Construction, Forestry, Mining and Energy Union v Lend Lease Project Management and Construction (Australia) Pty Limited
[2012] FWA 5112
•21 JUNE 2012
[2012] FWA 5112 |
[Note: A correction has been issued to this document - see decision [2012] FWA 5746 and order PR526034 signed 6 July 2012] |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
Lend Lease Project Management and Construction (Australia) Pty Limited
(B2012/827)
COMMISSIONER MACDONALD | SYDNEY, 21 JUNE 2012 |
CFMEU application for protected action ballot order - employer opposes application - issue of permitted matters raised by employer concerning security of employment and apprentices claims by CFMEU - FWA upheld objection by employer to inclusion of apprentices - protected action ballot order, as amended by this decision, issued.
[1] On 30 May 2012, the Construction, Forestry, Mining and Energy Union (“the CFMEU”) lodged an application under section 437 of the Fair Work Act 2009 (Cth) (“the FW Act”) seeking a protected action ballot order for the employees of Lend Lease Project Management and Construction (Australia) Pty limited (“the Employer”), in relation to a proposed enterprise agreement.
[2] That application was allocated to my office (Macdonald C). The employer through its legal representative advised my office that it opposed the application. Discussions between the CFMEU and the employer’s representative did not resolve the employer’s concerns about the application.
[3] The application was set down for a Hearing on 5 June 2012.
[4] The CFMEU was represented by Mr S Maxwell, Senior National Industrial Officer, who called two witnesses:
David Noonan - National Secretary, CFMEU
Frank O’Grady - Assistant National Secretary, CFMEU
[5] The Employer was represented by Ms A DeBoos, Solicitor, Middletons Lawyers, who called the following witness:
Eric Hensley - Employee Relations Manager
BACKGROUND
[6] The CFMEU and the Respondent are parties to an enterprise agreement called Joint Development Agreement Mark 7 2009-2012 (“JDA 7”). It is the 7th iteration of a national agreement between those parties. JDA 7 expired on 31 March 2012.
[7] JDA 7 covers the directly employed construction workers (CWs) on the Respondent’s projects in Queensland, New South Wales, the ACT, Victoria and South Australia. There are at present 143 such employees covered by that agreement.
[8] Around 1 March 2012, the Respondent issued a formal Notice of Representational Rights to its employees throughout Australia.
[9] There have been several negotiating meetings between the parties between 23 February and 29 May 2012, inclusive. During negotiations, both parties have exchanged draft versions of their proposed JDA 8 (the replacement enterprise agreement for JDA 7).
[10] The CFMEU made a protection action ballot order on 30 May.
[11] The Respondent objects to the application as it asserts that the CFMEU is not genuinely trying to reach agreement as is required by section 443(1)(b) of the FW Act.
[12] The basis of this assertion is that the CFMEU is pursuing allegedly, non-permitted matters in two claims being pressed:
(a) the Employment Security/Contracting Out Clause; and
(b) the inclusion of apprentices in JDA 8.
[13] These two claims, says the Respondent, are not permitted matters as they are not matters which pertain to the employment relationship in question.
FINAL SUBMISSIONS
For the CFMEU
[14] Mr Maxwell, for the CFMEU, put the following in final submissions:
(a) The CFMEU had complied with the statutory requirements for the issuing of a protected action ballot order.
(b) The Respondent’s claim that the CFMEU was not genuinely trying to reach an agreement, per section 437(1)(b) of the FW Act, was rejected.
(c) The Respondent said that the CFMEU’s log of claims included an Employment Security/Contracting Out Clause that, by its terms, was not a permitted matter. This was rejected by the CFMEU which said that its amended Employment Security/Contracting Out Clause fell within the meaning of permitted matter and cited case law in support.
(d) The Respondent said that the CFMEU’s log of claims sought the inclusion of apprentices and this was not a permitted matter. The CFMEU rejected that claim. The CFMEU said that it was not a pre-requisite for the granting of a protected action ballot order, that bargaining had commenced let alone commenced over the issue of apprentices and relied upon case law in support.
