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[2009] AIRC 543
Australian Industrial Relations Commission
2009-06-04
Mr P
Original judgment source is linked above.
s.451(1) - Protected action
Construction, Forestry, Mining and Energy Union
Proposed protected action ballot by employees of Caelli Constructions (Vic) Pty Ltd in relation to Notice BP2008/3215.
[1] On 24 March 2009, the Construction, Forestry, Mining and Energy Union (CFMEU) applied under s.451(2) of the Workplace Relations Act 1996 (the Act) for a secret ballot order in relation to a bargaining period (BP2008/3215) instituted by it, on 12 August 2008, in respect of Caelli Constructions (Vic) Pty Ltd (Caelli). In the bargaining period, the CFMEU gave notice of its intention to secure an agreement with Caelli in respect of persons who were members of, or eligible to be members of the CFMEU performing work with Caelli within the scope of the National Building and Construction Industry Award 2000. [1]
[2] The application was listed on 26 March, 16 and 28 April and 7 and 26 May 2009. The application was adjourned, at the request or with the concurrence of the applicant, on each of the March and April dates, with the matter being substantively heard on 7 and 26 May 2009.
[3] The CFMEU sought an order for a secret ballot, to be conducted by attendance ballot, in which the following questions would be posed:
"For the purpose of supporting or advancing claims in respect of the proposed union collective agreement with your employer, do you endorse the following types of industrial action being taken by CFMEU members:
• Stoppages of the performance of work for 4 hours;
• Stoppages of the performance of work for 12 hours;
• Stoppages of the performance of work for 24 hours;
• An indefinite stoppage of the performance of work;
• Bans on delivery of structural steel and/or steel components." [2]
[4] The application was opposed by Caelli on the basis that the Commission could not be satisfied that during the bargaining period the CFMEU had genuinely tried to reach agreement with the employer of the relevant employees and was genuinely trying to reach agreement with the employer; and should find that the CFMEU was engaged in pattern bargaining (s.461).
[5] Caelli also contended that in the event the Commission was satisfied of the s.461 matters and proceeded to make a secret ballot order:
[6] The CFMEU brought evidence from Mr E Spernovasilis, its organiser responsible for the progression of bargaining arising out of the CFMEU's 12 August 2008 bargaining period notice.
[7] Caelli brought evidence from Mr G Caelli, its Construction Manager; Mr P Caelli, it's Manager; and Ms Beth Murdoch, Industrial Relations Advisor for the Master Builders' Association of Victoria (MBAV). Caelli also tendered a witness statement of Mr L Cross, Manager Industrial Relations/Occupational Health and Safety of the MBAV, which was accepted into evidence on the basis that, absent any opportunity for cross-examination, it would carry no weight in relation to factual matters in contest.
[8] The following factual background can be established by the evidence brought by the parties and documentary materials relied upon by them.
1. Caelli has been party to a series of collective agreements with the CFMEU which were drafted without input from Caelli as an individual business, with common terms and conditions to a large number of agreements with other employers in the building and construction industry. [3] These agreements were agreed between the CFMEU and the MBAV.[4]
2. Between April and August 2008, [5] a 2008-2011 industry agreement was concluded between the CFMEU and the MBAV, to operate from March 2009. A CFMEU flyer - C and G Worker Express, dated November 2008 stated "The 2008-2011 EBA has been endorsed by CFMEU members and approved by the Department of Employment and Workplace Relations, and is now ready for signing in the CFMEU office".[6] The CFMEU in it publication C and G Worker, Autumn 2009, noted "We want the industry standard to apply to all workers in the industry" and "we need to ensure that all companies observe the industry standard for wages and conditions".[7]
3. Hundreds of employers have become party to an agreement in the terms of the 2008-2011 industry agreement. [8]
4. There were brief informal discussions about the agreement to replace the 30
[9] The relevant statutory provisions which arise in relation to the objections raised by Caelli are:
"The Commission must grant an application for a ballot order if, and must not grant the application unless, it is satisfied that:
(a) during the bargaining period, the applicant genuinely tried to reach agreement with the employer of the relevant employees; and
(b) the applicant is genuinely trying to reach agreement with the employer; and
(c) the applicant is not engaged in pattern bargaining."
"(1) For the purposes of this Part, a course of conduct by a person is pattern bargaining if:
(a) the person is a negotiating party to 2 or more proposed collective agreements; and
(b) the course of conduct involves seeking common wages or conditions of employment for 2 or more of those proposed collective agreements; and
(c) the course of conduct extends beyond a single business.
