Construction, Forestry and Maritime Employees Union v Summary

[2024] FWC 1043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Australian Defence Apparel Pty Ltd

(B2024/459)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 APRIL 2024

Proposed protected action ballot of employees of Australian Defence Apparel Pty Ltd

This is an application by the Construction, Forestry and Maritime Employees’ Union (CFMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Australian Defence Apparel Pty Ltd (Australian Defence Apparel or Employer).

On 19 April 2024, the Commission was advised that the Employer did not object to the Application as amended by the CFMEU.

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 Jenny Kruschel, TCF National Secretary of the CFMEU Manufacturing Division, setting out the steps taken by the CFMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Australian Defence Apparel, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission (AEC).

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 4 June 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR773776.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, thirty (30) working days from the date of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry and Maritime Employees Union v Australian Defence Apparel Pty Ltd, the Fair Work Commission was asked to decide on an application made by the Construction, Forestry and Maritime Employees' Union (CFMEU) for a protected action ballot order concerning certain employees of Australian Defence Apparel Pty Ltd. The application was filed under section 437 of the Fair Work Act 2009 and aimed to initiate a ballot for protected action among the employees. The Australian Defence Apparel Pty Ltd did not object to the application, leading the Deputy President Hampton to determine the matter based on the submitted documents without a hearing.

The primary legal issue the court had to resolve was whether all the statutory requirements for granting a protected action ballot order were met, as stipulated in section 443(1) of the Fair Work Act 2009. The CFMEU argued that it had genuinely attempted to reach an agreement with the employer and that a notification period for the proposed agreement existed. The court had to verify if the union's assertions were supported by the evidence, including the declaration by Jenny Kruschel, the TCF National Secretary of the CFMEU Manufacturing Division, which detailed the union's bargaining efforts.

After reviewing the provided materials, the Deputy President Hampton concluded that the CFMEU had genuinely endeavoured to reach an agreement with the employer and that a notification period existed. Therefore, the court was satisfied that all the conditions under section 443(1) of the Act were fulfilled. Consequently, the court issued an order granting the ballot order, specifying that the Australian Electoral Commission would conduct the ballot, with voting to close on 4 June 2024. This decision established the ballot period for the purposes of section 448A(2) of the Act. The matter will subsequently proceed to a compulsory conciliation conference, where another member of the Commission will ensure meaningful negotiations between the parties.

Construction, Forestry and Maritime Employees Union v

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established