For the Respondent
[15] Ms A DeBoos, for the Respondent, addressed the written document: Respondent’s Outline of Submissions, 1 and referred to case law. It was put that the Employment Security/Contracting Out Clause and the inclusion of apprentices in JDA 8, were not permitted matters, as defined by section 172(1)(a) of the FW Act: “matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement.”
[16] As to the issue of apprentices, this was not a permitted matter because:
(a) The Respondent had not issued a Notice of Representational Rights to the apprentices and the Respondent is not including them for consideration in the JDA 8.
(b) The CFMEU had not sought a scope order for the inclusion of apprentices in JDA 8.
(c) The Respondent only engages apprentices in Queensland and has no intention of engaging apprentices elsewhere.
(d) The eight (8) engaged apprentices in Queensland have their terms and conditions of employment covered by the Bovis Lend Lease/CFMEU Qld Joint Development Agreement (Apprentices) 2009.
[17] As to the Employment Security/Contracting Out Clause, this was not a permitted matter because:
(a) The said clause incorporates all of the classifications listed in Schedule B of the relevant modern award into JDA 8. The purpose of that incorporation is to impose the terms and conditions of JDA 8 on all subcontractors engaged to perform work which falls under any of the classifications listed in Schedule B - regardless as to whether the Respondent directly employed any employees in any of those classifications.
(b) The CFMEU claim (as explained in (a) above) was amended by the CFMEU by its email of 1 June 2012 (Ex. 6). The amended claim, it was submitted, did not alter the characterisation of this claim and it was still not a permitted matter. This was so, as the amended wording was subject to an interpretation, based on the evidence, that the CFMEU was not narrowing the scope of impact of the CFMEU’s original claim.
CFMEU in Reply
[18] The CFMEU in reply advised, as to the apprentices issue, that the enterprise agreement covering the apprentices has expired. Accordingly, it was open to the CFMEU to seek one agreement covering all employees engaged on work within the constitutional framework of the CFMEU.
CONSIDERATION
[19] The CFMEU and the respondent have had several negotiation meetings for the next generation enterprise agreement (JDA 8) to cover some 143 construction workers employed by the Respondent on projects in Queensland, New South Wales, the ACT, Victoria and South Australia.
[20] The parties have exchanged draft versions of their preferred JDA 8. The CFMEU’s draft contains two provisions which the Respondent says are not permitted matters and this is the basis of the respondent’s objection to the CFMEU’s application for a protected action ballot order. Those two provisions are (a) the Employment Security/Contracting Out Clause and (b) the inclusion of apprentices.
(A) Employment Security/Contracting Out Clause
[21] The Respondent’s objection was founded on the operation of two clauses contained in the CFMEU’s draft version: 2 clauses 34 and 4.
[22] Clause 34 has an opening preamble and then deals with contractors and supplementary labour hire. Clause 34 is reproduced below:
“34 EMPLOYMENT SECURITY, STAFFING LEVELS, MODE OF RECRUITMENT AND REPLACEMENT LABOUR
The employer recognises that in certain circumstances the use of contractors and labour hire may affect the job security of employees covered by this agreement.
The application of these requirements shall recognise location and circumstance, and where the requirements as noted below would provide a competitive disadvantage to the company. In these circumstances the Company and the Unions may agree to vary these requirements in a Project Specific Agreement. This agreement may not be unreasonably withheld.
34.2 Use of Contractors
If the company wishes to engage contractors and their employees to perform work in the classifications covered by this agreement, the company must first consult in good faith with potentially affected employees and their union. Consultation will occur prior to the engagement of sub-contractors for the construction works.
If, after consultation, the company decides to engage bona fide contractors, these contractors and their employees will receive terms and conditions of engagement (or terms no less favourable) as they would receive if they were engaged as employees under this agreement performing the same work. The use of sham sub-contracting arrangements is a breach of this agreement.
34.3 Use of Supplementary Labour Hire
Where there is need for supplementary labour to meet temporary/peak work requirements, such labour may be accessed from bona fide businesses, including sub-contractors and labour hire companies, following consultation with the Company Consultative Committee and/or union(s) party to this agreement. The company shall ensure that any workers engaged by such businesses and performing work described in the classifications of this agreement shall receive wages, allowances and conditions not less than those contained in this agreement.
