ENTERPRISE BARGAINING – protected action ballot – ss.437, 443 Fair Work Act 2009 – in October 2016 respondent issued notice of employee representational rights to its employees to negotiate replacement of current agreement – applicant presented its log of claims in November 2016 – three negotiation meetings had taken place up to 2 December 2016 – respondent sought cuts in wages and entitlements as result of economic downturn – applicant accepted some cuts to wages, but did not agree to full reduction proposed by respondent – agreement went to vote on 13 December 2016 and was rejected – respondent subsequently made application to terminate current agreement – as a result of that application, applicant lodged application for a protected action ballot order (PABO) – respondent opposed application on basis that applicant has not been genuinely trying to reach agreement – respondent argued that applicant failed to acknowledge the respondent’s position and the critical nature of the reduction required in order to remain competitive – Commission considered s.443(1) and s.443(2) – onus is on applicant to prove that it has been ‘genuinely trying’ to reach agreement – a finding that an applicant has not genuinely trying to reach agreement will necessarily involve accepting evidence that the applicant had some other, extraneous purpose [JJ Richards & Sons] – satisfied that applicant’s intention is to reach agreement with respondent based on fact that meetings have been held, claims have been put to the respondent and concessions have been made by applicant – concluded that parties have simply come to a stalemate in negotiations, and the fact that the applicant has not agreed to the reduction in wages and entitlements to the level the respondent believes is necessary does not mean that they are not genuinely trying to reach agreement – Commission satisfied applicant has been, and is, genuinely trying to reach agreement – application granted. Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Konecranes P/L
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