| FWC 477|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
De Martin & Gasparini Pty Ltd and De Martin & Gasparini Pumping Pty Ltd T/A Boral De Martin & Gasparini
Construction, Forestry, Mining and Energy Union - Construction and General Division, New South Wales Divisional Branch(C2015/78)
SYDNEY, 19 JANUARY 2015
s.418 Application for an order that industrial action by employees or employers stop etc.
 This is an application in accordance with section 418 of the Fair Work Act, 2009 (the Act) by De Martin & Gasparini Pty Ltd and De Martin & Gasparini Pumping Pty Ltd t/as Boral De Martin & Gasparini seeking Orders to stop industrial action from occurring. I will refer to these Companies in this decision as DMG.
 The Respondent in these proceedings is the Construction, Forestry, Mining and Energy Union - Construction and General Division, New South Wales Divisional Branch (CFMEU).
 Mr Tony Vernier, of Counsel, sought leave to appear with Mr Jason Donnelly from National Workplace Lawyers on behalf of DMG. Mr Jim Pearce, of Counsel, sought leave to appear on behalf of the CFMEU. Leave was granted in accordance with s596(2)(a) of the Act.
 The hearing was conducted on 15 January 2015. Indefinite strike action was due to commence on 16 January 2015. An Interim Order was issued on 15 January 2015 to stop the intended industrial action until the matter was determined.
 DMG relied upon evidence and witness statements from:
 The CFMEU relied upon evidence and a witness statement from Mr Salvatore (Sammy) Manna 4 who is an experienced Organiser with the CFMEU. The CFMEU also called Mr Sleeman as a witness. Mr Sleeman is the HR Manager for Boral. Mr Sleeman had been sitting at the Bar table providing instructions to Mr Donnelly.
 A Protected Action Ballot was approved by Deputy President Lawrence on 21 November 2014 (B2014/1601) 5. Relevantly, section 443 of the Act states:
(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).” 6
 The Australian Electoral Commission (AEC) declared the result of this ballot on 19 December 2014. 86.6% of the employees who returned their ballot paper voted to approve the industrial action. The question put to the employees by the AEC was in the following terms:
The question to be put to voters in the ballot is:
In support of reaching an enterprise agreement with your employer do you endorse the taking of protected industrial action by CFMEU members against your employer, which may involve taking separately, concurrently and/or consecutively any or all of the action set out below:
1 hour stoppages of work; 2 hour stoppages of work; 3 hour stoppages of work; 8 hour stoppages of work; 12 hour stoppages of work; 24 hour strikes; 48 hour strikes; 72 hour strikes; strikes for a period of one week; indefinite strikes; indefinite or periodic bans on overtime” 7
 DMG argued that the CFMEU was participating in pattern bargaining with 21 concrete placement and concrete pumping companies. DMG allege that the CFMEU have repeatedly stated that they will only sign the template CFMEU Enterprise Agreement. Mr Martino’s and Mr Walker’s statements support this claim.
 Pattern Bargaining is defined in the Act in the following terms:
(1) A course of conduct by a person is pattern bargaining if:
(a) the person is a bargaining representative for 2 or more proposed enterprise agreements; and
(b) the course of conduct involves seeking common terms to be included in 2 or more of the agreements; and
(c) the course of conduct relates to 2 or more employers.
Exception—genuinely trying to reach an agreement
(2) The course of conduct, to the extent that it relates to a particular employer, is not pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer.
(3) For the purposes of subsection (2), the factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include the following:
(a) whether the bargaining representative is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the agreement;
(b) whether the bargaining representative is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees;
(c) whether the bargaining representative is meeting the good faith bargaining requirements.
(4) If a person seeks to rely on subsection (2), the person has the burden of proving that the subsection applies.
Genuinely trying to reach an agreement
(5) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.”
 DMG argued that the proposed action can only be protected if it is “employee claim action” and referred me to sections 408 and 409 of the Act:
Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following:
(a) employee claim action for the agreement (see section 409)”
Employee claim action
(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
Protected action ballot is necessary
(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).
Industrial action must not be part of pattern bargaining
(4) A bargaining representative of an employee who will be covered by the agreement must not be engaging in pattern bargaining in relation to the agreement.”
 His Honour approved the protected action ballot and the ballot conducted by the AEC was successful. The CFMEU then gave the requisite notice in accordance with section 414 of the Act. The next step in the bargaining process is for the protected industrial action to occur.
