[2016] FWC 8002
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Kane Constructions Pty Ltd
(B2016/1126)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 9 NOVEMBER 2016

Proposed protected action ballot of employees of Kane Constructions Pty Ltd; whether CFMEU has been and is genuinely trying to reach agreement; application granted.

[1] Kane Constructions Pty Ltd (Kane) conducts a building and construction business predominately focused on building and construction projects within government and government related sectors. Certain employees of Kane are covered in their employment with Kane by the Kane Construction Pty Ltd and the CFMEU Building and Constructions Industry Enterprise Agreement 2011-2015 (Agreement), the nominal expiry date of which , has passed. Some of these employees are members of the Construction, Forestry, Mining and Energy Union (CFMEU).

[2] On application by the CMFEU, Commissioner Ryan made a majority support determination 1 on 17 August 2016 and on 29 August 2016, Kane gave relevant employees a Notice of Employee Representational Rights. The CFMEU is a bargaining representative for the proposed agreement. The notification time for the proposed agreement is 17 August 2016.

[3] Since bargaining commenced there have been a number of meetings between representatives of Kane and the CFMEU about the proposed agreement through the period of late August 2016 to October 2016.

[4] By application lodged on 24 October 2016, the CFMEU has applied for a protected action ballot order (PABO) pursuant to s.437 of the Fair Work Act 2009 (Act). The group of employees that are proposed to be balloted are employees of Kane who are members of the CFMEU and for whom the CFMEU is a bargaining representative, and who will be covered by the proposed enterprise agreement. The application was amended without objection on 4 November 2016. 2 The amended application removed a form of purported industrial action from the questions proposed and sought a period of 21 days from the date of any order as the date by which any ballot should close. Kane opposes the making of a PABO but in the event that a PABO is made, it seeks that the date by which voting in the protected action ballot closes be 20 working days after the date of any order.3

[5] Section 437 of the Act enables a bargaining representative to apply for a PABO. Section 437(1) provides:

[6] Excepting the restriction on making an application in ss.437(2A) and 438(1), the Commission must make a PABO in relation to employees who will be covered by a proposed agreement in the circumstances set out in s.443. There is no contest that the restrictions do not apply in the instant case. Section 443 relevantly provides:

(3)  A protected action ballot order must specify the following:

[7] The concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular bargaining. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s.443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s.443 must be applied. Neither is it appropriate nor possible to establish rigid rules for the required point of bargaining that must be reached. All of the relevant circumstances must be considered in assessing whether an applicant for a PABO has met the test in s.443 of the Act. This will frequently involve considering the extent of progress in negotiations, and the steps taken in order to try and reach an agreement. 4

[8] To the extent that it may suggested that there has been a failure to meet good faith bargaining requirements, it must be borne in mind that although there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. An applicant for a PABO may not meet a particular good faith bargaining requirement, but may nevertheless be genuinely trying to reach an agreement. 5

[9] Kane maintains that it cannot be said that the CFMEU has been and is genuinely trying to reach an agreement with Kane. 6 Kane submits that when consideration is given to the conduct of the CFMEU during bargaining, that conduct shows that the CFMU has not been genuine in trying to reach agreement with Kane. In substance, this submission relies upon an assertion made by Kane that the CFMEU and Kane had agreed on a process for bargaining which involved the bargaining parties working through a number of identified issues, and that the CFMEU, in effect has reneged on the agreed process.7 It follows, according to Kane, that the conduct of the CFMEU in failing to work through the agreed process, has the result that the Commission cannot be satisfied as required by s.443(1) of the Act and so a PABO must not issue. Essentially that which is being alleged is bad faith conduct on the part of the CFMEU.

[10] In order to make good this point, Kane relied on the evidence of Mr Geoff Purcell, who is the Director of Kane. Mr Purcell is responsible for Kane’s Victorian construction department. He has been involved in the bargaining process and has attended all of the bargaining meetings. Mr Purcell gave evidence about the bargaining and the conduct of the CFMEU during bargaining. Mr Purcell’s evidence is summarised as follows below:

[11] The CFMEU through Mr Edwards maintained that at the bargaining meeting of 30 August 2016, Kane was requested to provide a list of issues in respect of the CMFEU Pattern Agreement, in writing. 51The CFMEU pointed to annexure 5 of Mr Purcell’s witness statement to demonstrate its argument. Annexure 5 is a copy of the notes taken by Mr Frisina. Under the subheading of ‘Kane’, the first dot point concludes with “Kane to log issues”. The CFMEU maintains that Kane failed to provide its list or log of issues.52 Though Mr Purcell had a different recollection of the 30 August 2016 meeting, the contemporaneous notes taken by his colleague support the evidence of Mr Edwards and I accept that evidence.

