ENTERPRISE BARGAINING – protected action ballot – ss.437, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission was not satisfied that appellant had been genuinely trying to reach agreement with respondent and dismissed application – public interest considerations identified in GlaxoSmithKline – Peko-Wallsen considered regarding exercise of a discretion as appealable error and failure by decision maker to take into account relevant consideration – appellant submitted Commission erred in concluding that jurisdictional prerequisite in s.443(1)(b) of FW Act had not been met and Commission had regard to tactics or approach adopted by appellant rather than its motivation, object or purpose – further submitted that history of negotiations was not given appropriate weight – respondent submitted that Commission had broad discretion conferred by FW Act and that the appellant’s submission relied on second limb in House v The King – Full Bench held the test for error of that kind is high and relies on Order being unjust or unreasonable – satisfied that Commission did not take into account tone of correspondence between parties as negative factor in final determination – consideration was part of overall context and not determinative of application – satisfied that Commission considered extensive bargaining which had taken place between parties – not persuaded that Commission’s failure to make particular findings about each matter that was alleged to be non-permissible is an error – existence of claims for non-permitted matters does not support finding that organisation was not genuinely trying to reach agreement – satisfied that it was management of claim for non-permitted matters and its late removal from bargaining table just prior to hearing which was focus of Commission’s consideration – was a matter that Commission was properly able to take into account in reaching the conclusion about whether appellant was genuinely trying to reach agreement – two other matters relied upon by Commission insupport of conclusion that PABO should not issue were appropriate matters to have been considered in exercise of broad discretion as both issues were capable of going to issue of genuineness – satisfied that action against unrelated entities was factor properly available for consideration – appointment of six new bargaining agents was unexpected development – open to Commission to find that this action disrupted the bargaining – held Commission’s discretion was not exercised wrongly – held Commission’s decision was not manifestly unjust or unreasonable – permission to appeal granted – appeal dismissed for forgoing reasons. Appeal by Construction, Forestry, Mining and Energy Union – Mining and Energy Division against decision and order of Clancy DP of 1 July 2016 [[2016] FWC 4364 ], [PR582301] Re: AGL Loy Yang P/L t/a AGL Loy Yang
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