Construction, Forestry, Mining and Energy Union v P & D Rigging & Crane Hire Pty Ltd

[2016] FWC 9172

[2016] FWC 9172

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
P & D Rigging & Crane Hire Pty Ltd
(B2016/1272)

COMMISSIONER RYAN MELBOURNE, 30 DECEMBER 2016

Proposed protected action ballot of employees of P & D Rigging & Crane Hire Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by Construction, Forestry, Mining and Energy Union (CFMEU) for a protected action ballot order (PABO) in relation to employees of P & D Rigging & Crane Hire Pty Ltd (the Respondent). The application was made on December 2016.

[2] The employees to be balloted are the employees of the Respondent currently covered by the P & D Rigging & Crane Hire Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015 who are members of the CFMEU and who have not appointed another person or entity as their bargaining representative.

[3] The Respondent opposed the application and a hearing was conducted on
19 December 2016 at which the CFMEU was represented by Mr P. Boncardo and Ms A. Mansini of Australian Mines and Metals Association (AMMA) represented the Respondent. The hearing heard evidence from Ms Maloney of the CFMEU and from Mr Bradford of the AMMA. After the examination of the witnesses the CFMEU made oral closing submissions. The Commission specifically permitted the Respondent to make written closing submissions and for the CFMEU to make written reply submissions. Directions were issued to the parties to this effect.

[4] On 22 December 2016 the CFMEU filed and served a signed statement from
Mr R. Young, the CFMEU shop steward employed by the Respondent. The CFMEU sought to have the Commission take this statement into account and noted that as the Respondent had until 29 December 2016 to file its written closing submissions that the Respondent could address Mr Young’s statement in its closing submissions. The Respondent filed its closing submissions on the morning of 29 December 2016 and the CFMEU filed its reply submissions in the afternoon of 29 December 2016. The Respondent’s closing submissions did not address the statement of Mr Young. In all of the circumstances of this matter the Commission is not prepared to admit the witness statement of Mr Young. The CFMEU had every opportunity to present the case it wanted to at the hearing on 19 December 2016 and Mr Young’s statement was not part of that case.

[5] The relevant legislative provisions to be satisfied in s.443 of the Act, are as follows:

“443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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) The FWC 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC 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.”

[6] The proper approach to s.437 applications has been considered by the Commission on many occasions. Three relevant decisions are: CFMEU v Mitolo Constructions P/L, [2010] FWA 4232 Hampton C at [10] to [12]; AWU v Winchester Australia Ltd, [2016] FWC 6126, Gostencnik DP at [16] in relation to the relationship between good faith bargaining and genuinely trying to reach agreement; Esso Australia P/L v AMWU and others[2015] FWCFB 210. I apply these decisions in the present matter.

[7] It is for the applicant in a section 437 application to satisfy the Commission that it has been and is genuinely trying to reach agreement with the employer in relation to the proposed enterprise agreement.

[8] In the present matter the evidence of Mr Bradford that the CFMEU is pattern bargaining with employers in the mobile crane industry is accepted. But as his evidence makes clear the CFMEU has changed the pattern so that a number of agreements made with employers are different from the agreement being sought with the Respondent in this matter. The existence of pattern bargaining is not necessarily inconsistent with a finding that the CFMEU has been and is genuinely trying to reach agreement with the Respondent in relation to a proposed enterprise agreement.

[9] The evidence of Ms Maloney was simple, straightforward and to the point. I note that at the commencement of cross examination of Ms Maloney it was put to her, and she acknowledged that as an officer of the court she understood her obligation to give truthful evidence to the Commission. 1 The evidence of Ms Maloney establishes to the satisfaction of the Commission that the CFMEU has been and is genuinely trying to reach agreement with the Respondent in relation to a proposed enterprise agreement.

[10] In contrast the same cannot be said of the evidence of Mr Bradford. Mr Bradford’s evidence concerning the uncertainty that was attached to the use of the words ‘stoppage of work’ and ‘strike’ in the proposed protected action ballot was simply implausible, especially from a person of his experience in industrial relations. Notwithstanding that he was a witness, Mr Bradford acted in the witness box as if he were the advocate for the Respondent and his ‘evidence’ contained a lot of argument which should properly have been put as argument from the bar table.

[11] Nothing in the evidentiary case of the Respondent constitutes evidence of such weight that it counters the evidence of Ms Maloney. The evidentiary burden on the CFMEU is to satisfy the Commission on the balance of probability that it has been and is genuinely trying to reach agreement with the Respondent in relation to a proposed enterprise agreement. In the language of Briganshaw v Briganshaw the Commission “must feel an actual persuasion of its occurrence or existence before it can be found” and that "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” 2 In the present matter the Commission accepts the evidence of Ms Maloney and that evidence leads the Commission to reach the requisite level of “reasonable satisfaction” that the CFMEU has been and is genuinely trying to reach agreement with the Respondent in relation to a proposed enterprise agreement.

[12] The fact that the Respondent started the bargaining process by proposing a specific version of an enterprise agreement and the CFMEU, as bargaining representative for the employees, responded by proposing its own specific version of an enterprise agreement is unsurprising and it is also unsurprising that neither side will accept the others version of the proposed enterprise agreement.

[13] The challenge by the Respondent to the questions proposed by the CFMEU in the ballot is without substance. The notion of what constitutes a stoppage of work or a strike are simple terms readily understood by an ordinary employee. The language used by the CFMEU in the questions to be included in the ballot is clear and there can be no misunderstanding as to the meaning of the questions. As already noted, the evidence of Mr Bradford on this point is implausible.

[14] The Respondent also contends, and relies on the evidence of Mr Bradford to substantiate the contention, that there are exceptional circumstances justifying the period of written notice to be given under s.414(2) being 7 days and not the 3 days provided for in s.414(2)(a). Nothing in the evidence of Mr Bradford or in the submissions of the Respondent could satisfy the Commission that there are exceptional circumstances justifying a notice period longer than the 3 days provided for in s.414(2)(a).

[15] The Commission is satisfied as to the matters set out in s.437(1) and the Commission will issue an appropriate order in this matter. The Commission notes the requirement in s.443(3A) and in setting the 13 February 2017 as the date for the close of the ballot the Commission has taken into account two forthcoming public holidays on 2 and 26 January 2017.

COMMISSIONER

Appearances:

P. Boncardo for the Construction, Forestry, Mining and Energy Union

A. Mansini of AMMA for P & D Rigging & Crane Hire Pty Ltd

Hearing details:

2016.

Melbourne:

December 19.

Final written submissions:

Respondent by December 22.

 1   Transcript at PN82 – PN84.

 2 [1938] 60 CLR 336.

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