Supplementary labour is defined as temporary “top up” labour designed to meet short situations such as absences due to sick leave, annual leave, and short time work peaks. The company undertakes not to use supplementary labour in any position on site for a period of more than four weeks. Any departure from this maximum period shall require the consent of the Union.”
[23] It is to be noted that clause 34.2 Use of Contractors, expresses the extent of the coverage of this clause 34 by reference to “classifications”. Thus: “If the company wishes to engage contractors and their employees to perform work in the classifications covered by this agreement, ...” . Relevantly, clause 4(a) reads:
“4. Application
(a) Subject to (c) below, this Agreement will apply to and cover all employees of the Company engaged on work in any of the classifications contained in Appendix A and/or Schedule B of the Award (including apprentices) on its projects, including, building, civil, and mechanical engineering projects, in all States and Territories.
(b)
(c)
(d
(e) ...”
[24] The reference to “the Award” in clause 4(a) is a reference to the modern award: Building and Construction General On-site Award 2010. The reference then in clause 4(a) to the classifications contained in Schedule B of the modern award means that the scope of the operation of clause 34 is to be read as applying to all of the classifications listed in Schedule B.
[25] The Respondent submitted that the combination of clauses 34 and 4 meant that if the Respondent engaged a contractor and its employees to perform work that fell under any of the classifications found in Schedule B, then the contractor and its employees will receive terms and conditions of engagement no less than that provided under JDA 8 - even where the classification work being performed is a classification work not being carried out by an employee of the Respondent. The Respondent provided evidence that the CFMEU had later limited the extent of its claim to being those Schedule B classifications identified as “CFMEU trades”. 3
[26] The Respondent is opposed to imposing the terms and conditions of JDA 8 on all subcontractors and their employees on site, where those subcontractors and their employees performed work in CFMEU trades classifications regardless of the Respondent not employing directly any employee(s) in those CFMEU classifications.
[27] The Respondent submitted that the CFMEU proposal was the “exact clause” 4 recently examined by Senior Deputy President Richards and rejected by him as not being a permitted matter (“the Multiplex Case”).5 Accordingly, it was submitted, I should draw the same conclusion.
[28] I note that the wording of the Employment Security/Contracting Out Clause in the Multiplex Case is not exactly the same as the wording of the clause for my consideration. However, “exact” may be a reference to the intent of the Multiplex clause being the same as the clause for my consideration. That is, the Multiplex clause and the unamended initial claim of the CFMEU are the same: both clauses require the employer to extend to all contractors and their employees, the same terms and conditions that apply to the employer’s direct employees covered by the proposed enterprise agreement - regardless as to whether the employer employed employees to perform the type of work carried out by any such contractors and their employees.
[29] The consideration of the Respondent’s submission based on the Multiplex Case decision is not clear cut because the CFMEU amended its Employment Security/Contracting Out Clause and referred to a Full Bench decision of FWA not put to the Senior Deputy President for his consideration. This amendment was done after the CFMEU lodged its protected action ballot order and following discussions between the parties thereafter. The amended version is set out in its email of 1 June 2012 (Ex.9). Reproduced below is the email extracted from the Respondent’s Outline of Submissions (Ex 9). That approach has been taken for convenience sake because the Respondent emphasises two words in the email for the purpose of arguing against acceptance of the content of the email in respect of the issue of permitted matters. The “Alice” in the email is Ms A DeBoos.
“The email states:
Dear Alice,
Further to your email of yesterday evening and our discussion with Eric Hensley this morning the union wishes to advise as follows:
1. The union is only seeking to include permitted matters within the agreement.
2. The union is only seeking an agreement that covers the direct employees of Lend Lease and the work that they can perform.
3. The employment security clause and the appendices, including that part of the NSW Appendix applying to Barangaroo, must be read in the context of the above two points.
4. In terms of the employment security clause, the union is claiming that if Lend Lease engages contractors, employees of contractors, or labour hire employees to perform work that could be performed by employees of Lend Lease then such persons must be afforded terms and conditions that are no less favourable to the terms and conditions for employees of Lend Lease.
