ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – two applications for protected action ballot orders in relation to certain employees – both applications heard together – whether unions have been, and are, genuinely trying to reach agreement with employer – employer objected on basis that unions not genuinely trying to reach agreement as refused to revise log of claims and pursuing non-permitted terms during bargaining – claimed that were previously genuinely trying to reach agreement but since 16 November 2016 have not – no dispute between parties otherwise – Commission satisfied on evidence in statutory declaration provided requirement for protected action ballot orders sought by unions met – whether unions have been, and are, genuinely trying to reach an agreement question of fact to be decided having regard to all of the facts and circumstances of the particular case [Esso Australia] – no specific stage must be reached in negotiations in order for there to be finding that unions are, and have been, genuinely trying to reach an agreement with employer [HJ Heinz Company Australia] – both sides put their bargaining positions to the other in November 2016 – significant gap between bargaining positions adopted by each party – Commission rejected employer’s contention unions not genuinely trying to reach agreement and protected action ballot order applications premature – evidence unions responded quickly to written communications with employer and requested counter offer to their log of claims – fact that unions did not comply with employer’s request to submit revised log of claims did not amount to not genuinely trying to reach agreement – employer claimed three out of nine claims made by unions about non-permitted matters – unions claim for incorporation of terms and conditions of Building Award – unions claim for casual employees to automatically become full-time after two weeks – unions claim for employees to be covered by Coverforce sickness, accident and top-up workers compensation insurance – employer did not identify any particular term or condition of Building Award which it contended was not about permitted matter, and second two claims found to pertain to relationship between employer and its employees – Commission found three claims not about non-permitted matters – even if contrary were to be found, Commission held unions would still be genuinely trying to reach agreement with employer as employer of employees who were to be balloted based on communications between parties – s.437 of FW Act satisfied – Commission must make protected action ballot order – orders issued. Australian Workers’ Union and Anor v Telum (QLD) P/L t/a Telum
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