Construction, Forestry, Mining and Energy Union v Mitolo Constructions Pty Ltd
[2010] FWA 4232
•8 JUNE 2010
[2010] FWA 4232 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
Mitolo Constructions Pty Ltd
(B2010/3049)
COMMISSIONER HAMPTON | ADELAIDE, 8 JUNE 2010 |
Application for a protected action ballot by employees of Mitolo Constructions Pty Ltd - pattern bargaining - whether established and relevant to application - whether bargaining conduct is consistent with requirements of party seeking an agreement with the relevant employer - whether the CFMEU is genuinely trying to reach an agreement.
[1] The Construction, Forestry, Mining and Energy Union (the CFMEU or the union) has made application pursuant to s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot to be undertaken by its members at Mitolo Constructions Pty Ltd (Mitolo or the employer).
[2] During the course of a hearing conducted in relation to this application on 7 June 2010, Mitolo opposed the granting of the proposed orders.
[3] Having considered the matter overnight, I have earlier today advised the parties of my determination and issued a ballot order (PR997744). In so doing, I indicated that I would subsequently issue reasons for decision, which I now do.
[4] The Act provides relevantly as follows:
“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 FWA 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.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless FWA specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) are represented by a bargaining representative who is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
438 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.
…
440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:
(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.
441 Application to be determined within 2 days after it is made
(1) FWA 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, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.
…
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.
(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(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.
Note: Under subsection 414(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.”
[5] The application is opposed on the basis that Mitolo contends that the CFMEU has not demonstrated that it has been genuinely trying to reach an agreement with the employer of the employees who are to be balloted, as required by s.443(1)(b) of the Act. It is not otherwise disputed that the union is eligible to make this application and has done so in accordance with the relevant statutory requirements.
[6] The CFMEU, which was represented by Mr Roberts, led evidence from Mr Aaron Cartledge, the union’s State Assistant Secretary and the official having carriage of the negotiations with Mitolo to this point. This was in the form of an affidavit and testimony during which he was cross-examined on behalf of the employer.
[7] The CFMEU contended that it has at all times conducted itself in accordance with the Act and that it has been and remains genuinely trying to reach an agreement with Mitolo. It further argued that following various meetings and proposals being advanced, the parties could not agree upon the level of a salary adjustment and the conditions applicable to an inclement weather scheme being proposed by the employer. The union also rejected the notion that it was pattern bargaining and contended that it was always prepared to recognise different requirements for employers in the industry.
[8] Mr Earls of the Master Builders Association of SA represented Mitolo and contended that the CFMEU is actually pattern bargaining with Mitolo and a number of similar businesses. Whilst recognising that this concept was not presently a direct consideration, the employer has argued that the evidence did not support a finding that the union was genuinely trying to reach an agreement with it. This it was suggested, flowed from the alleged pursuit of common wage outcomes and agreement terms in the formwork sector of the industry and what was said to be the failure of the CFMEU to put the details of the employer’s latest proposal on inclement weather to the employees prior to making this application.
[9] Although not in dispute, I have considered all of the other prerequisites for the granting of a protected action ballot and I am satisfied that these have been met.
[10] In terms of the particular requirements of s.443(1)(b) of the Act at issue here, these have been considered in particular by two relatively recent Full Benches of Fair Work Australia in Total Marine Services Pty v Maritime Union of Australia 1(Total Marine Services) and John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers Union 2(John Holland).
[11] In the most recent case of John Holland, the Full Bench directly considered the interaction between the protected ballot provisions and those relating to pattern bargaining as set out in s.412(3) of the Act. It concluded as follows on that issue:
“[38] We have come to the conclusion that the expression “genuinely trying to reach agreement” in s.443(1)(b) should be given its ordinary meaning unaffected by the terms of s.412(3). It is clear from our analysis of the statutory provisions that the term “genuinely trying to reach an agreement” is given a particular or specialised meaning for the purpose of the definition of pattern bargaining. That definition is only relevant to the question of whether industrial action is protected under Division 2 of Part 3 of Chapter 3. To the extent that paragraph 1172 of the Explanatory Memorandumsuggests that the factors in s.412(3) should affect the meaning of s.443(1)(b), it is clearly inconsistent with the express words of s.412(5). We have no doubt we should give effect to the express stipulation in s.412(5).
[39] We also find no implication in the terms of s.443(1)(b) that a bargaining representative engaged in pattern bargaining is thereby not genuinely trying to reach an agreement. There is no fundamental reason why a bargaining representative engaged in pattern bargaining would not be genuinely trying to reach an agreement. Furthermore the section contains no reference to pattern bargaining and the application must be granted if the prescribed conditions are fulfilled. The opening words of paragraph 1172 of the Explanatory Memorandum, if they are relevant, leave open the possibility that a bargaining representative engaged in pattern bargaining might also be genuinely trying to reach agreement. While there might be circumstances in which the terms of the pattern agreement sought are so much in conflict with the employer’s operations that the conclusion can be reached that the bargaining representative is not genuinely trying to reach an agreement, that conclusion would be reached without reference to or reliance on the terms of s.412.”