5. As the company currently employs apprentices and has a history of employing apprentices the union still seeks to include clauses dealing with apprentices.
In view of the above points of clarification that we have made we believe that our claims are in accordance with permitted matters as determined by a number of Full Bench Decisions. In regards to the final wording of any agreement there is no requirement that this be finalised before a Protected Action Ballot Order can be made.
[our emphasis]”
[30] The Respondent submitted that these two emphasised words should be construed as meaning that the CFMEU had not amended its initial position as set out in Exhibit 3 and was still seeking to have the terms and conditions of JDA 8 extended to contractors and their employees who performed work in CFMEU trades classifications, regardless of the Respondent not directly employing employees in all of the CFMEU trades classifications.
[31] I reject the latter submission based on the evidence of Frank O’Grady, given under cross-examination from Ms DeBoos. He was challenged that the email’s wording had not amended the CFMEU’s initial claim of coverage and he denied that challenge with responses of: “That’s what it says to me” and “you’ve got to read the clause in its entirety. ” 6Given Mr O’Grady’s denial of that challenge, then I understand that the email of 1 June 2012 intends that where the Respondent engages contractors and their employees to perform work where such work is presently or will be in the future carried out by the employees of the Respondent, then the terms and conditions (at least) of JDA 8 will apply to those contractors and their employees. That understanding on my part also comes from my questioning of Mr Maxwell, advocate for the CFMEU, during final submissions.7
[32] The Respondent raised an issue in final submissions about the interpretation of clauses 34 and 4 in the absence of the email, should there be a dispute in the future about the meaning of its operation. That is not an issue for my consideration. If the Respondent has a concern about the wording - meaning of the email, then it is a simple matter for the Respondent, during negotiations, to amend the email wording to its satisfaction and reflecting the CFMEU’s intent, and incorporate that amended wording into a draft version of the intended JDA 8 agreement. That way, the Respondent tests, during negotiations, the intent of the CFMEU’s email.
[33] The outcome of the foregoing consideration is that the CFMEU’s Employment Security/Contracting Out Clause is to be read as covering two scenarios where the Respondent engages contractors and their employees: (a) to perform work in the Schedule B classifications presently being utilised by the Respondent, and (b) to perform work in the Schedule B classifications that might, in the future be utilised by the Respondent by way of its engaging employees to work in those as yet un-utilised classifications.
[34] As to the first scenario, the Respondent does not say that that is not a permitted matter scenario.
[35] As to the second scenario, the Respondent says it is not a permitted matter scenario. It relies upon the evidence of Mr Hensley, Employee Relations Manager, who said that the Respondent has no intention of engaging employees to work on classifications beyond that presently being used by the Respondent. 8 The Respondent also relies upon the decision of Richards SDP in the Multiplex Case to support its argument that the second scenario is not a permitted matter. For the reasoning set out below, I do not concur with the Respondent’s submission.
[36] On my reading of the relevant legislation and case law, the CFMEU’s second scenario is a permitted matter.
[37] Section 443(1)(b) of the FW Act prescribes, inter alia, the circumstances in which FWA must make a protected action ballot order:
“(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) ...
(b) FWA 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)
(3)
(4)
(5) ... “
[38] The Respondent opposes the granting of the protected action ballot order by submitting, as set out above, that the CFMEU’s Employment Security/Contracting Out Clause, as amended by the 1 June email, is not a permitted matter as defined by section 172(1)(a) which states:
“(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:
(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;
(b)
(c)
(d) ...”
[39] However, the CFMEU referred to a Full Bench Decision 9 to support its claim that its amended position was a permitted matter: the Asurco Case. The Full Bench considered an appeal by the company against a decision of Deputy President Bartel to grant an application for a protected action ballot order. One of the grounds of appeal went to the Deputy President’s finding that the Employment Security/Contracting Out Clause before him was a permitted matter. The relevant clause before the Deputy President is set out below:
“19.1 USE OF CONTRACTORS
(a) If the company wishes to engage independent contractors to perform work that might be performed by current or future employees under this agreement, the company must first consult in good faith with potentially affected employees and their union.
