FWA orders secret ballot, but removes OHS questions

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FWA orders secret ballot, but removes OHS questions

The CFMEU has won the right to a secret ballot for industrial action despite the protests of the company involved; however, FWA removed two questions from the ballot that would have seen OHS issues become part of the bans on the company.

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The CFMEU has won the right to a secret ballot for industrial action despite the protests of the company involved; however, FWA removed two questions from the ballot that would have seen OHS issues become part of the bans on the company.
 
Senior Deputy President Matthew O’Callaghan said the attempt to put bans on inductions and Job Safety Analyses (JSAs) had ‘the potential to cause occupational health and safety concerns and confusion’. 
 
Industrial action inappropriate
 
‘Whilst it is clear that the CFMEU sought approval for these actions as an industrial device rather than as a means of undermining occupational health and safety, I consider that industrial action which has the real or perceived effect of undermining shared workplace safety obligations is entirely inappropriate,’ he said.
 
The CFMEU made the application for a protected action ballot order for its members at Baulderstone.
 
SDP O’Callaghan said the parties commenced serious discussions on a replacement agreement in early August 2009.
 
In September, and again in October, the CFMEU put a draft agreement to Baulderstone for consideration. Baulderstone had subsequently put a draft proposal of its own to the CFMEU and to its employees for consideration.
 
Negotiations difficult and contentious
 
‘Numerous meetings on disagreed issues have occurred and the negotiation process has been difficult and contentious,’ SDP O’Callaghan said.
 
In attempting to block the ballot, Baulderstone argued that the CFMEU made claims on 16 December 2009, which claims exceeded the initial claims put to the employer in September and October 2009 such that the CFMEU could not now be described as genuinely trying to reach agreement.
 
Baulderstone also asserted that a provision claimed on 16 December 2009 for supplementary labour hire could not be included in an agreement and, hence, the CFMEU was not genuinely trying to reach an agreement.
 
Notes on draft agreement
 
As part of its claims that the union had increased its claims, at the 16 December meeting Baulderstone referred to notes made on a copy of the company’s draft agreement by a CFMEU official at the meeting.
 
These notations were subsequently provided to Baulderstone as an aid in the development of the employer response.
 
SDP O’Callaghan said that in general terms he had taken the notes to be indicative of the official’s negotiating position.
 
‘I have not taken these notes to be necessarily definitive of the final CFMEU position,’ he said.
 
Robust negotiations
 
‘It appears to me that these notes were made in the context of a robust negotiating session where the CFMEU was seeking the best possible arrangement for its members and where it anticipated that Baulderstone would reject a number of its proposals in whole or in part, through negotiations which provided for flexible outcomes.’
 
‘In overall terms, the major claims substantially reflect the CFMEU agreement proposal and the difficulties the parties are having in reaching an agreement.’
 
‘These difficulties do not represent the basis for a conclusion that the CFMEU is not, and has not been, genuinely trying to reach an agreement. They simply reflect the fact that the parties have both maintained strong negotiating positions.’
 
Position not changed
 
‘Consequently, I do not consider that the position adopted by the CFMEU at the 16 December 2009 meeting, or subsequent to that meeting, through [the] handwritten notes, represented a changed position on the part of the CFMEU which indicates that it is not genuinely trying to reach an agreement.’
 
The supplementary labour-hire clause the union wanted included in the agreement stated that such employees would be paid less than Baulderstone employees if the contractor didn’t have an FWA approved agreement or a transitional agreement.
 
Clause of dubious effect
 
SDP O’Callaghan said this was ‘of dubious effect and value in so far as it may seek to impose obligations on an employer who is party to this agreement’.
 
After removing the two OHS questions he made an order for the ballot.
 
 
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