Construction, Forestry, Mining and Energy Union v Sherrin Hire Pty Ltd T/A Boom Sherrin

[2010] FWA 2317

[2010] FWA 2317

FAIR WORK AUSTRALIA

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Sherrin Hire Pty Ltd T/A Boom Sherrin
(B2010/2758)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 19 MARCH 2010

Proposed protected action ballot by employees of Sherrin Hire Pty Ltd t/as Boom Sherrin.

[1] The following decision, now edited, was given by Fair Work Australia in transcript on 15 March 2010.

[2] This is an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for a protected action ballot order pursuant to s.437 of the Fair Work Act2009 (the Act). The application was made on 11 March 2010 and it is not disputed that it was properly served upon Sherrin Hire Pty Ltd T/as Boom Sherrin (the Company) at that time. The application is opposed by the Company on the basis that the requirements of s.443(1)(b) of the Act have not been met. That is, that Fair Work Australia could not be satisfied that the CFMEU in this case has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. That proposition is advanced by the Company on the basis that there have been, since the operation of the Act, no face-to-face meetings between the CFMEU and the Company in relation to making the agreement.

[3] The evidence of Mr B.J. Pitt, CFMEU Organiser, and documentary evidence, establishes that a log of claims was provided by the CFMEU to the Company in late 2009; either November or early December. Since that time the CFMEU has sought a response to the log of claims in the context of advancing the agreement process with the Company. Mr Pitt’s evidence is also that in January 2010 he contacted a representative of the Company in Brisbane on a number of occasions seeking to ascertain whether some Company response to the log was available, and further that he had spoken on site to a local representative of the Company, Mr McLean in February 2010.

[4] The two letters from the Company, Exhibit CFMEU1 and CFMEU2, indicate an intention to respond by certain dates, which in neither case has been met. As was noted by Commissioner Cloghan, and is relied upon by the Company, whether a party is genuinely trying to reach agreement:

“involves a finding of fact applied by reference to the circumstances of the particular negotiation. [[2009] FWAFB 368 para 31]” 1

[5] In the current circumstances, the factual situation is that the CFMEU has provided a log of claims and followed up with the Company seeking a response, and has done so on numerous occasions, both with the Head Office in Queensland and locally, without any response whatsoever by the Company.

[6] The application is opposed by the Company on the basis that there have not been to date any face-to-face meetings in the context of the Act and that that should found a finding that the CFMEU has not been and is not genuinely trying to reach an agreement. I am not persuaded by that position in the circumstances of this matter. The pursuit by the CFMEU of an agreement has been going on for some considerable time and has been reactivated through the log of claims late last year, with no substantive response whatever from the Company - in the first instance a response to the agreement proposed by the CFMEU, which would seem to me to be a precursor to some meaningful meeting. In those circumstances and in circumstances where the Company have previously advised it is not inclined to continue discussions with the CFMEU, but prepared to deal with logs, I am not persuaded that the absence of a meeting at this point should prevent me from being satisfied that the CFMEU is genuinely trying to reach an agreement with the employer of the employees to be balloted.

[7] Accordingly, I am satisfied as to the statutory matters in s.443(1)(a) and (b), and will issue an order [PR995301] in the terms sought by the CFMEU.

[8] It may be noted that there will be a period of at least 20 days before a ballot can be progressed, and the Company is in a position to seek meetings to progress negotiations prior to any ballot occurring and in the context of those discussions can raise with the CFMEU issues of a possible stay of any industrial action, if authorised, whilst those negotiations continue. I think in the circumstances where the CFMEU has been pressing agreement by a log of claims and pressing some response from the Company, the failure of the Company to respond over a period of several months does not constitute a basis to prevent a finding in favour of the applicant in respect of s.443(1)(b) of the Act, and to frustrate access to rights to a secret ballot order under the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

R. Wainwright for the Construction, Forestry, Mining and Energy Union.

W. Swain for Sherrin Hire Pty Ltd t/as Boom Sherrin.

Hearing details:

2010.

Melbourne:

March 15

 1   [2010] FWA 1247.

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