(b) If, after consultation, the company decides to engage bona fide contractors, these contractors must be afforded the same terms and conditions of engagement (or terms no less favourable) as they would receive if they were engaged as employees under this agreement performing the same work. The use of sham sub-contracting arrangements would constitute a breach of this agreement.
19.2 SUPPLEMENTARY LABOUR HIRE
Where there is a need for supplementary labour to meet temporary/peak work requirements, such labour may be accessed from bona fide labour hire companies following consultation with the Joint Consultative Committee and/or workplace delegate. If labour hire is to be used the company shall ensure that any workers engaged through a supplementary/labour hire arrangement and who are under the direction and control of the company performing work that, had it been done by direct employees of the Company would have been covered by this Agreement, shall receive wages, allowances and conditions not less than those contained in this Agreement.”
[40] Although the wording of that Employment Security/Contracting Out clause is not the same as the one before me, it is nevertheless the same as to its intent. That is, that clause requires that contractors and their employees must have, at least, the same terms and conditions of an enterprise agreement applied to those contractors and their employees who perform work that might be performed by current or future employees.
[41] The Full Bench held that the clause before Deputy President Bartel was a permitted matter and rejected the company’s appeal. 10 Thus, the Full Bench held that the clause was a permitted matter not only for presently engaged employees but as well, employees yet to be engaged.
[42] On its face, the Employment Security/Contracting Out Clause in the Asurco Case assists the CFMEU’s claim before myself. This is so, as that clause does not define the classifications covered by the operation of that clause and speaks, in effect, of classifications “that might be performed by current or future employees under this agreement ...”. Neither party took me to the enterprise agreement to which this particular clause applies. My research, if correct, found an enterprise agreement called: Asurco Contracting Pty Ltd Collective Agreement 2010-2013. Clause 4.1 Wage Rates lists, inter alia, named classifications. Clause 1.5 Incidence & Persons Bound advises that the agreement replaces any existing agreements and any award. My reading of those clauses, then, is that the named classifications are the only classifications having application at the company’s worksite. There is no capacity provided by the enterprise agreement to have one or more classifications in the award come into operation in the future because the award (and its other classifications not named in clause 4.1) cannot be utilised by the company (Asurco) - except by way of an application under the FW Act to vary the enterprise agreement during its life of operation.
[43] If my research has identified the correct enterprise agreement applying in the Asurco’s Case then that Employment Security/Contracting Out Clause does not operate in the way intended by the CFMEU for the Respondent’s operations and accordingly does not support the CFMEU’s claim that the Employment Security/Contracting Out Clause before myself is a permitted matter. This is so, as the CFMEU seeks to have the clause apply to un-named classifications - that is, classifications not presently being utilised by the Respondent and in the circumstance where the Respondent says that it will not be utilising any other classifications (not presently being used) in the future.
[44] The CFMEU put forward another Full Bench decision in support of its claim that its Employment Security/Contracting Out Clause is a permitted matter: John Holland’s Case. 11This case concerned an appeal by John Holland Pty Ltd against a decision of Senior Deputy President Richards to grant applications by the AMWU and the AWU for protected action ballot orders. There were four grounds of appeal with the last one being that the Senior Deputy President had erred in finding that the AMWU had been and was genuinely trying to reach an agreement. The company advanced the argument that the AMWU was not genuinely trying to reach an agreement because the AMWU was seeking to incorporate the whole of the metal industry award in the next enterprise agreement to operate amongst the parties. The company submitted that “the AMWU was seeking the inclusion of terms which were irrelevant to the relationship between those to be covered by the proposed agreement and therefore not permitted by s.172(1)”.12 The Full Bench then noted that that appeal argument was arguably not put before Senior Deputy President Richards. I also note that this is the Full Bench decision (John Holland’s Case) not brought to the attention of SDP Richards for his consideration in the Multiplex Case which case the Respondent submitted I should follow.
