INDUSTRIAL ACTION – order against industrial action – pattern bargaining – ss.412, 418 Fair Work Act 2009 – application for order to stop industrial action – CFMMEU sought to replace Boom’s three expired agreements – draft agreements based on CFMMEU’s template agreement for the mobile crane sector – Boom indicated it would be ‘economically disastrous’ for it to agree to the template agreement – protected action ballot order (PABO) granted – CFMMEU gave notice it would take industrial action – Boom submitted the proposed industrial action was not protected due to CFMMEU engaging in pattern bargaining – whether CFMMEU undertook a ‘course of conduct’ which involved ‘seeking common terms’ to be included in 2 or more agreements – Boom submitted that CFMMEU was negotiating a similar agreement with WGC Crane Group P/L (WGC) around the same time – Commission rejected CFMMEU’s contention that a ‘course of conduct’ requires two or more employers in negotiations for an agreement with a bargaining representative at the same meeting – Commission satisfied CFMMEU was engaging in pattern bargaining – CFMMEU was engaged in course of conduct which involved seeking common terms to be included in the proposed agreements of Boom and WGC – whether CFMMEU genuinely trying to reach agreement – found only two meetings have occurred between the parties – found that CFMMEU had not responded to offer made by Boom – no evidence demonstrating CFMMEU’s preparedness to take into account the site specific circumstances of Boom – not satisfied CFMMEU was genuinely trying to reach agreement, consistent with decision in WGC’s case [[2018] FWC 5101] – order to be issued that the intended industrial action will not be protected industrial action. Boom Logistics Limited v Construction, Forestry, Maritime, Mining and Energy Union
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