United Voice v Clean Domain Pty Ltd
[2011] FWA 7332
•26 OCTOBER 2011
[2011] FWA 7332 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
United Voice
v
Clean Domain Pty Ltd
(B2011/3751)
United Voice
v
Berkeley Challenge Pty Ltd
(B2011/3752)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 26 OCTOBER 2011 |
Proposed protected action ballot, applications opposed on grounds group of employees not fairly chosen, applicant not genuinely trying to reach agreement.
[1] This decision concerns two applications made by United Voice (the Union) pursuant to s.437 of the Fair Work Act 2009 (FW Act) for protected action ballot orders. The first application relates to employees of Berkeley Challenge Pty Ltd (Berkeley Challenge). The second application relates to employees of Clean Domain Pty Ltd (Clean Domain). Each of these companies is a wholly-owned subsidiary of Spotless Group Limited (Spotless).
[2] Ms McMillan appeared for the Union and Mr Shariff was granted permission to appear with Ms Ratnam for Berkeley Challenge and Clean Domain. Although Spotless is not the employer of the employees who are the subject of the applications it will become apparent from the evidence that Spotless management have acted on behalf of the two employers.
[3] The order being sought in each application was opposed. The applications were heard at the same time and the evidence and submissions applied to each application. It was accepted that the result in relation to one application would be the result in relation to the other.
[4] Sections 437 and 443 are the provisions in the FW Act which are most relevant to this decision. Section 437 is in these terms:
“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 propose 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
Fair Work Act 2009 Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
[5] The relevant provisions of s.443 are as follows:
“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.
...........”
The evidence
[6] The Union tendered a bundle of documents comprising correspondence between it and Spotless. It also tendered a document titled "General Announcement" dated 4 April 2011. Additionally, an outline of submissions was provided by the Union. Spotless tendered a bundle of documents which, with two exceptions, was identical to that relied on by the Union. The additional documents were firstly numerous pieces of correspondence dated 15 October 2010. As will appear later, there are ten letters with that date in identical terms other than the identification of the centre operator where the cleaners were engaged. The other additional document in the Spotless bundle was a letter dated 21 December 2010 from the Union to Spotless. A statement of Mr Thomas Gibbons, the National General Manager-Soft FM and Sector General Manager-Retail was tendered. Mr Gibbons was not required for cross-examination. An outline of submissions was also provided.
[7] Before turning to the evidence I should describe in a little detail the terms of the orders the Union seeks. I do this as it is the description of the group of employees to be balloted which assumes some importance to the grounds upon which the applications are opposed.
[8] In the Berkeley Challenge application the order sought is for the Union to hold a protected action ballot of employees of Berkeley Challenge as described in paragraph 3 of the order. That paragraph is titled “Group or groups of employees to be balloted” and it provides that the employees to be balloted are those employees of the employer who "would be subject to the proposed enterprise agreement and perform cleaning work at the following shopping centres.” Thereafter is a list containing four shopping centres. They are Sunshine Plaza, Kawana Shoppingworld, Stocklands-The Pines and Stocklands-Wendouree. Although not identified in the order it was agreed that the first two of these shopping centres is in Queensland the second two are in Victoria.
[9] In the case of the order which is sought in the Clean Domain application the wording of the group or groups of employees to be balloted is the same as in the Berkeley Challenge order and thereafter the following centres are named; Westfield Centrepoint, Westfield Mt Druitt, Westfield Tea Tree Plaza, Chadstone-The Fashion Capital, Westfield Doncaster, Westfield Fountain Gate, Corio Village Shopping Centre, Broadmeadows Town Centre, Werribee Plaza Shopping Centre, Hoppers Crossing Shopping Centre, Epping Plaza Regional Shopping Centre and Victoria Gardens. Although not identified in the order it was agreed that the first two are in New South Wales, the third in South Australia and all of the remaining centres are in Victoria.
[10] Numerous pieces of correspondence were relied on by both the Union and Spotless. I list that correspondence below and comment upon its content.