[45] The Full Bench rejected the company’s claim that the incorporation of the whole of the metal industry award was not a permitted matter. The Full Bench reasoning is set out below:
“[51] Most cases in which it is alleged that certain matters are not permitted involve the identification of specific claims. This case is different. It is submitted that by necessary implication the incorporation claim involves a claim for matters which are irrelevant to the relationship and therefore not permitted. We doubt the correctness of that proposition. It is difficult to see how matters in the metal industry award which are incapable of application to the appellant’s employees could have any legal effect in relation to them. Nor is there any suggestion that the AMWU intends irrelevant provisions to have any effect. Looked at from the perspective of the bargaining agent, it is to be assumed that incorporation is sought in order to ensure that no relevant condition ceases to apply rather than that irrelevant conditions should commence to apply. We reject the suggestion that pursuit of the claim for incorporation of the metal industry award involved a claim for matters which are not permitted.”
[46] On my reading of the above reasoning, the Full Bench has described the intended insertion of the entire metal industry award by the AMWU as a “just in case” motivation, to ensure no relevant condition ceases to apply to an employee(s). In the case before myself, it seems to me that the CFMEU’s claim can be described as a “just in case” motivation. That is, if the Respondent decides to utilise one or more of the CFMEU trades classifications contained in Schedule B of the modern award, by directly engaging an employee(s) in one or more Schedule B classifications not presently being utilised, then the Respondent is to apply (at least) the terms and conditions of JDA 8 to any contractor(s) and its employees working in those not yet utilised classifications
[47] Although the CFMEU’s claim extends to what classifications might be utilised by the Respondent in the future, that claim falls within the reasoning of the Full Bench as being a permitted matter. Thus the Full Bench does not say that its reasoning about what constitutes a permitted matter is to be assessed at a precise moment in time. Rather, the frame of reference for the Full Bench is the applicability or non-applicability of those matters contained in the metal industry award to the employees of John Holland Pty Ltd. So, there are matters having immediate applicability to the current employees and there are matters that might have applicability at another point in time during the life of the enterprise agreement. In that sense, there are matters that have immediate applicability and other matters lay dormant for future applicability if the company changes its business operation in some way at its own initiative or in response to changing market conditions.
[48] Although the Respondent gave evidence through its Employee Relations Manager that it does not intend to utilise classifications contained in Schedule B (and which are not currently being utilised), I do not see that intention as being decisive. An intention expressed now, during the enterprise agreement bargaining cycle, is done so without knowing what the future holds for the Respondent - either through its own business initiative or in response to changing market conditions.
[49] I am allowed to consider the future as a factor when considering if a matter is a permitted matter. That follows, because enterprise agreements apply to current and future employees of an employer throughout the life of an enterprise agreement.
[50] If the classifications sought to be incorporated by the CFMEU are not utilised over the life of the enterprise agreement by the Respondent, then per the Full Bench reasoning in the John Holland Case, those classifications will have no legal effect. But should the Respondent’s intention alter anytime during the life of the enterprise agreement, then the Respondent can utilise one or more of the applicable CFMEU trades classifications incorporated into the enterprise agreement.
[51] I further point out that the Respondent’s potential utilisation of one or more CFMEU trades classifications, sits not only comfortably with the reasoning of the Full Bench in the John Holland Case but as well with the objects of the FW Act. Section 3(a) Object Of This Act, relevantly states as to business flexibility that:
“The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
[emphasis added]
(b)
(c)
(d)
(e)
(f)
(g) ... ”
[52] The incorporation of the CFMEU trades classifications into JDA 8, provides a flexibility for the business of the Respondent in respect of its future operational needs over the life of JDA 8.
Conclusion
[53] Having considered all of the evidence and submissions, I conclude for the reasoning set out above, that the CFMEU’s claim to incorporate the CFMEU trades classifications into JDA 8, is a claim that is to be characterised as a permitted matter. The claim then by the CFMEU is that if the Respondent utilises during the life of JDA 8, any CFMEU trades classifications, not presently being utilised, and if the Respondent engages any contractor(s) and its employee(s) to perform work in those as yet non-utilised CFMEU classifications, then the Respondent will apply the terms and conditions of JDA 8 to the contractor(s) and its employee(s) who perform work on those as yet non-utilised CFMEU classifications. Accordingly, I reject the Respondent’s claim that it is not a permitted matter.
[54] I will grant the protected action ballot order sought by the CFMEU, in respect of its claim for incorporation of CFMEU trades classifications into JDA 8.
