Construction, Forestry, Mining and Energy Union v Lend Lease Building Pty Ltd (LLB)
[2016] FWC 4667
•12 JULY 2016
| [2016] FWC 4667 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
Lend Lease Building Pty Ltd (LLB); Lend Lease Building Contractors Pty Ltd
(B2016/142)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 12 JULY 2016 |
Proposed protected action ballot of employees of Lend Lease Building Pty Ltd and Lend Lease Building Contractors Pty Ltd.
[1] On Monday 11 July 2016 I issued an Order 1 arising from an application pursuant to section 437 of the Fair Work Act 2009 (the Act) which I had heard on Wednesday, 6 July 2016 at 2 pm.
[2] The applicant, the Construction, Forestry, Mining and Energy Union, Construction and General Division (CFMEU), had provided the respondents with a proposed agreement 2 concerning which it sought to bargain.
[3] Mr O’Grady, a National Assistant Secretary of the CFMEU, provided a statement in support of the application. 3
[4] The respondents provided a statement from Mr Hanrahan, Group Manager, Industrial Relations, of the respondents. 4
[5] The CFMEU provided an Outline of Submissions 5 and made oral submissions in support of the application.
[6] The respondents provided an Outline of Submissions 6 and made oral submissions in opposition to the application.
[7] Except for the issues dealt with in my decision there were otherwise no objections to the application based upon non-compliance with the requirements of the Act.
[8] Two issues were resolved in discussions between the parties on the day of hearing.
[9] The CFMEU advised the respondents that Clause 39 of the proposed agreement 7was intended to be limited to employees of the respondents. In that circumstance it was agreed that the respondents could have no objection to it.
[10] The CFMEU advised the respondents that Clause 8.8 of the proposed agreement 8 was intended to be limited to employees of the respondents or contractors of the respondents who were properly found to be employees of the respondents. In that circumstance it was agreed that the respondents could have no objection to it.
[11] At the hearing the respondents notified the CFMEU, for the first time, of an objection to an alleged discriminatory clause, Annexure 12, Clause 9.2 Redundancy 9. The respondents submitted that the clause, being discriminatory, could not be a permitted matter.The clause is set out below.
“9.2 In the event of redundancies required during the life of the Agreement, in occupational classifications where both Australian workers and temporary foreign workers are employed, temporary foreign workers will be made redundant first, given that temporary foreign workers are intended to supplement the Australian workforce.”
[12] It is arguable that this proposed clause is discriminatory. However, the existence of such a clause in the proposed agreement does not preclude a finding that the CFMEU is genuinely trying to reach agreement. The respondents took me to a number of single-member decisions which have been overtaken by Full Bench authority. Full Bench authority on this issue is clear. The existence of non-permitted matters and, I am satisfied, otherwise objectionable matters, in a claim by an applicant is just one of the issues to be considered when determining whether or not a party is genuinely attempting to bargain and reach agreement. It is not determinative. In this instance I was not persuaded that the existence of this clause in the proposed agreement, in all the circumstances surrounding this bargaining, supported a finding that the CFMEU was not genuinely seeking to bargain and reach agreement.
[13] I was satisfiedthat Clause 8.2 Use of Contractors deals with permissible matters and its inclusion in the proposed agreement could be an impediment to the Order.
[14] The respondents also contended that this application was precluded by the operation of s.438 of the Act. The section is set out below.
“Restriction on when application may be made
(1) If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be).
(2) To avoid doubt, making an application for a protected action ballot order does not constitute organising industrial action.”
[15] In this respect the respondent’s objection relied upon Clause 4 of the proposed agreement. 10It was common ground that there is an agreement in place which applies to the respondents’ employees in South Australia and that there is more than 30 days before the nominal expiry date of that agreement. Clause 4.1 and 4.2 is set out below.
“4.1 This Agreement applies to:
(a) Lend Lease Building Pty Ltd and Lend Lease Building Contractors Pty Ltd (“the Company”),
(b) The CFMEU; and
(c) All Employees of the Company employed as construction workers on its projects, including building, civil, and mechanical engineering projects.
4.2 This Agreement applies to work done by:
(a) Lend Lease Building Pty Ltd in all States and Territories; and
(b) Lend Lease Building Contractors Pty Ltd in all States and Territories except South Australia.”
(My emphasis)
[16] The respondent’s interpretation of this clause is a tortured creature and I rejected it. I was satisfied that clause 4 in the CFMEU‘s proposed agreement does not seek to cover employees in South Australia in breach of s.438, although it is clear that when the agreement applicable in South Australia expires the CFMEU intends to seek the extension of any agreement reached in this bargaining to those workers.
[17] The proposed agreement has a clause covering the employment of apprentices. Mr Hanrahan’s evidence was that apprentices are only employed by the respondents in Queensland. I could not identify any reason to exclude a clause dealing with apprentices in the proposed agreement for discussion with the respondents. It is possible that apprentices may be employed elsewhere in the term of any agreement reached in this bargaining. The inclusion of the clause did not persuade me that the CFMEU was not genuinely intending to bargain and reach agreement.
[18] It is possible that some clauses in the proposed agreement may not comply with the Building Code of 2013. If such clauses are included in any final agreement that inclusion might cause a difficulty for the respondents in settling contracts with the Commonwealth. No doubt that is a matter that the respondents would take to the bargaining table in respect of this proposed agreement. The CFMEU may bargain about these clauses. The respondents may fail to agree to them after taking into account the commercial consequences involved in any such agreement. I was not persuaded that this was a matter that prevented the issue of the Order sought by the CFMEU.
[19] The respondents objected to the final question in the Orders sought by the CFMEU and the conduct of the ballot by the Australian Electoral Commission.
[20] In the context of the other questions set out in the Order I am not persuaded that the final question is opaque. In this context the question relates to matters arising from and concerning the protected industrial action proposed.
[21] In relation to the conduct of the ballot the respondents’ submissions were confined to the suitability of following a previous Order, where the ballot was ordered to be conducted by a post. This was an application by the CFMEU seeking support for protected industrial action from employees. I considered that there should be compelling reasons to alter the ballot processes to one contrary to the preference of the applicant. There were no compelling reasons provided to me on which I might rely to alter the basis on which the ballot was sought to be conducted by the CFMEU.
[22] When issuing the Order I was satisfied that the applicant has been and is genuinely trying to reach an agreement with the respondents to the application. On this issue I accepted Mr O’Grady’s uncontested evidence.
[23] I was also satisfied that there was nothing in the operation of clause 4 that would preclude the success of the application arising from the application of s.438 of the Act.
[24] I was satisfied that the requirements of the Act had been met and that an Order must be made.
SENIOR DEPUTY PRESIDENT
1 PR582638
2 FOG 8 to Exhibit CFMEU 1
3 Exhibit CFMEU 1
4 Exhibit Lend Lease 1
5 Exhibit CFMEU 2
6 Exhibit Lend Lease 2
7 FOG 8 to Exhibit CFMEU 1 at page 45
8 FOG 8 to Exhibit CFMEU 1 at page 10
9 FOG 8 to Exhibit CFMEU 1 at page 192
10 FOG 8 Exhibit CFMEU 1 at page 10
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