Construction, Forestry and Maritime Employees Union v Louis Dreyfus Company Emerald Australia Pty Ltd

[2024] FWC 3292

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Louis Dreyfus Company Emerald Australia Pty Ltd

(B2024/1553)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 NOVEMBER 2024

Proposed protected action ballot of employees of Louis Dreyfus Company Emerald Australia 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 Louis Dreyfus Company Emerald Australia Pty Ltd (Louis Dreyfus or Employer).

On 27 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 Aarin Moon, Victorian Divisional Assistant Secretary, 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 Louis Dreyfus, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 19 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 PR781746.

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, 16 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Louis Dreyfus Company Emerald Australia Pty Ltd (Louis Dreyfus). The application was made to facilitate a ballot for protected industrial action due to ongoing disputes in bargaining for a proposed enterprise agreement. Louis Dreyfus did not object to the application, leading the Commission to decide on the matter based on the submitted documents without a hearing.

The primary legal issue before the Commission was whether the requirements for a protected action ballot under section 443 of the Fair Work Act were met. The CFMEU argued that it had genuinely tried to reach an agreement with Louis Dreyfus and that all procedural requirements for initiating the ballot had been fulfilled. The Commission needed to determine if the notification period was appropriately set and if the union had followed the necessary steps to seek approval for the ballot. Additionally, the Commission had to verify that the ballot agent, Democratic Outcomes Pty Ltd (CiVS), was eligible and authorised to conduct the ballot.

The Deputy President of the Commission found that the CFMEU had satisfied all the requirements for a protected action ballot. This conclusion was based on the declaration by Aarin Moon, Victorian Divisional Assistant Secretary, which outlined the union's efforts in bargaining and its genuine attempts to reach an agreement with Louis Dreyfus. The Commission determined the closing date for the voting period to be 19 December 2024, effectively setting the ballot period. Furthermore, the Commission approved the ballot agent and assigned the matter to another Member to conduct the compulsory conciliation conference as required by section 448A of the Act.

In summary, the Fair Work Commission granted the CFMEU's application for a protected action ballot order. The Commission set the closing date for voting as 19 December 2024 and assigned the matter for a compulsory conciliation conference to be conducted by another Member of the Commission. The order facilitates the ballot process and sets the stage for further negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established