● 15/10/10 - Ten letters from the Union to Spotless which, with one exception, all appear to be in the same terms. The exception is that the letters identify different centres at which employees, members of the Union, are engaged as cleaners in accordance with the contract the operator of that centre has with Spotless. The centres identified in the letters are Stockland, AMP, GPT, GIC, Commonwealth Bank, Westfield's, Dexus Property Group, Mirvac Group, Lend Lease and Centro Properties Group. The letter informs Spotless of the Union’s claim to extend “Clean Start to the retail sector". It sets out five key principles that underlie the Union's position. Further particulars are given by reference to each of the key principles. For example, in relation to the principle of "A real right to job security" the letter indicates that cleaners are seeking “protection for their position, hours and entitlements at a change of contract”. Additionally, consultation, notice and the correct and timely payment of genuine redundancies is sought. Under the key principle of "Fair pay for the work cleaners do" the letter indicates that cleaners seek to be fairly compensated for their work which includes an increase in the base rate of pay for retail cleaners and a fair rate for shift, weekend and public holiday penalties, casual loadings and specific allowances. Additional claims are made in relation to the provision of suitable and adequate uniforms and gloves and for fair and safe workloads. The letter goes on to indicate it had been explained in meetings between the Union and Spotless that the Union sought to negotiate around the template of the CBD Clean Start Agreement. The letter says that all parties had discussed the value of an industry wide settlement but indicates that Spotless may have particular issues arising out of its circumstances which it may wish to discuss or negotiate for inclusion in the agreement. The Union invited Spotless to attend a meeting at a time identified in the letter.
● 27/10/10 - Correspondence from Spotless to the Union. This letter comprises the response from Spotless to all of the Union's letters of 15 October 2010. It refers to the five key principles underpinning the Union’s claim for a new agreement for the retail sector and records that it does not believe the proposed agreement would provide better outcomes for cleaners than the continuation of Spotless supporting the "Modern Award framework." I here interpose to note this is a reference to the Cleaning Services Award 2010 1 (Cleaning Services Award). A response is then given to each of the key principles. I refer to two only. In relation to the job security principle it indicates that its current practice is to actively seek to redeploy cleaners and also identifies the job security provisions in the Cleaning Services Award. In relation to the principle of fair pay it records that Spotless provides all employees with their pay and conditions in accordance with the Cleaning Services Award. The letter concludes that Spotless does not agree to enter into or commence bargaining for any new enterprise agreements to cover its employees based at the centres specified in the Union's letters. It says that to do so would only drive a further wedge between compliant and non-compliant contractors and provide more opportunities to non-compliant contracts to undercut.
● 10/12/10 - Correspondence from the Union to Spotless. This letter refers to the earlier correspondence and records that despite written and verbal requests Spotless had not agreed to participate in bargaining with the Union. The letter indicates that the claim was now to extend Clean Start into the airport sector. In particular, the claim related to cleaning at an airport owned by Brisbane Airport Corporation Holdings Limited. Thereafter the letter was in terms similar to the letters dated 15 October 2010.
● 21/12/10 - Correspondence from the Union to Spotless. This letter commences with expressing the Union’s concern that Spotless had not agreed to participate in bargaining. It indicates it had not been able to have "open and constructive dialogue" about the Union’s intentions to bargain in relation to the Clean Start principles and to discuss the scope of how it intended to negotiate. The letter then advises that the claim was made in relation to cleaners at a David Jones store which is not already covered by the CBD Clean Start Agreement. Thereafter the letter is in similar terms to the letters of 15 October 2010.
● 22/2/10 (this should have read 22/2/11) - Correspondence from the Union to Spotless. This letter records that the Union had written to Spotless on a number of occasions and that, disappointingly, Spotless had not accepted the invitation to bargain. It expresses concern about Spotless instead having sought to sign up members to "Industry Flexibility Agreements”. A further request to attend a bargaining meeting with the Union is made. The letter foreshadowed that the Union had the support of a majority of workers and would seek a majority support determination.
● 29/4/11 - Correspondence from the Union to Spotless. The letter confirms that the Union was bargaining with six of the largest contract cleaning companies in the retail sector and extended an invitation to Spotless to attend the next negotiations. It records that the agenda for bargaining would include, but not be limited to, the claim points that were set out in the Union's previous correspondence and their implementation as well as provisions addressing sham contracting in the industry.