(B) Inclusion of Apprentices
[55] The CFMEU has included in its preferred enterprise agreement version, a clause pertaining to apprentices. The CFMEU’s application for a protected action ballot order extends then to industrial action over the issue of apprentices and their inclusion in JDA 8.
[56] The Respondent also opposes that application on the basis that the inclusion of apprentices is not a permitted matter. The Respondent’s Outline of Submissions (Ex. 9) sets out the grounds in the support of that objection.
[57] One of those grounds is that the Respondent does not employ apprentices anywhere else (apart from Queensland) and has no intention of doing so. The use of the term “employ” infers an employer - employee relationship which is a necessary requirement for a matter to be characterised as a permitted matter, pursuant to section 172(1)(a).
[58] Under cross-examination, Mr Hensley, Employee Relations Manager, gave evidence that the apprentices utilised by the Respondent are not employees of the Respondent. The apprentices (only found in Queensland) are indentured to a group training company and the Respondent is the host employer. At the end of their apprenticeships some of the apprentices apply for employment with the respondent. 13
Conclusion
[59] The CFMEU is seeking to have apprentices included in the coverage of JDA 8 in the circumstance where the apprentices are currently indentured to a third party and the Respondent’s role is that of host employer.
[60] Given that scenario, I agree with the Respondent’s submission that the indentured apprentices to a third party should not form part of the CFMEU’s claim for inclusion in JDA 8.
[61] Accordingly, the protected action ballot order will not extend to those Queensland indentured apprentices.
BALLOT PROCESS
[62] The ballot process, per the protected action ballot order, is to be conducted by the Australian Electoral Commission.
[63] The Respondent opposes that ballot process taking place as an attendance ballot and says that the ballot process should be by way of a postal ballot - if FWA grants the CFMEU’s application for a protected action ballot order. The Respondent’s evidence in support of a postal ballot was based on its business operation which is spread over some 36 different sites across urban, regional and rural centres. Accordingly, it was submitted, that it was an unnecessary and unreasonable burden on the employees (who will lose pay and suffer inconvenience) and the Respondent will suffer lost time and productivity as a result - loss of one hour to a full day. 14
[64] I was not presented with any evidence from the employees to be balloted as to their views on their preferred method of voting - attendance or postal -- including their views on the Respondent’s claim of lost pay and inconvenience.
[65] In the absence of that evidence and given the Respondent’s operation has many different sites, I have decided that the ballot process is to be a postal vote process.
CONCLUSION
[66] The CFMEU has applied for a protection action ballot order but to which the Respondent has taken objection in respect of two matters.
[67] For the reasoning set out above, I have upheld one objection by the Respondent - that is, the matter of the Queensland indentured apprentices is not to be included in the protected action ballot order process. The other objection by the Respondent has not been upheld - that is, the CFMEU’s incorporation of the CFMEU trades classifications from Schedule B into JDA 8 is a permitted matter.
[68] The CFMEU has otherwise complied with the requirements of sections 447, 440 and 443. The application for a protected action ballot order will be granted but as modified by this Decision. The draft order sought by the CFMEU, as modified by this Decision, will be made in those terms. The date for the close of the ballot is stated in the draft order as 14 June 2012. That date is amended to read 6 July 2012.
[69] The application for a protected action ballot order, as modified by this Decision is granted and will be issued with this Decision in PR524759.
COMMISSIONER
Appearances:
Mr S Maxwell, Senior National Industrial Officer, for the CFMEU
Ms A DeBoos, Solicitor, Middletons Lawyers, for the Employer
Hearing details:
2012
Sydney
5 June
1 Exhibit 9
2 Exhibit 3
3 Exhibit 1, para 43
4 Exhibit 9, para 20
5 Construction, Forestry, Mining and Energy Union v Brookfield Multiplex Australia Pty Ltd [2012] FWA 4051
6 Transcript PN 173 to PN 180
7 Transcript PN 641 to PN 674
8 Exhibit 1, paras 11 to 17
9 Asurco Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 6180
10 Ibid, paras 10 and 11
11 John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2010] FWAFB 526
12 Ibid., para 50
13 Transcript PN 287 to PN 295
14 Exhibit 9, para 36
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