010 the Construction, Forestry, Mining and Energy Union (“the CFMEU”) made an application to Fair Work Australia (“FWA”) for a majority support determination (“MSD”) pursuant to s.236 of the Fair Work Act 2009 (“the FW Act”). On 15 March 2010 I issued a MSD 1 for employees of CBI Constructors Pty Ltd (“CBI”) employed at the Woodside Pluto LNG Project (“the Project”). On 1 April 2010 a Notice of Appeal (“the Appeal”) against the determination I issued was lodged by CBI. That appeal is listed for hearing on 8 June 2010.

[2] The CFMEU asserts that following the issuance of the MSD endeavours have been made to establish meetings with CBI for the purposes of negotiating an enterprise agreement for employees. The CFMEU asserts that CBI has not agreed to meet with the CFMEU. CBI has not attended a negotiation meeting despite several attempts on the part of the CFMEU to arrange such. They say further that CBI has stated that it will not meet the CFMEU.

[3] The CFMEU also says that a detailed log of claims was faxed to CBI on 6 April 2010 and that CBI has issued no response to the draft log of claims, and indeed has not even signalled receipt of said document.

[4] The CFMEU therefore argues that CBI, as a bargaining representative, has not met and is not meeting the good faith bargaining requirements of s.228 of the FW Act through a failure to meet 2 and a failure to respond to proposals3.

[5] The CFMEU also argues that it is reasonable under the circumstances that I issue a bargaining order.

[6] CBI argues that there is no valid application for a bargaining order because the employees who will be covered by the proposed agreement include employees to whom the CBI Constructors Pty Ltd Agreement 2009 Agreement (the 2009 Agreement)” 4 applies. The 2009 Agreement is an employee collective agreement made under the Workplace Relations Act 1996 (Cth) (“the WR Act”) and will nominally expire on 23 April 2014.

[7] They argue that, by operation of Item 3 of Schedule 13 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, an application for a bargaining order in relation to a proposed enterprise agreement which will cover, inter alia, employees to whom the 2009 Agreement currently applies, cannot be made more than 90 days before 23 April 2014.

[8] CBI also infers that is has not failed to meet the good faith bargaining requirements and further argues that I should not find that it is reasonable in the circumstances to issue an order.

Consideration

[9] Section 229 of the FW Act deals with the circumstances in which a bargaining representative may apply for a bargaining order. FWA may make a bargaining order if:

(a) an application for the order has been made;

(b) the requirements of this section are met in relation to the agreement; and

(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.

[10] It is clear that s.229 requires each of the three conditions to be met. Ordinarily the manner in which I would deal with an application of this nature would be to make findings in regard to (a), (b) and (c) in that sequence although it is not obligatory to deal with an application in that way. In the circumstances of this matter I consider that it is appropriate to first consider whether it is reasonable in the circumstances to make an order.

[11] CBI submits that the circumstances here are that:

1. It has filed an appeal against the decision to make the MSD and does not wish to prejudice its rights pending the determination of that appeal;

2. It has an in-term collective agreement in place which will not expire until 2014; and

3. There is continuing uncertainty as to the length of time it will be on the Project.

[12] They submitted that their approach to the CFMEU’s approaches is not arbitrary or capricious and that there is an entirely rational explanation for it. CBI adds that their stance does not undermine collective bargaining as there is already a collective agreement in place which will not nominally expire until 2014.

[13] The CFMEU argues that:

1. Section 171 of the FW Act states clearly that an object of the legislation is to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level;

2. The employees of CBI, working on the Pluto Project, have made it very clear that they favour an enterprise agreement that will cover them whilst working there. They have followed the legislative provisions laid down and given CBI ample opportunity to meet and negotiate in good faith; and

3. Anything other than issuing a bargaining order would be to defeat the intent of the legislation and frustrate the process as contained in the FW Act.

[14] In some respects the arguments are similar to a balance of convenience argument, however I have resisted treating it as such as the more appropriate approach of CBI, if it wished to protect its position pending the outcome of the appeal, would have been to seek a stay of the MSD which it chose not to do.

[15] Rather, I have given more weight in this matter to the relatively short timeframes involved since the employees decided they wished to bargain for a new agreement and the CFMEU seeking this order. I also consider the timeframes and the responses of CBI need to be viewed in the context of the circumstances of CBI, including the nature of the project and the stage it is at.

[16] I therefore consider it is not reasonable in all of the circumstances to issue a bargaining order.

DEPUTY PRESIDENT

Appearances:

Ms S Walker of the Construction, Forestry, Mining and Energy Union

Mr J Blackburn of counsel with Mr A Davies for CBI Constructors Pty Ltd

Hearing details:

2010.

Perth:

April, 22 & 23.

 1   PR995084

 2 s.229 (1)(a)

 3 s.229(1)(c)

 4   No 0959 14844

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