(2) The course of conduct is not pattern bargaining to the extent that the negotiating party is seeking, for 2 or more of the proposed collective agreements, terms or conditions of employment determined by the Full Bench in a decision establishing national standards.
(3) The course of conduct, to the extent that it relates to a particular single business or part of a single business, is not pattern bargaining if the negotiating party is genuinely trying to reach an agreement for the business or part.
(4) For the purposes of subsection (3), factors relevant to working out whether the negotiating party is genuinely trying to reach an agreement for a single business or part of a single business include (but are not limited to) the following:
(a) demonstrating a preparedness to negotiate an agreement which takes into account the individual circumstances of the business or part;
(b) demonstrating a preparedness to negotiate a workplace agreement with a nominal expiry date which takes into account the individual circumstances of the business or part;
(c) negotiating in a manner consistent with wages and conditions of employment being determined as far as possible by agreement between the employer and its employees at the level of the single business or part;
(d) agreeing to meet face-to-face at reasonable times proposed by another negotiating party;
(e) considering and responding to proposals made by another negotiating party within a reasonable time;
(f) not capriciously adding or withdrawing items for bargaining.
(5) Whenever a person seeks to rely on subsection (3), the person has the burden of proving that subsection (3) applies.
(6) This section does not affect, and is not affected by, the meaning of the term 'genuinely trying to reach an agreement', or any variant of the term, as used elsewhere in this Act."
"The order must specify a postal ballot as the voting method unless:
(b) the Commission is satisfied that the other voting method is more efficient and expeditious than a postal ballot."
The statutory requirements of s.461(1) of the Act
[10] The first question for determination is whether the statutory considerations as to whether the Commission must or must not grant the application are met. Specifically whether:
[11] The question of genuine attempts by the CFMEU to reach agreement, during the bargaining period and currently, must be assessed against the evidence as to bargaining at the relevant times.
[12] As noted by Watson VP, in the context of prohibited content rather than pattern bargaining, in National Union of Workers v Blue Circle Transport Pty Ltd:
"As a matter of statutory construction, s.461(1)(b) involves a consideration of the state of affairs at the time the application is made and determined. Section 461(1)(a) involves a consideration of the same test but over a different time period. A similar formulation of the tests are contained in s430(2) of the Act and s170MW (2) prior to the 2005 amendments. The intent of the legislature appears to be to preclude a union from access to secret ballot and protected action provisions if it has not genuinely tried to reach an agreement before seeking to access those rights. I do not believe that the intention is to forever disbar a union from access to the provision if it transgresses at some point of time in the past and thereafter falls into line with the statutory requirements. In my view, it is possible to be satisfied that an applicant genuinely tried to reach agreement during the bargaining period even though, at some point in time, claims of prohibited content are made. It must be necessary, however, to be satisfied that for an important period of the bargaining period, the applicant genuinely tried to reach agreement by pursuing claims which did not include prohibited content. That will be a question of fact and possibly a matter of degree in any given case. A conclusion on that question is then considered in conjunction with a similar analysis of circumstances at the time the application is made in accordance with s461(1)(b)." [31]
[13] These considerations are relevant in the immediate circumstances, given an initial pursuit by the CFMEU of an agreement with Caelli in the terms of the 2008-2011 industry agreement but, following the non-acceptance of that outcome by Caelli, a later preparedness of the CFMEU to enter into negotiations directed at an agreement specific to Caelli and its employees.
[14] The bargaining period and discussions and negotiations for an agreement followed the reaching of the 2008-2011 industry agreement, which the CFMEU sought be agreed to by industry employers, with some evident success. The 2008-2011 industry agreement did entail common wages and conditions for those employers who were prepared to sign up to it. [32] Mr Spernovasilis' evidence, however, is that the desire of the CFMEU that employers enter into the 2008-2011 industry agreement does not mean the CFMEU will not negotiate an EBA with a company.[33]
[15] Initial informal discussions occurred in late 2008 and early 2009, during which CFMEU officials sought that Caelli commit to the 2008-2011 industry agreement. The discussions at that stage were informal exchanges between the Caelli brothers and various CFMEU officials in which the CFMEU officials pursued a sign up to the 2008-2011 industry agreement, although some variations were raised by Caelli and by the CFMEU (in relation to the blue glue system). No substantive discussions occurred on the agreement in general, nor the specific issues which were raised in passing. Caelli rejected the CFMEU position that it simply sign up to the 2008-2011 industry agreement.
