Construction, Forestry and Maritime Employees Union v Highland Pine Products Pty Ltd

[2024] FWC 3093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Highland Pine Products Pty Ltd

(B2024/1444)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 8 NOVEMBER 2024

Proposed protected action ballot of employees of Highland Pine Products 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 Highland Pine Products Pty Ltd (Highland Pine or Employer).

On 8 November 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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 Luke Hayden, NSW Senior Organiser, 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 Highland Pine, 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.

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 20 December 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 PR781071.

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 in 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, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) sought a protected action ballot order against Highland Pine Products Pty Ltd under section 437 of the Fair Work Act 2009. The application was made to the Fair Work Commission, with the Deputy President Wright presiding. The ballot aimed to ascertain the employees' consent to potential industrial action due to ongoing negotiations for a proposed enterprise agreement. Highland Pine did not oppose the application, leading the Commission to proceed without a hearing, relying on the materials submitted.

The legal issues involved determining whether the CFMEU had met the statutory requirements for a protected action ballot under section 443 of the Act. This included verifying that the union had genuinely attempted to reach an agreement with the employer and that the notification time for the proposed agreement was met. Additionally, the court had to establish the appropriate closing date for the voting period and ensure compliance with the statutory provisions governing the ballot and the subsequent conciliation process.

Deputy President Wright found that the CFMEU had genuinely tried to reach an agreement and had met all the requirements for a ballot under section 443 of the Act. The court determined that the voting period for the ballot would close on 20 December 2024, effectively 30 working days from the issuance of the order. The Australian Electoral Commission would conduct the ballot, and a compulsory conciliation conference would follow, overseen by another member of the Commission. This conference aimed to facilitate meaningful negotiations between the parties.

In conclusion, the Fair Work Commission granted the CFMEU's application for a protected action ballot order. The ballot would be conducted by the Australian Electoral Commission, closing on 20 December 2024. The Commission also scheduled a compulsory conciliation conference to be conducted by another member, with the goal of ensuring meaningful negotiations between the CFMEU and Highland Pine.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established