When negotiating a collective agreement, employers must ensure:
they provide a reasonable opportunity to employees to consider the terms of the proposed agreement, and
the time given to employees to consider the agreement is not compromised, affected or diminished by matters which may distract employees from considering the actual effect of the agreement.
Caelli Constructions (Caelli) performs construction work on commercial sites across Victoria and Queensland. Caelli and the CFMEU were bound by the Caelli Constructions(Vic) Pty Ltd t/as Caelli Constructions in the CFMEU Building and Construction Industry Enterprise Agreement 2005 - 2008 which had a nominal expiry date of 31 March 2008.
In late 2008, Caelli and the CFMEU entered into negotiations for a new collective agreement. Negotiations broke down, and the CFMEU successfully applied to the Australian Industrial Relations Commission to hold a secret ballot in relation to proposed types of industrial action that would, if approved, be taken by CFMEU members in support of the new agreement. The secret ballot was scheduled to take place between 12 June and 22 June 2009 with results to be published on 23 June.
On 10 June 2009, Caelli initiated steps to hold an employee vote on a proposed non-union collective agreement, to occur on 18 and 19 June. Documentation was circulated by Caelli to employees between 10 and 13 June 2009, which noted that both votes were being conducted. The documentation recommended that employees vote “no” to the CFMEU protected action ballot and “yes” to the non-union agreement.
In response, the CFMEU commenced interlocutory proceedings in the Federal Court to prevent the vote for the non-union agreement taking place prior to the completion of the secret ballot on protected industrial action.
The Court ordered Caelli to delay the employee vote on the non-union agreement until after the conclusion of the CFMEU’s secret ballot on 29 June 2009. In reaching this conclusion, the Court considered:
whether there was a serious question to be tried that as a result of the overlapping ballots, the employees would not be afforded a reasonable opportunity to decide whether they wanted to approve the agreement as required under s340(2) of the Workplace Relations Act 1996 (Cth). The Court noted that the consideration period provided by an employer may be affected or diminished by circumstances which have the potential to distract an employee from voting on the agreement and considering its effect. In this instance, the Court found there was a serious question to be tried that any reasonable opportunity given to employees to consider the agreement had been compromised due to the simultaneous operation of the ballots;
the balance of convenience between delaying the agreement vote until the secret ballot had been completed and allowing the votes to be conducted simultaneously. The Court concluded the inconvenience to Caelli in delaying the vote for a short time to allow the protected action ballot to occur was insignificant compared to the difficulty in assessing whether the running of two ballots together had compromised particular employees’ decision making process in relation to the agreement; and
Caelli’s failure to inform the Commission of its intention to hold a vote on the agreement concurrently with the secret ballot. The Court viewed Caelli’s “lack of candour” as the reason the current application was before the Court. In the Court’s view, Caelli had revealed its intentions to the Commission, the matter would have been “resolved expeditiously and appropriately by the Commission”.
Construction, Forestry, Mining and Energy Union v Caelli Constructions (Vic) Pty Ltd  FCA 655 (18 June 2009)
Who does this affect? All Australian employers
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