Construction, Forestry, Maritime, Mining and Energy Union (105N) v DMH Plant Services Pty Ltd Summary

[2022] FWC 2440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union (105N)
v

DMH Plant Services Pty Ltd

(B2022/1283)

COMMISSIONER SPENCER

BRISBANE, 13 SEPTEMBER 2022

Proposed protected action ballot of employees of DMH Plant Services Pty Ltd.

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of DMH Plant Services Pty Ltd (the Respondent).

On 1 September 2022, the Respondent’s lawyers advised that the Respondent objected to the proposed industrial action, on the basis that the Applicant was not entitled to represent the industrial interests of the relevant employees and, therefore, could not be a bargaining representative as required by s.437 of the Act.

On 2 September 2022, my Chambers issued Directions for the filing of submissions and set a tentative date for hearing on 16 September 2022. On 12 September 2022, the Respondent’s lawyers advised that the Respondent no longer pressed its objection to the Application. The parties were given an opportunity to provide any further material. No further material was provided.

In the circumstances, and as agreed in the response by the Applicant, the matter is determined on the papers without holding a hearing.

The declaration of Mr Christopher Ian Brodsky, Organiser of the Applicant, sets out the steps taken by the Union in bargaining with the Respondent. It was submitted that the Applicant has been, and is, genuinely trying to reach agreement with the Respondent. On the basis of the material before me, 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 PR745788.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) seeking a protected action ballot order under section 437 of the Fair Work Act 2009 in relation to employees of DMH Plant Services Pty Ltd (Respondent). The Applicant sought to conduct a ballot of its members employed by the Respondent, in order to determine whether they would support industrial action. The Respondent initially objected to the application on the basis that the Applicant was not entitled to represent the industrial interests of the employees and therefore could not be a bargaining representative under the Act. However, the Respondent later withdrew its objection, and the matter proceeded on the basis of the written submissions of the parties.

The legal issues for determination by the Commission included whether the Applicant was a bargaining representative as required by section 437 of the Act, and whether the requirements for a protected action ballot under the Fair Work Act had been satisfied. The Commission had to consider the evidence provided by the Applicant in support of its claim that it had been genuinely attempting to reach agreement with the Respondent, and whether the notification period for the proposed agreement had been met in accordance with section 443(1) of the Act.

In delivering the decision, the Commission found that the Applicant had satisfied the requirements for a protected action ballot under the Fair Work Act. The Commission was satisfied that the Applicant had been genuinely trying to reach agreement with the Respondent and that the notification period for the proposed agreement had been met. The Respondent’s objection to the Application was therefore withdrawn, and the matter was determined on the basis of the written submissions of the parties. An order was made in favour of the Applicant, granting the protected action ballot order sought.

This decision provides guidance for employers and unions on the process for protected action ballots under the Fair Work Act. It highlights the importance of ensuring that bargaining representatives are entitled to represent the employees in question, and that the notification period for proposed agreements has been met. Employers and unions should also be aware of the potential consequences of objecting to a ballot application, as the Respondent’s objection in this case ultimately had no bearing on the outcome.

Construction, Forestry, Maritime, Mining and Energy Union (105N) v DMH Plant Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established