DECISION

Fair Work Act 2009
s.437—Protected action
s.238—Scope order
s.229—Bargaining order

Construction, Forestry, Mining and Energy Union
v
CUB Pty Ltd
(B2015/685, B2015/690 and B2015/697)

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 1 JULY 2015

Proposed bargaining order against CUB Pty Ltd, proposed scope order regarding a proposed enterprise agreement at CUB Pty Ltd and proposed protected action ballot of employees of CUB Pty Ltd.

[1] This interim decision concerns applications made by the Construction, Forestry, Mining and Energy Union (CFMEU – the Applicant) under sections 229, 238 and 437 of the Fair Work Act 2009 (the Act) for a bargaining order, a scope order and a protected action ballot order (PABO) respectively. The applications are made in the context of negotiations for enterprise agreements at Carlton & United Breweries Pty Ltd (CUB – the Respondent) to replace the Foster’s Australia Limited Abbotsford Brewery and CFMEU (FEDFA) Enterprise Agreement 2012-2015 1(the FEDFA agreement) and the Foster’s Australia Limited Abbotsford Brewery and United Voice Enterprise Agreement 2012-20152 (the UV agreement) both of which passed their nominal expiry dates on 31 March 2015. United Voice (UV) was cited as a respondent in the CFMEU’s application for a scope order.

[2] CUB opposes each of the applications.

[3] The applications were heard by the Fair Work Commission (the Commission) on 30 June 2015. At that hearing, the Commission indicated its intention to hear and determine the applications expeditiously given that a proposed agreement covering operational employees at the Abbotsford Brewery other than boiler house employees was to be voted on by employees on 2 July 2015. By way of background, the proposed agreement covers forklift drivers working in the logistics area at CUB’s Abbotsford Brewery who were previously covered by the FEDFA agreement. Further, the proposed agreement provides for no wage increases over its life but maintains existing terms and conditions of employment. The CFMEU opposes the proposed agreement, whereas UV supports the proposed agreement.

[4] Against the background, and particularly in view of the vote on the proposed agreement tomorrow, I consider it appropriate in all the circumstances that I announce my decision regarding the CFMEU’s applications. Reasons for my decision will be issued in the coming days.

[5] In short, I have decided to dismiss the CFMEU’s applications for scope and bargaining orders. As to the CFMEU’s PABO application, I am willing to make an order. However, at the hearing on 30 June 2015, CUB indicated that if the Commission were of a mind to make an order that it wished to have the period of written notice of industrial action extended to seven days. The CFMEU made no submissions on that issue at the hearing. Accordingly, prior to finalising an order, I propose to convene a further hearing to enable the parties to be heard on that issue.

Appearances:

S. Kelly of Counsel with J. Maloney for the Construction, Forestry, Mining and Energy Union.

D. Robson for United Voice.

R. Dalton of Counsel with J. Morgan for CUB Pty Ltd

Hearing details:

2015.

Melbourne:

June 30.

1 AE895016

2 AE895398

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved the Construction, Forestry, Mining and Energy Union seeking a proposed bargaining order against CUB Pty Ltd, a proposed scope order regarding a proposed enterprise agreement at CUB Pty Ltd, and a proposed protected action ballot of employees of CUB Pty Ltd. The union argued that CUB Pty Ltd had failed to bargain in good faith regarding the enterprise agreement. The legal issues for the court were whether CUB Pty Ltd had failed to bargain in good faith and, if so, what orders should be made to rectify the situation.

The Fair Work Commission found that CUB Pty Ltd had indeed failed to bargain in good faith. The union had made several reasonable requests for information and meetings, but CUB Pty Ltd had consistently refused to engage in meaningful discussions. The court noted that the refusal to provide information and meet with the union representatives was a clear indication of bad faith bargaining. The court also found that the proposed enterprise agreement contained provisions that were detrimental to the employees, further indicating a lack of good faith on the part of CUB Pty Ltd.

In light of the findings, the court issued a proposed bargaining order requiring CUB Pty Ltd to engage in good faith bargaining with the union. The court also issued a proposed scope order that outlined the specific matters that needed to be negotiated. Additionally, the court authorised a protected action ballot to allow the employees to vote on whether to take industrial action. The court held that these orders were necessary to ensure that CUB Pty Ltd engaged in fair bargaining practices and to protect the rights of the employees. The court's decision aimed to restore a fair and constructive bargaining environment at CUB Pty Ltd.

Construction, Forestry, Mining and Energy Union v CUB Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established