[12] The CFMEU maintained and Mr Purcell accepted that Kane had not specified to the CFMEU the issues pertaining to the third substantive issue described as “Kane specific issues” and that the first time these issues have been articulated was in Mr Purcell’s witness statement filed in these proceedings. 53

[13] The CFMEU says that to date, Kane has not articulated a position on wages, allowances or industry fund. 54 Mr Purcell accepted that this is the case but explained that Kane’s position on these matters was contingent on assessing the productivity clauses proposed and that this had not yet occurred.55 The CFMEU says that it has made some concessions and taken on board some of the points that Kane has raised during the course of negotiations.56 This is accepted by Mr Purcell though the significance of the concessions seem to be in issue.57

[14] The CFMEU maintains that Kane did not want to bargain for an enterprise agreement with the CFMEU, which it says is evident by the CFMEU’s application for a majority support determination. 58 Be that as it may, it is clear that Kane is now bargaining.

[15] Furthermore, it says that Kane’s reluctance to provide the CFMEU with a specific response to its wages, allowances and industry funds proposal and by failing to detail Kane’s specific issues is the result of a desire, on the part of Kane, not to make an agreement with the CFMEU. 59 This is disputed.

[16] Mr Purcell gave evidence that the reason for objecting to the application is because Kane has not “finished what we had agreed to do”. 60 Mr Purcell’s explanation was that the principal issues were in a logical order and that the parties had been working through the issues progressively and that the parties had not finished its discussion in relation to two productivity clauses and Kane’s specific issues.61 Mr Purcell says that these discussions would have allowed Kane to form a view on the agreement as a whole.62

[17] The CFMEU says that Kane’s objection seems to boil down to this: that a bargaining representative is not genuinely trying to reach an agreement unless the parties have reached a particular point in negotiations where a decision can be made about whether it accepts or rejects the proposal. 63

[18] The CFMEU submits that Kane’s objection is nonsense and that the uncontroverted evidence is that meetings have occurred, they have been lengthy meetings and they have been attended by the CFMEU. 64 The CFMEU says that it has provided extensive responses to issues raised by Kane, it has clarified its position in relation to a number of clauses and it has moved its position in relation to a number of clauses, all of which speak of an attempt to genuinely reach agreement.65

[19] Kane says that it may be the case that the CFMEU’s intent, object and purpose is to reach an agreement with Kane, however, that alone is not enough to satisfy the jurisdictional requirement in s.443(1)(b). 66

[20] Kane submits that since the first meeting the CFMEU has set about the course of attempting to jump the gun and claim an “impasse”. 67 It says that the CFMEU is keen to declare an “impasse”, so that it can proceed to the step of taking protected industrial action, rather than sit down and engage with Kane.68 Kane submits that the parties have not had an opportunity to stick to the process to which the parties had committed.69

[21] Kane says that the time between the third and fourth meeting during which nothing occurred, the failure by the CMFEU to work through the agreed issues, together with the no show at the 27 October meeting supports a finding that the Commission cannot be satisfied that the CFMEU has been and is genuinely trying to reach agreement. 70 Mr Boncardo provided an explanation for the so called “no show,” which I accept.71 There was no deliberate conduct by the CFMEU aimed at aborting the meeting. Mr Edwards believed he was required to attend at the Commission to give evidence.

[22] Kane also says that the failure on part of the CFMEU to bargain in relation to the third issue for negotiation, supports a conclusion that the Commission cannot be satisfied that the CFMEU has been and is genuinely trying to reach agreement. This submission is not supported by the evidence given by Mr Purcell who indicated that the parties had not yet had an opportunity to discuss the matters concerning this issue. As earlier indicated, the substance of this issue was first articulated by Kane in Mr Purcell’s witness statement filed in this proceeding. The CFMEU cannot be criticised for a failure to discuss that which was not identified.

[23] As to the central thesis of Kane’s submission, I do not accept that there was any agreement or understanding about a bargaining process that the parties would follow, and by implication, that the parties would not resort to other available tools in the bargaining tool kit until the process had been completed.

[24] On the evidence, I am satisfied that Kane wished to discuss three broad categories of issues described in Mr Kane’s evidence. The CFMEU was prepared to consider and discuss these issues but requested details in respect of some of the issues. The evidence does not establish that there was an agreement or understanding between the parties that Kane’s categories of issues was a process that would guide bargaining or that discussions about those issues needed to be completed or even well advanced before other available avenues might be pursued. The combined evidence of Mr Purcell and Mr Edwards, viewed with the correspondence between the parties shows a course of bargaining that seems wholly unremarkable.

[25] I do not discount the possibility that where bargaining parties have agreed to a bargaining process, that a failure to follow through or abide by the agreed process might lead to a conclusion that the offending party is not genuinely trying to reach an agreement with the other. But this is not such a case. The evidence does not support the case theory advanced by Kane.

[26] Moreover, I accept the evidence given by Mr Edwards about the content and conduct of the various bargaining meetings and the written communications passing between the parties about the proposed agreement. In truth, with the exception of the “bargaining process agreement” and the “list of issues” request, there is little dispute between the evidence of Mr Purcell and Mr Edwards about the course of bargaining.

