Construction, Forestry, Mining and Energy Union v Monadelphous Engineering Pty Ltd
[2012] FWA 3819
•4 MAY 2012
[2012] FWA 3819 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
Monadelphous Engineering Pty Ltd
(B2012/697)
COMMISSIONER BOOTH | BRISBANE, 4 MAY 2012 |
Proposed protected action ballot by employees of Monadelphous Engineering Pty Ltd.
[1] This decision concerns an application by the Construction Forestry Mining and Energy Union (the Applicant) for a protected action ballot order under section 437 of the Fair Work Act 2009 (the Act) for the employees of Monadelphous Engineering Pty Ltd (the Respondent) who are presently covered by the Monadelphous Engineering Proprietary Limited Central Queensland Operations Agreement 2009-2012 (the Agreement). The Employer objects to the making of the order.
Legislation
[2] Chapter 3, Division 8 of the Act establishes the process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action. The object of the Division is to establish a fair, simple and democratic process to determine the wishes of the employees.
[3] The requirements of the Act that the Applicant must meet are set out in ss.443 and 437.
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.
.....
(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.
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.
.....
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.
......
(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.
Background and the nature of the application before the Tribunal.
[4] This Application was made following an earlier application by the Applicant in Construction, Forestry, Mining and Energy Union v Monadelphous Engineering Associates Pty Ltd 1(the first ballot application). The relevant issues in dispute from the first application were whether the Applicant could demonstrate that it was genuinely trying to reach agreement with the employer. In an earlier application, I concluded “this application is premature in terms of the Act’s requirements. It is of course open to the CFMEU to file a further application in future if the circumstances are appropriate.”
[5] A further issue was raised and dealt with in this earlier matter. It was whether the Applicant is entitled to represent the industrial interests of the employees referred to in its application. I noted as follows:
“Considerable time was spent on this matter and some clarity around the issue was provided in submissions and at the hearing. In particular, the employer acknowledged, and the AWU conceded, that the CFMEU is entitled to represent its member who works as a crane driver.”
[6] The Applicant submits this is a finding that it is a bargaining representative in relation to the proposed agreement and in compliance with the requirements of s.437. Since the finding in the first ballot application where it was decided that the Applicant had taken steps that were ‘preparatory to bargaining’, but could not establish that it was genuinely trying to reach agreement, it can now establish that it is genuinely trying to reach agreement with the employer. It has therefore established the requirements in Division 8 and that the protected action ballot order should issue.
[7] The Respondent opposes the order on the basis that the Applicant continues to agitate in support of persons for whom it is ineligible to represent for the purposes of s.176(3) of the Act. By corollary, the Fair Work Australia (the Tribunal) cannot be satisfied the Applicant is genuinely trying to reach agreement as required under section 443(1)(b) of the Act.
[8] At the outset, I wish to thank the parties for the assistance they provided the Tribunal. The Applicant sought a protected action ballot order in an open form, specifying the employees that are to be balloted by reference to the Applicant being their bargaining representative.
[9] The Respondent raised a jurisdictional objection, arguing I could not make the order sought because the Application was uncertain as to the employees to be balloted and for other reasons.
[10] This point, raised also under the first ballot application that I dismissed for other reasons, requires careful consideration. I was mindful that the Respondent’s objection was an important one that raised issues larger than the precise point put by the Application. Accordingly, I asked the parties to make further submissions on this jurisdictional question. I am grateful to the parties for the thorough assistance they provided by way of written submissions, case material and argument before me.
[11] I am persuaded by this additional material that the question is one that ultimately turns on the proper construction of the statute.
The requirements for making a protected action ballot order
[12] Under s.443, FWA must make a protected action ballot order if the requirements are met. These are:
● an application has been made under s.437; and
● 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.
Has an application been made under section 437?
[13] The scheme of the Act allows for bargaining representatives to apply for a protected action ballot order. For the purposes of the Act, s.176 describes when an employee organisation, such as the Applicant, will be a bargaining representative.
176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement …..
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; …..
Requirement relating to employee organisations
(3) Despite subsections (1) and (2), an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.