[16] On 28 April 2009, detailed negotiations commenced on an agreement to apply to Caelli. The CFMEU position in the initial meeting on 28 April 2009 involved a claim for a two year agreement, manning arrangements for tower cranes, wage increases of 8% per annum, 20% superannuation, a claim in respect of overtime payments for concrete pours outside ordinary hours in inclement weather, a claim for all overtime to attract double time and a blue glue security allowance. [34] Some 2008-2011 matters were not raised.[35]
[17] Over the course of the meetings on and after 28 April 2009, the CFMEU modified its position on the term of the agreement, work/life balance, notice of dismissal or transfer of employee representatives, wage increases and superannuation with a preparedness to negotiate a lesser increase subject to the wages outcome agreed to.
[18] On the basis of the letters exchanged between the CFMEU and Caelli's legal representatives, the discussions on and after 28 April 2009 were directed, from Caelli's perspective, to deviations from the 2008-2011 industry agreement. Mr G Caelli held a strong view that the negotiations on and after 28 April 2009 were a farce, on the basis that he believed he could conclude those negotiations and sign up to the 2008-2011 industry agreement at a lesser rate. [36] The proposition that the CFMEU's involvement in bargaining on or after 28 April 2009 was a farce was not put to Mr Spernovasilis in cross-examination.
[19] In my view, the CFMEU approach may be explained by the reality, noted by a Full Bench in Heinemann Electric Pty Ltd, that "The nature of industrial negotiations is such that parties' positions and claims alter in the course of the negotiations. Claims may be added, deleted or changed and counter claims may be made in response to changing positions and circumstances". [37] The letters exchanged between the CFMEU and Caelli's legal representatives suggest that the CFMEU approached the later negotiations with a view to securing an agreement with Caelli arising out of its 12 August 2008 bargaining period. Given that approach to negotiations, it is hardly surprising that following the refusal of Caelli to enter into an agreement in the terms of the 2008-2011 industry agreement, the CFMEU commenced substantive negotiations with Caelli with demands in excess of the 2008-2011 industry agreement outcome. Having been rebuffed in relation to its desire that Caelli sign up to the 2008-2011 industry agreement, it would be industrially naive to imagine that the CFMEU would commence discussions for a Caelli specific agreement from a starting point of the 2008-2011 industry agreement outcome.
[20] In my view, Mr G Caelli's belief that the CFMEU was not genuinely seeking to reach an agreement during the post-April 2009 negotiations is not supported by the evidence.
[21] In the course of the negotiations since April 2009, the CFMEU has shown a preparedness to take into account the individual circumstances of Caelli, evident, for example, in its preparedness to accommodate the concerns of Caelli as to how RDOs operated in respect of its yard operations. [38] It has accepted the nominal expiry date proposed by Caelli.[39] It has negotiated wages and conditions focussed on Caelli. It has met face to face at reasonable times agreed between the parties and it has considered and responded in a timely manner to proposals from Caelli.[40] In my view, for the reasons expressed above, the claim made by the CFMEU at the commencement of the substantive negotiations was not advanced capriciously, nor has the CFMEU added or withdrawn claims capriciously over the course of those negotiations.
[22] I conclude that the CFMEU did for a significant period of time during the bargaining period press Caelli to sign up to the 2008-2011 industry agreement, an approach it no doubt hoped would result in agreement in those terms. However, in the absence of agreement by Caelli to this course, the CFMEU was prepared to and did enter into negotiations genuinely directed to securing agreement with Caelli as to an agreement to apply to its particular circumstances. This was commenced through the CFMEU's 5 December 2008 letter to Mr G Caelli, which referred to the notice of initiation of bargaining period and requested advice from Caelli of any circumstances particular to the enterprise which it could take into account as part of any discussions about proposed terms and conditions of employment and was evident in the negotiations which ultimately occurred in late April and early May 2009. I am satisfied that, during the bargaining period, the CFMEU genuinely tried to reach agreement with Caelli; and continues to genuinely trying to reach agreement with Caelli.