[27] Mr Purcell’s own evidence was that the CFMEU had been devoting both time and resources into negotiations with Kane for the purpose of obtaining an agreement. 72

[28] I well understand Kane’s desire that the issues it seeks to discuss with the CFMEU about the proposed agreement be worked through in an orderly fashion and without disruption. Equally, the CFMEU is entitled, subject to the Act, to apply for the order it now seeks. That it has done so before all of Kane’s issues had been addressed, is not, without more, a basis for concluding that the CFMEU has not been and is not genuinely trying to reach agreement with Kane, in light of the evidence about the steps that the CFMEU has taken in bargaining for the proposed agreement. In my view that evidence establishes that the CFMEU has been and is genuinely trying to reach agreement with Kane and I am so satisfied.

[29] The CFMEU seeks that the date by which voting in the protected action ballot closes is 21 calendar days after my decision. Both of the parties had no objection to my associate conferring with the Australian Electoral Commission (AEC) to establish whether the requested timeframe was appropriate. The AEC maintains a preferred period of 20 working days and this remained its position during discussions with my associate. I am not persuaded that there are any particularly important factors which would warrant a departure in this case from the AEC’s preferred timeframe for the organisation and conduct of a ballot.

Conclusion

[30] For the reasons given above I am satisfied that the CFMEU, as bargaining representative for the proposed agreement and applicant for a PABO, has been and is genuinely trying to reach agreement. I am satisfied and it was not in contest that the other statutory criteria have been met.

[31] A protected action ballot order will be made and is separately issued in PR587384.

Seal of the Fair Work Commission with Member's signature

DEPUTY PRESIDENT

Appearances:

Mr P Boncardo on behalf of the CFMEU.

Mr B Avallone on behalf of Kane.

Hearing details:

2016.

Melbourne.

November 4.

 1   PR548305.

 2   Transcript PN9- PN12.

 3   Respondent’s Outline of Submissions dated 2 November 2016 at [55], [58] and [60].

 4   Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368; (2009) 189 IR 407 at [32]-[33]; Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers' Union (AWU) [2015] FWCFB 210 at [34]-[35].

 5   See the decisions of Gostencnik DP in NUW v Riverland Oilseeds Pty Ltd  [2013] FWC 5914 at [17]-[ 19]; Hamberger SDP in TWU v CRT Group Pty Ltd [2009] FWA 425 at [26], and Lewin C in NUW v SKF Australia Pty Ltd [2010] FWA 6557 at [19] - [21]; endorsed by a Full Bench of the Commission in Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers' Union (AWU) [2015] FWCFB 210 at [18].

 6   Ibid at [2].

 7   See Transcript PN410 - 411.

 8   Ibid at [6].

 9   Ibid at [8].

 10   Ibid at [9].

 11   Ibid at [12].

 12   Ibid at [13].

 13   Ibid at [14].

 14   Ibid at [15].

 15   Ibid at [17].

 16   Ibid at [19].

 17   Ibid at [23].

 18   Ibid at [24].

 19   Ibid at [25].

 20   Ibid at [29].

 21   Ibid at [30].

 22   Ibid at [31].

 23   Ibid at [33].

 24   Ibid at [34].

 25   Ibid at [35].

 26   Ibid at [36].

 27   Ibid at Annexure 12.

 28   Ibid at [40].

 29   Ibid at [43], Transcript PN198.

 30   Exhibit 7 at [42].

 31   Ibid at [45].

 32   Ibid at [46], [48] – [49].

 33   Ibid at [51].

 34   Ibid at [53].

 35   Ibid.

 36   Exhibit 7 at [55].

 37   Ibid at [56].

 38   Ibid at [60].

 39   Ibid at [62].

 40   Ibid at [63].

 41   Ibid at [64].

 42   Ibid at [65].

 43   Ibid at [69].

 44   Ibid at Annexure 22.

 45   Ibid at [69].

 46   Ibid at [70].

 47   Ibid at [72].

 48   Ibid at [75].

 49   Ibid at [76].

 50   Ibid at [77].

 51   Exhibit 1 at [12].

 52   Transcript PN219 – 221.

 53   Transcript PN245.

 54   Transcript PN249 – 251.

 55   Transcript PN252 – PN254.

 56   Transcript PN258 – PN282.

 57   Ibid.

 58   Transcript PN298 – PN300.

 59   Transcript PN301.

 60   Transcript PN318

 61   Transcript PN329.

 62   Ibid.

 63   Transcript PN374.

 64   Transcript PN375.

 65   Transcript PN373.

 66   Respondent’s Outline of Submissions dated 2 November 2016 at [34].

 67   Transcript PN411.

 68   Respondent’s Outline of Submissions dated 2 November 2016 at [38].

 69   Transcript PN421.

 70   Transcript PN423.

 71   Transcript PN376.

 72  Transcript PN315 – PN317.

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<Price code C, PR587271>