[14] The practical effect of this provision is it establishes that employee organisations will be bargaining representatives for a proposed enterprise agreement when an employee who is covered by the agreement is a member of that organisation. It is not disputed that the Applicant has at least one member, and may have more members who satisfy this requirement.
[15] However, s.176(3) then has a limiting effect on subsection (1) in that the employee organisation can not be a bargaining representative for an employee unless it is entitled to represent the industrial interests of those employees in relation to work performed under the agreement.
[16] The Applicant submits that it is a bargaining representative in relation to the proposed enterprise agreement. In support it refers to both the employer and the Australian Workers Union's concession in the previous hearing.
[17] It asserts an issue estoppel and further that the employer has met with the bargaining representative on that basis for the purposes of bargaining.
[18] Mr Ben Loakes, an Organiser with the Applicant in the Gladstone area, deposes in his affidavit to a conversation with the Respondent’s Mr Bubb:
“First matter raised by Mr Bubb was the question of which type of employees were covered by the CFMEU. He said words to the following effect:
“At the moment you've only got one.”
I said words to the following effect:
“We've got plenty.”
I also said words to the following effect:
”We only need one to bargain, but it's not the case that there is only one.”
[19] Under cross -examination, Mr Loakes responded as follows:
“Can you tell us what classes of employees of members you have?---No, I don't actually - I know offhand, mate, we have the crane drivers, leggers and dogmen, and scaffolders.
You're seeking to agitate claims on behalf of those members?---Yes. They will affect everyone, like I said, not only our members. It will go right through to boilermakers, fitters, anyone reporting on site.
Sure, but you are seeking to agitate claims on their behalf?---Well, that's my job. I imagine that would be my role, mate, so yes.” 2
[20] The Respondent asserts that s.176(3) of the Act makes clear that an employee organisation is not eligible to be a bargaining representative unless the employee is eligible to be a member of the organisation.
[21] It asserts it is undisputed that the Applicant has continued since the first application to press the coverage in relation to an unknown number of scaffolders, riggers and dogmen.
[22] In a witness statement, Mr Adrian Bubb, Area Manager Central Queensland operations of the Respondent, outlined details of a conversation with Mr Loakes about the Applicant’s coverage.
“At this meeting we spoke about the fact that the company didn't believe that the CFMEU had coverage and was considering its position. I asked Mr Loakes whom we wish to represent a told me he has about 30+ members. I told him I was only aware of one, however he also told me that they wanted to represent riggers, doggers, crane drivers and carpenters. He then asked if we had any carpenters. I told him that we had a few.
[23] The Applicant says it satisfies the requirements of s.176(1) because those requirements have been established in the earlier hearing. It presses it is a bargaining representative under both s.176(1)(b) and (c).
[24] Section 176 defines a bargaining representative of an employee explicitly in the singular: “an employee who will be covered”; “the employee is a member”.
[25] The Applicant satisfies this requirement in that it represents at least one employee who it is entitled to represent.
[26] But can it then be said that the Applicant has, as it claims, therefore satisfied the requirement for s.437(1)?
[27] The Respondent, in opposition to the proposed order argued as follows:
“The Respondent opposes the order on the basis that:
a. the CFMEU continues to agitiate in support of persons for whom it is ineligible to represent for the purpose of s.176(3) of the Act
b. By corollary the tribunal cannot be satisfied that CFMEU is genuinely seeking to reach agreement for the purposes of s.443(1)(b).
[28] The Respondent also argues on the basis of eligibility under the rules, citing, among other cases, the High Court’s well known decision in re Coldham. 3 That makes clear that a crane driver is entitled under the eligibility rule to be a member of the Applicant, and therefore is covered. The Respondent argues as follows:
“What the CFMEU would like to have you believe is that once they get in on one employee they can seek to agitate on behalf of the world. That defies the structure and scheme of the Act. I mean, why have bargaining representatives at all and/or put in a provision like 176 subsection (3) if the intention was that the CFMEU could act on behalf of anybody.” 4
[29] However, s.176(3) only requires representation of the interests of a singular employee. That requirement is met in this Application. Disagreement as to the breadth of the coverage, including whether the Applicant is eligible to represent employees such as scaffolders, riggers and dogmen, and the fact that the union might agitate for other employees is not a matter for its status as a bargaining representative in s.437(1).
