Construction, Forestry, Mining and Energy Union v Mitcon Formwork Pty Ltd T/A Mitcon Formwork

[2016] FWC 8407

[2016] FWC 8407

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Mitcon Formwork Pty Ltd T/A Mitcon Formwork
(B2016/1228)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 23 NOVEMBER 2016

Proposed protected action ballot of employees of Mitcon Formwork Pty Ltd T/A Mitcon Formwork – adjournment request refused.

[1] On 21 November 2016 the Construction, Forestry, Mining and Energy Union (SA Branch) (CFMEU) lodged an application for a protected action ballot Order pursuant to s.437 of the Fair Work Act 2009 (the FW Act). That application was the subject of a telephone conference on 22 November 2016. Shortly before the conference, Mitcon Formwork Pty Ltd T/A Mitcon Formwork (Mitcon) advised that the application was opposed.

[2] In the conference, Mitcon explained its opposition on the basis that it asserted that the requirements of s.437(2A) were not satisfied. This section relevantly states:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

…

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).”

[3] For the sake of completeness, I note that s.173(2) states:

“173 Notice of employee representational rights

…

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).”

[4] The parties had a brief discussion about listing arrangements for consideration of the application. I note that the CFMEU sought that consideration of the matter be delayed for some days. I brought to the attention of the parties, the provisions of s.441 of the FW Act, which states:

“441 Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.”

[5] The matter was listed for hearing at 9.15 am on 24 November 2016.

[6] The need for this decision arises from an email from the CFMEU of today’s date. This email is in the following terms:

“I write also in respect to this matter and with the consent of the respondent’s representative.

This matter has been set down for hearing by the Commission at 9:15AM on Thursday.

The CFMEU is of the view that it is neither practical nor procedurally fair for the matter to proceed to hearing on this date.

The CFMEU notes that the matter in dispute about whether there has been a notification time is factually and legally complex. It will entail eliciting evidence from various witnesses about what was said and done at meetings.

We note that the requirement under s 441 is aspirational only. It does not mandate that a hearing of a s 437 application occur within 2 days.

We therefore respectfully request the Commission vacate the hearing on Thursday and program this matter as follows:

(a) the CFMEU file witness statements, supporting material and an outline of submissions by 29 November;

(b) the respondent file witness statements, supporting material and an outline of submissions by 6 December;

(c) the matter be listed for hearing on a date convenient to the Commission after 6 December.

If the Commission decides that the matter should remain listed for hearing on Thursday, we ask that the Commission publish its reasons for not acceding to our request.

Please do not hesitate to contact the undersigned about the foregoing.”

[7] I have considered this request, but am not prepared to agree to it. It seems to me that the provisions of s.441 impose a clear obligation on the Fair Work Commission to determine an application of this nature expeditiously. The application was made by the CFMEU and I have commenced from the premise that an application of this nature should be made when the applicant is ready to prosecute the claim. Simply put, if the CFMEU is not ready to pursue this application, it may consider withdrawing it until such time as it is ready.

[8] The information before me does not establish that the determination of a notification time is necessarily complex. None of the provisions of ss.173(2)(b), (c) or (d) appear to have application so that it is simply a question of whether the employer has agreed to bargain or has initiated bargaining.

[9] The proposition that an application of this nature can be made and then adjourned for some time, at the request and for the convenience of the applicant, seems to me to run contrary to the provisions of s.441 and to create the potential for applications of this nature to assume functions different to the purposes of the FW Act. To the extent that the respondent has consented to this request, I do not consider that this alters the obligation to address the matter expeditiously.

[10] If it is the case that the parties to this matter can reach agreement to bargain on a prospective basis, then it seems to me that a more appropriate course of action is to withdraw this application and lodge a fresh application which eliminates the need to argument over what has, or has not been agreed. Consequently, it may be appropriate for some attention to be given to this course of action as a matter of urgency.

[11] For the reasons I have set out, the matter will remain listed for 9.15 am on 24 November 2016. This decision is provided at the request of the CFMEU.

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