Construction, Forestry, Mining and Energy Union v Hansen Yuncken Pty Ltd

[2017] FWC 2168

[2017] FWC 2168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Hansen Yuncken Pty Ltd
(B2017/289)

DEPUTY PRESIDENT SAMS SYDNEY, 18 APRIL 2017

Proposed protected action ballot of employees of Hansen Yunken Pty Ltd.

[1] This is an application, pursuant to s437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the Construction, Forestry, Mining and Energy Union (‘the Union’) employed by Hansen Yuncken Pty Ltd (‘the employer’). The Union seeks to ballot those employees of the employer who are members of the Union who are covered by the Hansen Yuncken Pty Ltd (Tasmania) CFMEU Tasmanian Enterprise Agreement 2014 and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining agent.

[1] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

‘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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

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

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.’

[2] The Fair Work Commission (the ‘Commission’) was initially advised by the employer on 11 April 2017, that it opposed the proposed order being granted. As a result, directions were issued for the filing of evidence and submissions and a hearing of the matter was listed for 14 April 2017. From the material filed by the employer it appeared that both parties had been bargaining and continued to bargain by arranging times for bargaining meetings. However, the negotiations appeared to have reached a stalemate.

[3] During a private conference convened shortly after the hearing had commenced, Mr B Maher, Manager for Tasmania, who appeared for the employer, conceded that the Union was genuinely trying to reach an agreement with the employer. Accordingly, given the provisions of s437, the employer’s position in relation to the order being granted had changed. Mr Maher said that the company neither supports nor opposes the proposed order being granted. In these circumstances, I am satisfied that 443(1)(b) is satisfied in that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. I am also satisfied that the application has been made in accordance with the requirements of s437 of the Act.

[4] Given that I am satisfied that s443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order, as sought by the Union. Therefore, an order and directions in terms of the draft order and directions attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

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