● 10/5/11 - Correspondence from Spotless to the Union. Spotless referred to the request it had made at a meeting with the Union on 17 March to provide certain information which included details of the agreement the Union proposed to negotiate and how the commercial concerns Spotless had could be addressed. The status of negotiations with other cleaning contractors in the retail sector is also raised. It requested an update on the status of those negotiations, a copy of the proposed agreement, information as to how any increases in labour costs as a result of an agreement may be absorbed, details of productivity initiatives and the proposed timetable for the completion of negotiations with the other six contractors. After the information was received Spotless would consider the merits of entering into bargaining for a new enterprise agreement for retail centre cleaners.
● 13/5/11 - Correspondence from the Union to Spotless. The Union expressed its concern that all it had previously received was an indication from Spotless that the Cleaning Services Award was sufficient for its staff and had not responded to any of the other several pieces of correspondence. It then referred to the correspondence of 10 May 2011 and indicated that in the meeting of 17 March the Union had answered the questions raised by Spotless. It observed that it was not due to lack of information but rather an active choice that Spotless had made to not participate in a bargaining process. The Union indicated that a copy of a proposed agreement would be developed with Spotless through the negotiation process, it would not provide information about the status of its bargaining with the other six contractors, that it understood labour costs issues and this would be one of the issues that will be discussed as part of the negotiation process. Spotless was invited to attend a meeting on a date identified in the letter.
● 16/5/11 - Correspondence from Spotless to the Union. In this letter Spotless expressed its disappointment that the information it had earlier sought was not provided. It expressed particular concern that the manner in which costs are proposed to be absorbed in an enterprise agreement had not been addressed. It said contracts had been lost by Spotless to contractors who are not signatories to the CBD Clean Start Agreement. It expressed disappointment that the Union was unwilling to meet with it to address sham contracting unless it, Spotless, agreed to enter into bargaining.
● 12/8/11 - Correspondence from the Union to Spotless. This letter made a further claim in relation to employees of Spotless cleaning at a Pacific Group owned centre that is not already covered by the CBD Clean Start Agreement. Thereafter the letter identified the five key principles which would underlie the negotiations and requested that Spotless contact the Union to arrange a meeting time.
● 23/8/11 - Correspondence from Spotless to the Union. It referred to the letter of 12 August 2011. It confirmed its view that the proposed clean start retail agreement would not provide better outcomes for cleaners then the modern award framework. Thereafter the response to the key principles was in similar terms to the Spotless response of 27 October 2010. It concluded that Spotless did not agree to commence bargaining for an enterprise agreement to cover its employees based at the Pacific Group centres. It referred to the additional costs that would be incurred by entering into a retail sector enterprise agreement and the wedge that would be driven between award compliant contractors and non-compliant contractors.
[11] In addition to the above correspondence the Union also referred to "countless phone calls" informal face-to-face discussions and a meeting on 17 March 2011 as additional efforts it had undertaken to try and reach an agreement with Spotless. Spotless did not deny that such contacts had occurred. I have no other evidence as to what was said or done on these occasions.
[12] I refer to the document titled “General Announcement”. It is from the Managing Director and CEO of Spotless and dated 4 April 2011. It was circulated to its cleaning employees. It notes that over recent months Spotless had been talking with the Union about "Clean Start Retail (an employment agreement for cleaners in the Australian retail sector)". It indicates that Spotless does not believe that signing up to the union campaign is in the best interests of Spotless, its employees and the cleaning industry. It says there is a real danger it will give unethical operators more opportunities to undercut responsible organisations. It refers to “the most recent angle in the Union's campaign” being a criticism of the use of “Individual Flexibility Agreements” describing them as allowing staff to “work extra hours if they wish. For example, staff can work on Saturday as well as during the week, or cover another employee's absence (if they choose)”. It is said these agreements are designed to offer flexibility and benefits to an employee and are implemented at the employee’s request or agreement. It records that the biggest problem in the industry is the number of unethical companies who do not comply with the Cleaning Services Award. It concludes by observing that Spotless is disappointed with the Union trying to pressure it into entering into a pattern agreement which is not in the best interest of Spotless, its cleaning employees and its customers. It notes that it is committed to fair treatment, pay and conditions for all staff.
