Construction, Forestry, Mining and Energy Union v IPM Operation & Maintenance Loy Yang Pty Ltd

[2014] FWC 8389

[2014] FWC 8389

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
IPM Operation & Maintenance Loy Yang Pty Ltd
(C2014/5871)

Australian Municipal, Administrative, Clerical and Services Union
v
IPM Operation & Maintenance Loy Yang Pty Ltd
(C2014/5952)

Electrical power industry
COMMISSIONER LEWIN	MELBOURNE, 26 NOVEMBER 2014

Alleged dispute regarding consultation and other issues.

[1] This decision relates to two separate applications lodged with the Fair Work Commission (the Commission) by the Construction, Forestry, Mining and Energy Union (the CFMEU) and the Australian Municipal, Administrative, Clerical and Services Union (the ASU) against IPM Operation & Maintenance Loy Yang Pty Ltd (IPM). The CFMEU and the ASU have been granted permission to intervene in each others’ applications.

[2] The disputes relate to IPM’s consultation with its workforce in relation to proposed major changes to the organisational structure of the Loy Yang power station and the processes outlined in clause 25 — Consultation and clause 10.7 — Organisational Structure of the Loy Yang B Enterprise Agreement 2013 (the Agreement).

[3] In relation to the proposed major changes to the organisational structure of IPM, the CFMEU and ASU have balloted 26 employees at IPM to determine whether a majority of the employees that identify as affected by the changes proposed by IPM agree to the proposed changes to the organisational structure. A majority of those employees did not agree to the proposed changes to the organisational structure.

[4] IPM intends to hold further ballots of the affected employees.

[5] At a conciliation conference, held pursuant to the dispute concerning IPM’s consultation obligations under the Agreement, the CFMEU and ASU submitted that IPM could not conduct further ballots of the affected employees, as the CFMEU and ASU had already conducted a ballot of the self-identifying affected employees and a majority had not agreed to the changes to the organisational structure.

[6] The Commission directed the parties to provide submissions on whether the terms of the Agreement preclude the further ballots proposed by IPM. The parties filed submissions accordingly.

[7] The submissions of the CFMEU and ASU went to the issue of the process by which IPM sought to ballot the affected employees, that is, by balloting the affected employees on the basis of the discrete workgroups (referred to as workstreams) to which they belong within the workplace and determining whether a relevant majority for each discrete workgroup agrees to the proposed changes to the organisational structure, insofar as those changes affect that workgroup.

[8] On my reading of the relevant terms of the Agreement, the procedures adopted by the CFMEU and ASU and IPM respectively are neither mandated nor prohibited by the terms of the Agreement for the purpose of determining whether a majority of employees affected by proposals of the kind in issue approve those proposals.

[9] I therefore decide that no impediment arises from the terms of the Agreement to IPM holding the further proposed ballots of affected employees. While the Agreement prescribes that the changes to the organisational structure proposed by IPM under consideration must be approved by a majority of employees affected by the change, what will constitute the employees affected and how a majority of those employees is constituted is not provided for by the terms of the Agreement.

[10] The more substantive issue will arise in due course. That is, who are the employees affected by which proposals and whether a majority of the employees so determined have approved a relevant proposal for the purposes of the Agreement.

[11] The Commission acknowledges the concerns of the CFMEU and ASU in the conduct of the further ballots, especially in regards to anonymity. The Commission has advised the parties, and reiterates, that it is available to assist in the conduct of the ballots, as outlined at the conference. The Commission will advise the parties of arrangements for the conduct of the ballots proposed by IPM in order to provide the anonymity sought.

COMMISSIONER

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