[12] In the earlier case of Total Marine Services, the Full Bench considered a related question concerning the interrelationship between the protected action ballot provisions and the good faith bargaining requirements of the Act, and the approach to the immediate question more broadly. It concluded in part as follows:
“[30] The requirement that an applicant for a ballot order genuinely try to reach an agreement and be continuing to do so at the time an application for a ballot order is made was a requirement in the Workplace Relations Act 1996. The wording of the relevant section has been altered because of the removal of a process of establishing a bargaining period during which protected action may be taken. The concept of genuinely trying to reach an agreement was dealt with in other parts of the Workplace Relations Act 1996, specifically in relation to the grounds for terminating a bargaining period.
[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 3 It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.
[33] Arising from the submissions of the parties in the matter before him, Commissioner Thatcher considered a number of questions relevant to s 443(1)(b). He considered whether the MUA tried to get as far as it could in the negotiations but fell short of reaching a conclusion on the matter because the test involved a different question. In our view he was correct in that approach. He considered whether the MUA was bargaining in good faith as a relevant consideration to whether the MUA was genuinely trying to reach an agreement and again correctly in our view fell short of equating the concepts.”
[13] It is clear that the CFMEU, as the applicant bargaining representative, bears the onus to demonstrate that it has been and is genuinely trying to reach an agreement with Mitolo. This is evident from the Act and is reinforced by the directive in s.443(2) that I must not make the ballot order unless I am so satisfied. In addition, whilst the concept of pattern bargaining is not a relevant consideration in its own right as part of this assessment, the conduct of an applicant union in that context could in some circumstances be such as to cast doubt upon whether it was in fact genuinely trying to reach an agreement with the relevant employer.
[14] I have carefully considered the evidence of Mr Cartledge and I find that it supports the notion that the CFMEU has complied with the requirements of s.443(1)(b) of the Act in this case. In reaching that conclusion I have considered the fact that some of the many meetings held in relation to the proposed agreement over the last six months have been conducted between the union and a number of employers, and Mitolo has not been represented at two of those meetings. Further, the union and its members are seeking a particular wage as an agreed outcome in this sector and oppose changes in the inclement weather arrangements presently applying in most of the industry.
[15] In some circumstances, these factors might militate against a finding that it is genuinely seeking an agreement with the employer. However, the evidence supports the notion that the CFMEU has also had independent discussions with Mitolo prior to bringing this application, has recognised that it and the other employers already have different conditions in their existing agreements and will continue to do so, 4 and has outlined and modified its claims for an agreement to such a point that agreement is possible at this point with the employer, save for certain key issues. Further, in assessing its response to the various proposals of the employer, the union has met with and followed the views of those employees who would be subject to the proposed agreement with this employer.
[16] The evidence led by the CFMEU has also confirmed that it remains ready to meet further with Mitolo in an endeavour to reach an agreement. The taking of protected industrial action, if supported by a ballot, is however contemplated by the Act as a means of further pursuing that objective.
[17] As alluded to above, the evidence before Fair Work Australia is that particular proposals have been advanced by Mitolo and put to the relevant employees by the union in forming the CFMEU position. In that regard, I have considered the fact that one element of the latest proposal advanced by the employer involved a different configuration of the inclement weather provision. This aspect has not been formally put to the employees at Mitolo prior to bringing this application. 5
[18] The issue of inclement weather is cited by the union as one of the critical issues preventing the making of an agreement with Mitolo. In that context, I have considered whether its approach is inconsistent with the proposition that the union is genuinely trying to reach an agreement with this employer. The evidence does however indicate that the issue of inclement weather has been discussed at length with the members, who have rejected any notion of changing the fundamental aspects of the existing provision. Further, the most recent configuration proposed by the employer has been discussed with the union’s representatives on the various Mitolo sites, who have in effect confirmed the membership’s rejection of any change (other than to reduce the temperature threshold) in the existing provision. 6 In these circumstances, the approach adopted by the union is not inconsistent with its desire to pursue an agreement at this enterprise.
[19] The pursuit of a common wage outcome as an objective in negotiations is also not of itself antagonistic to the notion of genuinely trying to reach an agreement. In any event, the evidence before me is more consistent with the union establishing a negotiating benchmark and using comparative material to support its claims. I add that in my long experience in enterprise bargaining negotiations, the consideration of comparative outcomes across a sector is a common feature of such negotiations by all parties.
Conclusions
[20] Having had regard to the evidence before Fair Work Australia and considered the submissions made in this matter, I was satisfied that the CFMEU has been and is genuinely trying to reach an agreement with Mitolo. Accordingly, the requirements of s.443(1)(b) had been met.
[21] Given my satisfaction that all other statutory prerequisites had been met in relation to this application I have issued an order for the conduct of a protected action ballot in this matter.
COMMISSIONER
Appearances:
D Roberts of the Construction, Forestry, Mining and Energy Union
T Earls of the Master Builders Association of SA Inc with P Croucher of the employer
Hearing details:
2010
Adelaide
June 7
1 [2009] FWAFB 368, 9 October 2009 per Watson VP, Hamberger SDP and Roberts C.
2 [2010] FWAFB 526, 28 January 2010 per Giudice J, Watson SDP and Blair C.
3 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Print T1982; Re Media, Entertainment and Arts Alliance PR928033.
4 Evidence of Mr Cartledge - transcript PN83.
5 Evidence of Mr Cartledge - transcript PN93.
6 Evidence of Mr Cartledge - transcript PN93.
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