[30] The Applicant is a bargaining representative of an employee who will be covered by the proposed agreement. However, there are other requirements in s.437 that must be met.
Other matters to be specified in application.
[31] In this matter, the Tribunal must also consider s.437(3), (5) and (6). 5
Section 437(3) provides that the application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the questions or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
Subsection (5) provides:
(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.
[32] The Applicant proposes that its application satisfies the requirements of s.437(3). I have already found in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Monadelphous Engineering Pty Ltd 6 and The Australian Workers’ Union v Monadelphous Engineering Pty Ltd7 that these applications satisfy s.437(3)(b) and as the words of the questions is the same, I also find that the application has similarly satisfied s.437(3)(b).
[33] As to the requirement in s.437(3)(a) to specify the group or groups of employees who are to be balloted, the draft order, which accompanied the application is in the following terms:
In accordance with s.437(5) of the Act, the employees to be balloted are the employees of the Employer presently covered by the Monadelphous Engineering Pty Ltd Central Queensland Operations Agreement 2009-2012 for whom the Construction Forestry Mining and Energy Union is a bargaining representative.
[34] In its submissions, Mr Green for the Applicant contends:
“For the convenience of other bargaining representatives and the balloting agent, CFMEU's application in draft orders are in the same terms as those in B2012/611 and 617, with the only exceptions being:
a. The description of the employees to be balloted, which is in accordance with s.437(5)(b) is restricted to those for whom the CFMEU is a bargaining representative.”
[35] At the hearing of this Applicant, Mr Gianatti for the Respondent in response to a question about the effect of s.437(5):
“THE COMMISSIONER: ... before you leave 437(5), .... What work does the words "is taken to include" - I mean, what work do you say those words of the Act bring to this matter?
MR GIANATTI: I think it's taken to include them because within the scheme of the Act under 409 they're the only ones that can be balloted. If you ballot people beyond those who are representative - what this provision is saying is it's taken to include them because they're the only ones who can be balloted. (emphasis added)
MR GIANATTI: It doesn't, as the CFMEU suggests, you know, deprive you of power of looking at it, or anything like that. I mean, that's the one thing you need to be certain of, Commissioner.” 8
[36] Under s.437(5), an application is taken to include only employees who will be covered by the proposed enterprise agreement and are represented by a bargaining representative who is an applicant for the protected action ballot order.
[37] Although the drafting is somewhat opaque, s.437(5) is a deeming provision, and takes effect without the need for FWA to order, or a party to apply, in those terms. Its effect is to ensure that the application is ‘taken’ to include ‘only’ those employees for whom the Applicant has coverage.
[38] Its practical effect is that for the purposes of deciding if an application has been made under s.437 (thereby satisfying the first limb of s.443(1)) the application, by statutory intendment, includes only those employees covered by the agreement and represented by a bargaining representative who made the application. The application could include a smaller group (specified by membership, for example), but nothing requires the application to be so qualified.
[39] So long as ss.437(1)-(4) are satisfied, s.437(5) defines the extent of the group of employees to be balloted as those described above. There is no requirement that in order to satisfy s.437(3) that disputes about representation must be decided before I make my order. That is the work that s.437(5) does. It limits the group of employees in paragraph (3)(a) to those employees covered by the agreement and represented by a bargaining representative who is the Applicant for the protected action ballot order.
[40] This construction of the Division is supported further in the Explanatory Memorandum that notes that the Division is not intended to delay or frustrate the taking of protected industrial action by employees. Possible disputes about coverage would be an example of matters that could delay or frustrate the taking of protected industrial action by employees.
[41] Therefore, the proposed wording of the draft order satisfies the requirements of s.437(3)(a). I note that it does not matter whether or not the order begins with the words “In accordance with s.437(5)”. That section will have the effect described above in any case.
[42] There being no dispute about the other requirements of s.437. I conclude that the application has been made under s.437 and therefore the Applicant has satisfied s.443(1)(a).