[13] I now turn to the statement of Mr Gibbons. As I have earlier noted Mr Gibbons was not required for cross examination. I summarise his evidence below.
● The Spotless Group in Australia has five main divisions, one being cleaning services. Although each state has a general manager of cleaning operations the division is not broken into subdivisions by reference to the nature of the contract that is entered into. There is, for example, no retail cleaning division. Although Mr Gibbon’s title refers to retail this is for business development purposes only.
● Spotless is a facility services provider, one of its services being contract cleaning. Such contracts may be specifically for the purposes of cleaning only or may be part of an integrated service offering which also encompasses, for example, catering and maintenance. Spotless has over 5000 employees performing contract cleaning work at numerous sites including shopping centres across Australia. In the case of Berkeley Challenge and Clean Domain they employ approximately 1327 employees. Cleaning contracts may be for the provision of services to a client in respect of multiple sites or may be for the provision of services at a single site.
● Spotless has around 149 sites across Australia where, through Berkeley Challenge or Clean Domain, cleaning services are provided at shopping centres and retail shops. The applications cover cleaners at 16 of those 149 sites. All of these employees are engaged in accordance with the provisions of the Cleaning Services Award. That is the award generally applied in the industry and by reference to which tenders are costed.
● The Berkeley Challenge application applies to 4 of some 102 shopping centres and retail sites at which it provides cleaning services throughout Australia. It relates to two of the Stockland sites but not another 32 Stockland sites for which there is a contract. The Clean Domain application applies to 12 of the 47 shopping centres and retail shops at which it provides cleaning services throughout Australia.
● A conversation between a solicitor acting for Spotless and Ms McMillan, the Union’s advocate, is referred to. I here note that it was accepted by Ms McMillan that the conversation occurred. The solicitor had observed that there were many other sites which are not covered by the applications. Ms McMillan told the solicitor "that the union had chosen the sites covered by their two applications (and the sites not covered) based on the sites where the union's members were prepared to take industrial action". 2
● Mr Gibbons is aware that since October 2010 the Union has been seeking to run an industrial campaign called "Clean Start Retail". The campaign is to get contract cleaning companies to enter into enterprise agreements. He observed that such agreements would increase wages and conditions for cleaners who work at shopping centres and retail outlets at airports. The campaign is based on an earlier campaign the Union ran in respect of cleaners engaged within central business district offices within capital cities throughout Australia.
● Spotless had not received any proposed enterprise agreement the Union was seeking it to enter into.
The grounds of opposition
[14] I turn now to the grounds of opposition to the orders being made. The first ground is that the Union does not have the requisite standing to make the applications. The second ground is that the Union is not genuinely trying to reach agreement. This ground has two aspects. The first is described as the fairly chosen ground and the second is described as the failure to provide an agreement ground. The third ground is that the FW Act does not permit applications for protected action ballot orders where bargaining had not been initiated and/or commenced.
Ground 1
[15] Spotless submitted that the Union had not adduced any evidence to establish that it had standing to bring the applications. It submitted that the Union needs to provide proof it is a bargaining representative as that term is defined in s.176 of the FW Act. It submits there is no evidence that any employees who are to be covered by the proposed enterprise agreement are members of the Union.
[16] In accordance with arrangements made during the course of the hearing (including undertakings given by Spotless in relation to confidentiality of the identity of any employee) the Union provided evidence that it has at least one relevant member. I am satisfied that it has standing to make the applications.
[17] Next, Spotless submitted that even if the Union could present evidence that it had a member it could not be appointed as a bargaining representative until bargaining had commenced. It said that as bargaining had not commenced in relation to employees covered by either application the Union could not be a bargaining representative.