 I agree with the sentiments of Mr Vernier when he said on 14 November 2014 in Matter B2014/1581 before His Honour, Senior Deputy President Watson:
The crux of the matter is that at this point in time based on the negotiations that had taken place there appears to be an impasse in what the agreement should look like and the monetary content in the agreement. The company has made it absolutely clear to the union that it will propose a vote. It’s entitled to do that... 8
...Whether there’s one meeting, no meetings or four meetings or 50 meetings doesn’t mean that there’s bad faith bargaining. All it simply means is the parties can’t agree. The employers are entitled to move to the next phase of this process and that is put the agreement that they want up for a vote. And there can’t be anything wrong with that...” 9
 The submissions that Mr Vernier made to His Honour in relation to the CFMEU could now equally be made in relation to DMG. I have taken this into account.
 The CFMEU argued that the issue of pattern bargaining does not arise in this situation because DMG have always had a unique enterprise agreement, with superior conditions of employment compared to the rest of the industry. Under the 2011 DMG Agreement employees were engaged on weekly hire, were paid a tool allowance and received a higher weekly superannuation payment. All of these conditions are superior to the industry standard.
 Mr Mazzarolo was not a convincing witness. He tried on many occasions to avoid answering the questions of Mr Pearce. I do not believe that he does not know the rates of pay or conditions of employment of his competitors. I also do not accept his evidence that he was not sure whether the CFMEU were seeking for the DMG superior conditions to flow over to the 2014 Agreement. On 14 November 2014, Mr Brian Parker, NSW Secretary of the CFMEU wrote to twenty of the Concrete Placing Contractors in relation to the decision of the FWC mentioned earlier. I note paragraph 23 states:
“23. On 10 November 2014, the consultative committee of De Martin & Gasparini Pty Ltd and De Martin & Gasparini Pumping Pty Ltd met for the first time to discuss the terms of the proposed enterprise agreement. Louie Mazzarolo agreed to make improvements to the proposed enterprise agreement in respect of the tool allowance, 10 hour break, and lunch break. However Louie Mazzarolo told the consultative committee that he would not change the terms of the proposed agreement; instead he would issue a letter to employees advising of the agreed improvements.” 10
 The proposed Enterprise Agreement was the employer pattern agreement that had been endorsed through the Concrete Placers Association of NSW (C.P.A). Mr Mazzarolo did not dispute this statement in his evidence.
 Under cross examination, Mr Manna also referred to a meeting of the DMG Consultative Committee that occurred on 17 November 2014, which met immediately after the rejection of the CPA proposed pattern agreement. Mr Manna was not in attendance at the meeting but the CFMEU delegate for DMG, who is also a member of the Union’s Committee of Management, was in attendance and provided Mr Manna with a report. Mr Manna had been advised by this delegate that the employees on the DMG Consultative Committee had once again raised the need for the superior conditions to be rolled over into the 2014 Agreement.
 I acknowledge that this evidence was not contained in Mr Manna’s statement and is hearsay because Mr Manna was not present at the Consultative Committee meeting. However, Mr Vernier did not seek to return Mr Mazzarolo to the witness box to test Mr Manna’s evidence on this meeting. I have taken this into account.
 I accept the evidence of Mr Manna that Mr Mazzarolo knew that the 2014 DMG Enterprise Agreement would contain those superior conditions.
 The CFMEU advised the Commission that it did not seek to rely on the exception provisions of s412(2) in relation to good faith bargaining, on the basis that it was not involved in pattern bargaining due to the uniqueness of the DMG Agreement.
 Mr Pearce referred me to the decision of the Full Bench in Trinity Garden Aged Care and Another v The Australian Nursing Federation 11. The Full Bench endorsed the definition applied by Vice President Lawler of the term “common” to mean the “same” or “identical”. Therefore, for the CFMEU to be involved in pattern bargaining with DMG, the terms of the proposed 2014 DMG Agreement would have to be identical to that of another employer. I have taken this into account.
 I find that the DMG negotiations do not form part of any purported pattern bargaining. DMG have always had a different Enterprise Agreement compared to the rest of the industry. There is no evidence before me that this scenario would change in the 2014 Agreement.
 Mr Mazzarolo had been advised on two separate occasions by the DMG Consultative Committee of this expectation. An expectation to which Mr Mazzarolo concurred on 10 November 2014.
 The proposed indefinite strike is protected industrial action.
 The application is dismissed.
<Price code C, PR560225>
1 Exhibit D1
2 Exhibit D2
3 Exhibit D3
4 Exhibit C1
5 Exhibit C1 Annexure E
6 The Fair Work Act, 2009 (the Act)
7 Exhibit C1 Annexure F
8 Transcript of proceedings B2014/1581 PN472
9 Transcript proceedings B2014/1581 PN473
10 Exhibit C1 Annexure D
Printed by authority of the Commonwealth Government Printer