WGC Crane Group Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union
[2018] FWC 6330
•12 OCTOBER 2018
| [2018] FWC 6330 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418—Industrial action
WGC Crane Group Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union
(C2018/5679)
| COMMISSIONER RIORDAN | SYDNEY, 12 OCTOBER 2018 |
Alleged industrial action at WGC Crane Group Pty Ltd.
WGC Crane Group Pty Ltd (the Applicant) made an application on 10 October 2018 for an order from the Fair Work Commission (the Commission), in accordance with section 418 of the Fair Work Act, 2009 (the Act), to stop members of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) – (the Respondent) from taking industrial action commencing on 5am on 15 October 2018.
This matter was heard concurrently with C2018/4679 (Boom Logistics Limited v CFMMEU). Leave was granted in accordance with section 596 of the Act to allow Mr O. Fagir, Counsel and Mr S. Forster from Minter Ellison to represent the Applicant and for Mr S. Crawshaw, Senior Counsel to represent the Respondent along with the Respondent’s Legal Officer, Ms S. Hayward.
These parties have a recent litigation history before the Commission in relation to the current enterprise agreement negotiations.
On 31 August 2018, Deputy President Dean issued an Order[1] in accordance with section 418 of the Act determining that the intended industrial action would not be protected action. The CFMMEU appealed this decision. On 8 October 2018, a Full Bench of the Commission handed down its decision in relation to grounds 9 and 10 of the Appeal. The remaining grounds of appeal are reserved and will be determined at a later date. I note that the grounds which the Full Bench has yet to determine include whether the CFMMEU was participating in pattern bargaining and whether the CFMMEU were generally trying to reach Agreement.
Witness Statements were attested by Mr Marc Sergi, Area Manager for the Applicant and by Ms Rita Mallia, the State President, Construction Division of the Respondent.
Whilst all of the evidence that was presented before Her Honour has been incorporated into this matter via the statements of Mr Sergi and Ms Mallia, it is not appropriate for the Commission, as presently constituted, to provide a determination on that evidence or an opinion on Her Honour’s Decision. That task of review is the responsibility of the Full Bench.
This decision relates to a different set of circumstances in relation to the conduct of the negotiating parties since 31 August 2018 as well as a different date for industrial action, namely, 15 October 2018. The Applicant claims that the Respondent is participating in pattern bargaining and not genuinely trying to reach an agreement. As a result, the Applicant submitted that the industrial action planned for 15 October 2018 cannot be classified as protected industrial action.
I note that the CFMMEU was the sole bargaining representative of the employees.
On 11 September 2018, the Respondent significantly amended its log of claims. Unsurprisingly, the Applicant was highly critical of the Respondent adopting this course of action.
The Applicant was of the view that, following negotiations with the Respondent, that the Applicant had agreed to 95% of the Respondent’s original claims. The Applicant has accused the Respondent of reneging on previously agreed matters and not negotiating in good faith.
I note that on 19 September 2018, the State Secretary of the Respondent, Mr Darren Greenfield, sent the Applicant correspondence which relevantly included the following passage:
“19 September 2018
Dear Mr Sergi
…
Re: Bargaining for a new enterprise agreement between the CFMEU and WGC Cranes
…
2. The CFMEU has revised its log of claims after obtaining instructions from its members and giving consideration to WGC’s response to the initial log of claims. Any suggestion that the CFMEU is not meeting is good faith bargaining requirements is misguided and without substance. The CFMEU has, and will continue, to meet its obligations under s.228 of the FW Act in an effort to reach agreement with WGC on behalf of its members.
…
4. So far as the rates of pay are concerned, we have acceded to your request that rates not be backdated to 2017 and have, in consideration of this concession, sought marginally higher rates from 2018 onwards.”
The fact that the Respondent has dropped its claim for back pay and increased its claim on prospective rates of pay is but one indication that the Respondent is not participating in pattern bargaining and actively trying to reach an agreement with the Applicant.
On 20 September 2018, the Applicant commenced the process of having its employees vote on a proposed WGC Smeaton Grange Agreement and a Wollongong Agreement without the agreement of the Respondent.
The process of this ballot became the subject of proceedings before Her Honour on 27 September 2018.
On 28 September 2018, the two agreements were voted on by the employees. The agreements did not obtain majority support amongst the employees. The bargaining process continues.
The taking of protected industrial action is a legitimate and prescribed form of pressure which can be exercised by all parties during the bargaining process. The Applicant is well within its rights to respond to any protected action from the Respondent in a manner in accordance with the Act. It is very common for protected industrial action from either side, to focus the attention of the bargaining representatives.
I find that the Respondent is not participating in pattern bargaining.
I find that the Respondent is genuinely trying to reach agreement with the Applicant.
The application is dismissed.
COMMISSIONER
Appearances:
O Fagir of Counsel with S Forster for WGC Crane Group Pty Ltd.
S Crawshaw SC with S Hayward for the Construction, Forestry, Maritime, Mining and Energy Union.
Hearing details:
2018.
Sydney:
October 11.
<PR701258>
[1] [2018] FWC 5101
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