Construction, Forestry, Mining and Energy Union v Loy Yang Power Management Pty Ltd

[2012] FWA 2873

[2012] FWA 2873

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Loy Yang Power Management Pty Ltd
(B2012/643)

COMMISSIONER BISSETT MELBOURNE, 3 APRIL 2012

Proposed protected action ballot by employees of Loy Yang Power Management Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Construction, Forestry, Mining and Energy Union (CFMEU) for a protected action ballot order in relation to certain employees of Loy Yang Power Management Pty Ltd (LYP). The application was made on 28 March 2012 and a hearing was held before me on 2 April 2012.

[2] Mr Follett on behalf of LYP indicated that it does not advance any substantive grounds of opposition to the order being made. That is it does not challenge that the CFMEU have met the procedural requirements of the Act in making such an application nor that it has been and is genuinely trying to reach an agreement.

[3] Section 443(1) of the Act states:

443 When 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) an application has been made under section 437; and

(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.

[4] I am satisfied that the application has been made under s.437 of the Act.

[5] The CFMEU tendered a witness statement of Mr Bryan Walsh, which was accepted by LYP without the need to cross-examine. On the basis of this statement I am satisfied that the CFMEU has been, and is, genuinely trying to reach an agreement as is required by s.443(1)(b) of the Act.

[6] Therefore, I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the order must be made.

[7] LYP, however, raises an issue with respect to the content of the order. LYP seeks that, due to the nature of the business, I should order that LYP be given seven working days (as defined in s.12 of the Act) notice of any industrial action arising from questions 1, 2 and 3 of the proposed order, rather than the statutory minimum period of three days, in relation to action. LYP relies on the power given to FWA under s.443(5) of the Act which states:

443 When FWA must make a protected action ballot order

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

[8] Section 414 of the Act provides:

414 Notice requirements for industrial action

Notice requirements-employee claim action

(1) Before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph—that period of notice.

[9] After consideration of the evidence and submissions, I am satisfied that exceptional circumstances exist which justify that the period of written notice referred to in s.414(2)(a) should be extended to seven working days in relation to any industrial action arising from questions 1, 2 and 3 of the order.

[10] The order (PR522046) is based on the draft order provided by the CFMEU and to this effect is issued in conjunction with this decision.

[11] Detailed reasons for this decision will be issued shortly.

COMMISSIONER

Appearances:

Y. Bakri for the Applicant.

M. Follett for the Respondent.

Hearing details:

2012.
Melbourne:
April 2.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR522028>