[18] I do not accept the construction of the relevant provisions of the FW Act as contended for by Spotless. It is a construction which, in my opinion, is inconsistent with s.176(1)(b) of the FW Act. Although the factual situation was somewhat different it is also at odds with the Full Bench decision in MSS Security Pty Ltd and Liquor, Hospitality and Miscellaneous Union 3 (MSS). That decision establishes that a union may be a bargaining representative despite the fact an employer had refused to bargain. Further, and if there be any doubt that the MSS decision might have resolved this issue, the Full Bench decision in JJ Richards and Sons Pty Ltd and the Transport Workers’ Unions of Australia4 (JJ Richards) is against the construction of the FW Act for which Spotless contends. The Full Bench in that matter decided that a union was entitled to apply for a protected action ballot order despite the fact that bargaining had not commenced. And, in so applying, that union may be a bargaining representative as referred to in s.437 of the FW Act.
Ground 2 - genuinely trying to reach an agreement - the fairly chosen ground
[19] Spotless submitted that the FW Act imposes specific conditions about the content and approval of enterprise agreements. It identified, for example, that such agreements may only be about "permitted matters". It referred to s.186 of the FW Act which obliges Fair Work Australia (FWA) to give consideration to a number of requirements when considering the approval of an agreement, in particular the requirements of ss.186 (3) and (3A). Those sections are in these terms:
“(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”
[20] Spotless submits that the group of employees who are to be balloted are engaged at disparate sites, in different states under contracts held with different shopping centre operators and represent only a portion of the workforce of Berkeley Challenge and Clean Domain. Accordingly, it submits that FWA could not be satisfied that the group of employees chosen to be covered by the proposed agreement had been fairly chosen. Nor, it submitted, was there any basis to form the view that they are geographically, operationally or organisationally distinct.
[21] In support of this ground it relies on the evidence of Mr Gibbons that the applications cover approximately 639 of the 1,327 cleaning employees engaged by Berkeley Challenge and Clean Domain. It submits that the choice of the group of employees to be balloted does not comply with the FW Act and has no logical basis. It says an inference may be drawn that the Union has sought to bypass the fair and democratic processes under the FW Act by targeting only a select group of employees to secure its own purposes. It should not be able to "cherry pick" the group of employees so as to ensure that industrial action will be approved. In this respect weight is placed on the comment attributed to Ms McMillan and referred to in Mr Gibbon’s statement.
[22] I do not accept this ground of objection to the protected action ballot orders being made. The necessity for consideration as to whether the group of employees to be balloted has been fairly chosen does not arise now. It will arise in the event an agreement is made and filed for approval. It is not, in my opinion, a consideration that is necessitated by any of the provisions of the FW Act concerning applications for protected action ballot orders.
[23] If the requirements of ss.437 and 443 are met I must issue a protected action ballot order. I see no basis on which I should additionally read into the requirements the necessity for me to decide whether the group identified in the orders sought could be said to be fairly chosen. It was not submitted that the group of employees which are to be balloted was not a subgroup of employees in respect of whom the Union had been seeking to enter into negotiations with Spotless. In that respect, I accept that the Union had been genuinely trying to reach an agreement for them (albeit it had been trying to reach an agreement for a broader group of employees also). The Union had made clear in its correspondence that the scope of the persons to be covered by any enterprise agreement could be the subject of negotiations.
Ground 2 - genuinely trying to reach an agreement - the failure to provide an agreement ground
[24] Spotless submitted that the Union is not genuinely trying to reach agreement as it has not provided it with a copy of the proposed enterprise agreement which it seeks to negotiate. It submits it has requested that it do so and the Union has declined.
[25] There can be no doubt on the documentation and the evidence that there has been a lot of correspondence concerning the Union's desire to reach an agreement with Spotless in relation to the terms and conditions to be afforded to employees who are cleaners. What I need to consider is whether I should be satisfied on the evidence that the Union has been, and is, genuinely trying to reach an agreement with Berkeley Challenge and Clean Domain. I am satisfied it has been and this is despite the fact that the Union has not given Spotless a specific draft agreement for either or both of the employer companies.