[43] Having concluded that the Applicant has satisfied s.443(1)(a) and therefore an application has been made under s.437, the next question for the Tribunal is whether it is satisfied that the Applicant has been and is genuinely trying to reach an agreement with the employer or employers. If so, then the Tribunal must make the protected action ballot order.
Has the Applicant been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted?
[44] The Respondent argues that the Tribunal cannot be satisfied that the Applicant is genuinely trying to reach agreement for the purposes of s.443(1)(b) of the Act.
[45] The Respondent states that even if the Applicant is held to be legitimately seeking an enterprise agreement in respect of employees it is eligible to represent, the fact that it is seeking to represent or agitate on behalf of other employees (who it is not eligible to represent or may not be eligible to represent) demonstrates that it is not genuinely trying to reach agreement.
[46] The Respondent made the following submissions in support of its contention that the Applicant cannot satisfy the Tribunal that it is genuinely trying to reach agreement with the employer:
● Mr Gianatti referred to the scheme of the Act, and to the nature of protected industrial action referred to in s.409 - as to what is protected industrial action and to employee claim action; the necessity for a ballot and that it must not advance or be in support of unlawful terms;
● in Technip Oceania Pty Ltd v Tracey 9(Technip)an employee organisation that was not eligible to represent any of the employees for whom it was agitating an enterprise agreement could not be held to be genuinely seeking to reach an agreement. The Respondent submits that the Applicant was seeking to do just that;
● in seeking to represent what the Respondent says are ineligible members the claim is analogous to the Applicant is seeking to make a claim about a non-permitted matter and on the authority of Australian Postal Corporation v CEPU 10(Australia Post)the application should not be allowed.
[47] In response the Applicant submits:
● the Applicant's bargaining claims are for the benefit of all on-site employees, including crane drivers, scaffolders, riggers and dogmen. It would have conducted, and would still be conducting, itself in bargaining in exactly the same way if it represented only one crane driver;
● it is not necessary to determine the question of the Applicant’s coverage in order to be satisfied the Applicant is genuinely trying to reach an agreement;
● the Respondent has not made any allegation as to any way in which the Applicant is, in fact, not genuinely trying to reach an agreement because of the extent of coverage that it asserts.
● the Applicant relies on the factual matters subsequent to the decision in CFMEU v Monadelphous Engineering Pty Ltd 11 in that it attended further meetings, clearly articulated its claims, conceded to the employer’s counterclaims, made concessions and is continuing on that process. It submits that the employer has not opposed the application on this basis.
[48] The Applicant admits that it bargains for employees beyond those for which the Respondent says it eligible to represent. These include, inter alia, scaffolders, riggers and dogmen.
[49] The Applicant argues that Technip can be distinguished. In that case, the Applicant was not a bargaining representative for any employee covered by the agreement. In this case, the applicant has at least one member that it represents, and it is a bargaining representative. I agree that the factual circumstance here distinguishes Technip.
[50] In Australia Post, a Full Bench held that the union was not genuinely trying to reach agreement but “pursuing as a substantive term of the proposed enterprise agreement a claim in respect of contractors which is not about a permitted matter”. 12 The Respondent sought to draw an analogy here, arguing the dispute over whether there was coverage of some employees sought to be covered by the Applicant is analogous to inclusion of non-permitted matters. The Act prohibits non-permitted matters, but it does not prohibit the circumstance that the Respondent submits makes it analogous to non-permitted matters. Rather, the Act deals with that circumstance by limiting coverage to those for whom the applicant is a bargaining representative by force of s437(5).
[51] Having concluded that Technip and Australia Post do not establish that the Applicant is not genuinely trying to reach an agreement, the Applicant must still establish that it was genuinely trying to reach an agreement.
[52] These requirements have been recently considered in JJ Richards 13by the Full Court of the Federal Court.