[23] The statutory test in s.421(1)(c) of the Act is not satisfaction that the CFMEU is engaged in pattern bargaining. Rather it is that the CFMEU is not engaged in pattern bargaining. Section 461(1)(c) of the Act is concerned with whether pattern bargaining, that extends to the employer in question, is continuing at the time the application for a protected action secret ballot order is considered by the Commission. [41] A person of whom it is alleged is engaging in pattern bargaining must be engaged in such a course of conduct (seeking common wages or conditions) against the employer (and at least one other employer) seeking two or more agreements at the time the application is heard by this Commission.[42]
[24] Caelli relied on the evidence of Ms Murdoch and the statement of Mr Cross to contend that the CFMEU was not genuinely bargaining in that it was in reality seeking, throughout the bargaining period, an agreement entirely in the terms of the 2008-2011 industry agreement. The evidence of Ms Murdoch was of a general nature in this regard, relying on the propositions that since May 2008 at least 220 building and construction industry employers were served with bargaining notices by the CFMEU, [43] that the MBAV has prepared and lodged 200 2008-2011 agreements between its members and the CFMEU in identical terms[44] and that throughout MBAV and CFMEU negotiations of 2008-2011 industry agreements, the CFMEU indicated it was not prepared to vary the terms of the "template" agreement to take into account the circumstances of particular employers.[45]
[25] That evidence was very general, without identification of the time within which these events occurred and, in particular, whether it continued at the time the application was being considered by the Commission. It did not identify any particular "other" employer, nor identify in relation to such an employer the pursuit, at the time the application was being considered, of common wages or conditions against the employer (and at least one other employer) in two or more prospective agreements. Given the Commission must be satisfied that the CFMEU is not engaged in pattern bargaining, this may not have mattered if the CFMEU had persisted in pursuing an agreement with Caelli in the terms of the 2008-2011 industry agreement at the time the application was being considered by the Commission, given the inferences which might be drawn from the evidence as to the general approach of the CFMEU in respect of the 2008-2011 industry agreement. However, the specific evidence in the case of the Caelli bargaining is that following an initial insistence on Caelli signing up to the 2008-2011 industry agreement, upon the refusal of Caelli to enter into an agreement in those terms, the CFMEU entered into negotiations directed to achieving an agreement in other terms. There is no evidence that an agreement with the same wages or conditions was sought from any other employer. I am satisfied that at the time over which the current application has been considered, the CFMEU was not engaged in pattern bargaining.
[26] I am satisfied as to each of the matters in s.421(1) of the Act. Nothing has been put to me which would satisfy me that granting the application would be inconsistent with the object of Division 4 of Part 9 of the Act [46] or that the applicant, or a relevant employee, has at any time contravened a provision of Division 4 of Part 9 or an order made, or direction given, under Division 4 of Part 9. In those circumstances, I must and will make a secret ballot order.
[27] Caelli argued that the questions proposed by the CFMEU, set out in paragraph 3 above, failed to adequately describe the industrial action of which authorisation was sought, having regard to the necessity of the employees balloted to clearly and readily understand the nature and implications of the action they would be asked to authorise.
[28] It was agreed that this test, reflected in the Full Bench decision in Re Country Fire Authority [47] is the appropriate basis for considering the adequacy of the questions posed, rather than the test in Davids Distribution Pty Ltd v National Union of Workers,[48] which is directed to sufficient specificity in the description of the industrial action, to allow an employer to plan for the industrial action, a situation which would arise in respect of the description of industrial action in a notice of industrial action.
[29] Caelli submitted that the questions posed, save for the question concerning an indefinite stoppage of the performance of work, were inadequate to allow employees to clearly and readily understand the nature and implications of the action in that they were of an indefinite duration because they did not specify the number and precise period of industrial action.
[30] The authorities relied upon by Caelli [49] were concerned with the proposition that the type and the duration of the prospective industrial action be particularised, rather than the frequency of taking of particular types of action of specified duration. In my view, each of the questions concerning bans does not adequately specify the duration of the bans and should, in any order made, be altered by replacing "Bans" with "An indefinite ban".
[31] In my view, each of the questions concerning stoppages of the performance of work for periods of 4, 12 and 24 hours should, in any order made, be amended to insert the words "an unlimited number of" immediately before the number of hours specified in each case. In that form, the questions are to the same effect as those considered by Simmonds C in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others and Skilled Group Limited. [50] It is not necessary, as suggested by Caelli, for the number and precise timing of such stoppages to be specified in order for the employees to understand the nature of the action. The number and timing of such stoppages, if any, would be determined having regard to the state of the continuing agreement negotiations.