[26] The Union has chosen to roll out its Clean Start campaign firstly by reference to the identification of certain industries and then in relation to certain sectors of those industries. I see no basis to criticise it for that. In correspondence commencing in October 2010 it has made clear that it had decided to extend the campaign to cleaners in the retail sector. In doing so it chose to send multiple letters to Spotless, the only difference in their terms being that they identified the different centre or sites at which the employees were engaged. Nonetheless, from the start it had made clear its intention to bargain for cleaners in the retail industry. An earlier part of the campaign had targeted cleaners in the central business districts - the CBD Clean Start Agreement campaign. Spotless did not deny the Unions submission that it was aware of the terms of the agreement for that CBD campaign and that Spotless and Berkeley Challenge were signatories to it. The Union made it clear that the retail campaign would be based on the CBD agreement and it appears that it is only in more recent times Spotless has complained about not knowing what the Union was seeking. That is at odds with the evidence. Initially Spotless was not concerned by not having received a specific draft agreement for Berkeley Challenge or Clean Domain. Its position was simple - no agreement was appropriate and the Cleaning Services Award should continue to be the basis for setting cleaner’s terms and conditions of employment. Further, nowhere in the correspondence sent by Spotless does it complain, as its counsel now does, that it did not have details of wage rates, penalties, allowances and specific conditions. I accept that by May 2011 it did indicate that it sought a copy of the proposed agreement and other information, and that when it was provided it would consider the merits of entering into bargaining. I note also that Spotless’s stated desire to have a copy of a draft agreement before it may consider bargaining does not seem to have been a continuing concern. In its most recent correspondence of 23 August 2011 it declined to enter into negotiations, not because it did not have a detailed draft agreement, but because it preferred to remain within the “Modern award framework”, the position it had taken in its correspondence of 27 October 2010.
[27] I find the key principles set out in the Union’s letters about the matters to be negotiated and covered by an agreement to be sufficiently clear for Spotless to know what was being sought. The Spotless reply of 27 October 2010 suggests a better understanding of the main aspects of the Union’s claim than it acknowledges in more recent times. Its reply addresses the additional costs that would be associated with entering such an agreement in particular. It declined to enter into any negotiations or attend meetings to enable the Union to better inform it of more detail of its claims.
[28] In considering this ground of opposition to the orders sought I have also considered the content of the “General Announcement” of 4 April 2011. Nowhere in that document does the author indicate he is unaware of what the Union is seeking nor that Spotless needs a detailed draft agreement tailored to the two employers before it can decide whether to enter into negotiations. The terms of the announcement suggest a good understanding about what is encompassed by the agreement sought by the Union for cleaners in the Australian retail sector.
[29] In reaching this decision I have taken into account the Full Bench decisions in Total Marine Services Pty Ltd and Maritime Union of Australia 5 and Farstad Shipping (Indian Pacific) Pty Ltd and Maritime Union of Australia6. I have made an assessment of all the relevant circumstances as established by the evidence and find that the Union has been, and is, genuinely trying to reach an agreement with the employers of the employees who are to be balloted.
Ground 3 - Failure to commence bargaining ground
[30] I have indicated earlier in relation to the first ground of opposition that the FW Act does not preclude applications for protected action ballot orders being made in circumstances where bargaining has not been initiated and/or commenced. JJ Richards is authority for this proposition, a fact Spotless concedes. That being the case I do not accept this is a valid ground of opposition to the orders being made.
Conclusion
[31] I do not accept any of the grounds in opposition to the making of the protected action ballot orders sought by the Union. Accordingly, I find that each of the relevant requirements of the FW Act, and those contained in ss.437 and 443 in particular have been met. I am therefore required to make the orders sought. Those orders 7 will be largely in terms of the drafts sought by the Union. The drafts contained some minor typographical errors which have now been corrected. They will issue at the same time as this decision is published.
SENIOR DEPUTY PRESIDENT
Appearances:
Y. Shariff, Counsel with A. Ratnam for Clean Domain and Berkeley Challenge Pty Ltd
E. McMillan for United Voice
Hearing details:
2011.
Sydney:
October 21.
1 MA000022
2 ExSpotless 2 para 16
3 [2010] FWAFB 6519
4 [2011] FWAFB 3377
5 [2009] FWAFB 368
6 [2011] FWAFB 1686
7 PR516075 & PR516076
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