[53] In JJ Richards, Flick J noted that to meet the statutory condition of genuinely trying to reach agreement, the following precursor will satisfy s.443(1):
[60] The Transport Workers’ Union, in the present proceeding, satisfied that requirement by writing to J.J. Richards on 24 December 2010. Rightly or wrongly, J.J. Richards indicated its response in the terms it did in its letter dated 7 January 2011. That exchange of correspondence was sufficient to satisfy the precondition to the exercise of the power conferred by s 443(1).
[61] There is no other constraint expressly imposed by the Legislature which would (for example) require bargaining with an employer to have commenced.
[54] In support of its claim that it is genuinely trying to reach an agreement the Applicant submits that its bargaining representatives “attended further meetings, clearly articulated its claims, conceded to the employer’s counterclaims, made concessions and is continuing on that process.”
[55] The Respondent does not dispute these steps have been taken by the Applicant. There is nothing before the Tribunal that points that these steps cannot be genuinely trying to reach an agreement, on the authority of JJ Richards they have complied with the requirements of that authority and I therefore conclude that the Applicant is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[56] The Applicant has satisfied requirements of section 443(1)(b) and having already concluded that it satisfied s443(1)(a), the Tribunal must make a protected action ballot order in relation to a proposed agreement.
Directions to Australian Electoral Commission
[57] In the event the application was to be granted the Respondent seeks certain directions to the Australian Electoral Commission pursuant to s.449(2).
[58] The Respondent seeks to see a list of employees to be balloted, and in the event that the Respondent’s list and the Applicant’s list disclose disagreement as to the employees to be balloted, liberty to apply.
[59] It also sought, in the event that any order issue, the opportunity to make further submissions on the nature of that order, although it provided no reasons as to why this should occur.
[60] The Applicant resists any directions to the AEC and submits that it is not clear that FWA has the power to issue any directions to the AEC.
[61] In deciding whether to make these directions as requested, the following matters need to be decided:
1. Does Fair Work Australia have power to issue directions?
2. If so, then should directions be issued in this matter?
[62] Section 449 in Subdivision C of Division 8 of the Act provides for how a ballot agent must conduct the protected action ballot.
Subdivision C—Conduct of protected action ballot
449 Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent
(1) A protected action ballot must be conducted by:
(a) if a person is specified in the protected action ballot order as the protected action ballot agent for the ballot—that person; or
(b) otherwise—the Australian Electoral Commission.
(2) The protected action ballot agent must conduct the protected action ballot in accordance with the following:
(a) the protected action ballot order;
(b) the timetable for the ballot;
(c) this Subdivision;
(d) any directions given by FWA;
(e) any procedures prescribed by the regulations.
[63] Sections 452 and 453 provide comprehensive and detailed directions on compiling the roll and who is eligible to be on the roll of voters.
452 Compilation of roll of voters
(1) This section applies if:
(a) the protected action ballot agent is the Australian Electoral Commission; or
(b) FWA has directed the protected action ballot agent to comply with this section.
Note: If this section does not apply, the protected action ballot agent must comply with directions given by FWA in relation to the matters dealt with by this section (see section 450).
(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must compile the roll of voters for the protected action ballot.
(3) For the purpose of compiling the roll of voters, the protected action ballot agent may direct, in writing, the employer of the employees who are to be balloted, or the applicant for the order (or both), to give to the ballot agent:
(a) the names of the employees included in the group or groups of employees specified in the protected action ballot order; and
(b) any other information that it is reasonable for the protected action ballot agent to require to assist in compiling the roll of voters.
453 Who is eligible to be included on the roll of voters
An employee is eligible to be included on the roll of voters for the protected action ballot only if:
(a) the employee will be covered by the proposed enterprise agreement to which the ballot relates; and
(b) on the day the protected action ballot order was made, the employee:
(i) was represented by a bargaining representative who was an applicant for the order; and
(ii) was included in a group of employees specified in the order.
[64] Other sections deal with a timetable for a protected action ballot (s.451); variations to the roll of voters (s.454); dealing with the ballot papers (s.455); who may vote in the ballot (s.456); reporting the result of the ballot (s.457); requirements for a ballot agent to report on the conduct of the ballot (s.458).