[32] The questions, as amended above, would allow the employees balloted to clearly and readily understand the nature and implications of the action they would be asked to authorise.
[33] As may be seen from s.463(2) of the Act, reproduced in paragraph 9 above, there is a statutory presumption in favour of a postal ballot as the voting method, to be displaced only if the Commission is satisfied that an alternative voting method is more efficient and expeditious than a postal ballot.
[34] The CFMEU has applied for an attendance ballot. Caelli submitted that the CFMEU had not made out a case to dislodge the statutory preference for the conduct of a postal ballot.
[35] In seeking an attendance ballot, the CFMEU submitted that such a ballot would best meet the objects of Division 4 of Part 9 of the Act [51] and establish a transparent process which allows employees directly concerned to choose, by means of a fair and democratic secret ballot, whether to authorise industrial action in light of:
[37] On the evidence, Caelli has employees engaged on eight or nine major sites, together with small mobile crane and mobile pump crews, who would move from site to site. [56] Mr Spernovasilis' evidence is that five sites were within close proximity to Docklands and employees on those sites could be balloted at a single place.[57] There was a difference of view as to whether the mobile crane and mobile pump crews would fall within the scope of the proposed agreement, but there was no evidence which would assist in determining that difference of view.
[38] In all the circumstances, I am not satisfied that the CFMEU has made out a case to dislodge the statutory preference for the conduct of a postal ballot. In my view, the issue of language difficulties, whatever its precise extent and whether due to literacy skills or English language skills, would arise with either an attendance or postal ballot. In either case, employees requiring assistance could obtain necessary assistance. Equally, the effect of the Caelli flyer on the position of any employee in respect of a protected action ballot, to the extent that it implores employees to support a change to RDO arrangements in order to assist with the survival of the company, would be similar in respect of either form of ballot. I note that Caelli gave an undertaking [58] that in the event a postal ballot were ordered, it would refrain from distributing any further documents to its employees at their home addresses until the ballot was concluded. I would expect this undertaking to be given full effect. The determinative matter in my mind, given the efficiency and expedition criteria within s.463(2) of the Act, is the logistical problem of conducting attendance ballots across a range of sites on which the relevant employees work. Even if an attendance ballot could be conducted at a single place at a single time in respect of the five sites in the Docklands precinct, and mobile crane employees are not subject to the proposed ballot, the multiple sites would require either a larger than normal Australian Electoral Commission team or the conduct of the ballot by a smaller team over a number of days. In these circumstances, I am not satisfied that an attendance ballot is more efficient and expeditious than a postal ballot. Finally, I am satisfied that a postal ballot meets the objective of Division 4 of Part 9 of the Act of providing a means of a fair and democratic secret ballot.
[39] For the reasons given above, I am satisfied, having regard to s.461 of the Act, that I must make an order for a secret ballot. The order will be in the terms of that sought by the CFMEU save that the ballot will be a postal ballot and the questions to be posed will be:
"For the purpose of supporting or advancing claims in respect of the proposed union collective agreement with your employer, do you endorse the following types of industrial action being taken by CFMEU members:
• An unlimited number of stoppages of the performance of work for 4 hours;
• An unlimited number of stoppages of the performance of work for 12 hours;
• An unlimited number of stoppages of the performance of work for 24 hours;
• An indefinite stoppage of the performance of work;
• An indefinite ban on the despatching or loading of product;
• An indefinite ban on the performance utilising cranes;
• An indefinite ban on delivery of structural steel and/or steel components."
[40] The order which will be separately issued reflects a timetable based on advice from the Australian Electoral Commission.
E Walters for the Construction, Forestry, Mining and Energy Union.
C O'Grady, of counsel, for Caelli Constructions (Vic) Pty Ltd.
[2] The questions combine those contained in the application and those contained in the draft order attached to the application. The CFMEU sought leave, which was granted, to amend the draft order sought in these terms during the hearing of 26 May 2009.
[5] Exhibit Caelli 7, paras 5 and 14.
[6] Exhibit Caelli 3, attachment CG1.
[7] Exhibit Caelli 3, attachment GC1.
[8] Exhibit Caelli 7, para 16 and transcript at para 163 (an unspecified number).
[9] AG844456 58 Transcript at para 1324.
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Construction, Forestry, Mining and Energy Union
Caelli Constructions