Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v FMP Group Pty Limited

[2023] FWC 473

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

FMP Group Pty Limited

(B2023/167)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 FEBRUARY 2023

Proposed protected action ballot of employees of FMP Group Pty Limited.

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of FMP Group Pty Limited (Respondent).

The Respondent was given multiple opportunities to comment on the application but chose not to do so.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ms Chelsea Hill of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR751188.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) lodged an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of FMP Group Pty Limited (Respondent). The Applicant argued that it had been genuinely attempting to reach an agreement with the Respondent but had been unable to do so. The Respondent was given multiple opportunities to comment on the application but chose not to participate. Consequently, the Deputy President decided to determine the matter based on the available documentation.

The primary legal issue before the court was whether the Applicant had satisfied the requirements set out in section 443(1) of the Fair Work Act 2009, specifically concerning the notification time for the proposed agreement and the genuine efforts made by the Applicant to reach an agreement with the Respondent. The court was required to determine if the conditions for granting a protected action ballot order had been met.

The Deputy President found that the Applicant had indeed met the notification time requirements and had been genuinely trying to reach an agreement with the Respondent. The court accepted the declaration of Ms Chelsea Hill of the Applicant, which outlined the steps taken during the bargaining process and the Applicant's ongoing efforts to reach an agreement. As a result, the Deputy President concluded that the requirements for granting the protected action ballot order had been met.

Accordingly, an order was issued separately in PR751188, granting the Applicant permission to proceed with the proposed protected action ballot among the employees of FMP Group Pty Limited. The Respondent's failure to respond to the application played a significant role in the Deputy President's decision to determine the matter without holding a hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established