[65] Subdivision C’s operation is described in the Explanatory Memorandum to the Fair Work Bill:
Subdivision C sets out the requirements for protected action ballots conducted by the AEC, but allows FWA to determine whether it is appropriate for the same requirements to apply to non-AEC ballot agents.
In a number of places, the Bill makes a distinction between the powers of the AEC to conduct protected action ballots as opposed to the powers of non-AEC ballot agents. For example, the AEC is able to direct employers and bargaining representatives to provide it with the information necessary to compile the roll of voters (sub-clause 452(3)) and the AEC is able to amend the roll of voters on its own initiative (sub-clauses 454(5)). In contrast, a non-AEC ballot agent may only exercise such powers if it has been directed to do so by FWA.
This reflects the fact that the AEC is a Commonwealth body which is accountable to the Parliament for its activities and is subject to the legal frameworks that apply to Commonwealth agencies. Also, the AEC has the systems and procedures in place to enable it to effectively conduct protected action ballots with limited supervision by FWA. 14
[66] The question of whether Fair Work Australia has power to make directions where the AEC is the ballot agent has been considered at length in and commented on by Bissett C in United Voice v Wilson Security Pty Ltd 15. The Commissioner identified and described the role of s.449 at paragraph 37-38:
“Section 449 of the Act does no more than direct that a ballot agent, whether the Australian Electoral Commission (AEC) or otherwise, must carry out a ballot in accordance with any of those matters specified in s.449(2). Section 449(2) is not the source of any power for FWA to give direction with respect to those things mentioned but rather requires that, if FWA has issued an order, timetable, directions etc that the ballot is conducted in accordance with those.
Section 450 applies where the agent conducting the ballot is not the AEC. In such circumstances Fair Work Australia must provide specific written directions to the agent with respect to the conduct of the ballot. The matters these directions must cover are set out in s.450(2). The power therefore to issue directions as contemplated in s.449(2)(d) is given to Fair Work Australia with respect to a non-AEC ballot agent by s.450(2). This is consistent with the requirement that the ballot be conducted in accordance with the Subdivision.”
[67] I agree, the power to issue directions only applies when the ballot is not being conducted by the AEC.
[68] This is unsurprising. The Act is predicated on an assumption that the AEC as an public institution can and will undertake its role competently. That role includes compiling the roll, by determining the individuals who are entitled to be balloted, and varying the roll by adding or removing names from it. How it does that is a matter for the AEC, under its legislation and consistent with the Fair Work Act 2009. Subdivision C provides a comprehensive framework for the conduct of the ballot where it is to be conducted by the AEC.
[69] On that basis I decline to issue directions under s.449(2)(d) of the Act.
[70] As the Applicant has satisfied the requirements for a protected action ballot order I do not think it is necessary to seek further submissions from the Respondent as to the nature of the order.
[71] The order will issue substantively in the terms sought, except that the protected action ballot will close 20 working days after the making of the order.
COMMISSIONER
Appearances:
Mr B Green for Construction, Forestry, Mining and Energy Union
Mr Gianatti on behalf of Mondadelphous Engineering Pty Ltd
Hearing details:
2012.
Brisbane:
27 April.
1 [2012] FWA 2808. This decision is subject to appeal in C2012/3527.
2 Transcript of proceedings, dated 27 April 2012 at PN 91
3 re Coldham; Ex parte Aust Building Construction Employees' Union [1986] HCA 87; (1985) 159 CLR 522; (1985) 64 ALR 215; (1985) 60 ALJR 245
4 Transcript of proceedings, dated 27 April 2012 at PN 308
5 The parties did not dispute that s.437(b) was satisfied.
6 B2011/611
7 B2011/617
8 Transcript of proceedings, dated 27 April 2012 at PN 237
9 [2011] FWAFB 6551
10 [2009] FWAFB 599
11 [2012] FWA 2808
12 [2009] FWAFB 599 at PN 60
13 [2012] FCAFC 53
14 Explanatory Memorandum to the Fair Work Bill at paragraphs 1788-90
15 [2011] FWA 5828 at PNs 37-38
Printed by authority of the Commonwealth Government Printer
<Price code C, PR523371>
0
3
0