United Voice v Cub Pty Ltd

[2015] FWC 5500

[2015] FWC 5500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Voice
v
CUB Pty Ltd
(B2015/1166)

DEPUTY PRESIDENT KOVACIC CANBERRA, 11 AUGUST 2015

Proposed protected action ballot of employees of CUB Pty Ltd.

[1] This is an application by United Voice made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order (PABO) in relation to certain employees of CUB Pty Ltd (CUB – the Respondent).

[2] United Voice has provided a Witness Statement from Mr Daniel Robson, an Industrial Organiser with the Victorian Branch of United Voice, addressing the statutory grounds. That Witness Statement makes it clear that the parties have met on approximately seven occasions since 16 February 2015 in an effort to negotiate the terms of an enterprise agreement. In his Statement, Mr Robson deposed that while agreement was reached between the parties on 14 May 2015 the resulting proposed agreement was voted down by employees on 2 July 2015. Subsequent discussions have not resulted in an agreement.

[3] On 7 August 2015 I was advised by Mr Felix Blackler, HR Business Partner, Manufacturing & Technical for CUB, that the Respondent did not oppose the ballot. However Mr Blackler sought the inclusion of a paragraph into the PABO which provided for seven days’ notice of any industrial action due to the nature of the business under s.414(2)(b) of the Act. A similar paragraph had been inserted into the PABO issued in respect of the Construction, Forestry, Mining and Energy Union (CFMEU) in July 2015 1. CUB, however, did not challenge that United Voice had been and was genuinely trying to reach agreement in respect of either site.

[4] The inclusion of a paragraph requiring seven days’ notice of any industrial action was opposed by United Voice.

[5] A telephone hearing was held on 10 August 2015. At that hearing, United Voice was represented by Mr Robson, while CUB was represented by Mr Blackler and Mr Gary Woodburn. At that hearing, Mr Blackler relied on the reasons for the extended period of notice of industrial action cited by CUB in respect of the abovementioned CFMEU PABO application. In short, those reasons were that CUB needed seven days’ notice to clear all fermentations and avoid having to incur significant losses as a result of potentially having to discard significant volumes of product which did not meet quality standards.

[6] At the hearing, Mr Robson indicated that on previous occasions he understood that United Voice members had, while undertaking protected industrial action, performed work associated with the fermentation process to avoid the potential losses cited by CUB. The hearing concluded with the Commission reserving its decision and the parties agreeing to have further discussions across the course of 10 August 2015 regarding the possibility of some form of exemption from industrial action for the fermentation process. The parties undertook to inform the Commission of the outcome of those discussions by close of business on 10 August 2015.

[7] Late on 10 August 2015, Mr Blackler copied the Commission his email response to Mr Robson indicating that CUB accepted United Voice’s proposal to add wording to the PABO to exclude the fermentation area from any industrial action with the noticed period remaining at three days.

[8] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order which incorporates the abovementioned undertaking by United Voice. The order [PR570552] will be issued in conjunction with this decision.

 1   PR569133

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