Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v SRG Global Integrated Services Pty Ltd

[2023] FWC 2273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)
v

SRG Global Integrated Services Pty Ltd

(B2023/950)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 SEPTEMBER 2023

Proposed protected action ballot of employees of SRG Global Integrated Services Pty Ltd

This is an application by the Construction, Forestry, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of SRG Global Integrated Services Pty Ltd (SRG or Employer).

On 6 September 2023, the Commission was advised that SRG, 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 Mr Bradley Upton, CFMMEU Assistant State Secretary, setting out the steps taken by the CFMMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with SRG, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] 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 25 September 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR765943.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This is thirteen (13) working days from the date of the Order and, in effect, reflects the period sought in the application – 10 working days from the commencement of the period cited in clause 8.2.1 as originally drafted,

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning specific employees of SRG Global Integrated Services Pty Ltd. The application was made to facilitate a ballot in relation to proposed protected actions. SRG did not object to the application, allowing the Commission to decide the matter based on the documentation submitted.

The central legal issue before the Deputy President was whether the requirements under section 443(1) of the Act had been satisfied, particularly with respect to the notification time for the proposed agreement and the union's genuine efforts to reach an agreement with SRG. The Deputy President reviewed the declaration of Mr. Bradley Upton, CFMMEU Assistant State Secretary, which outlined the union's bargaining efforts and their attempts to reach an agreement with the employer. The declaration included detailed steps taken in the bargaining process and the union's ongoing efforts to negotiate.

After examining the evidence, the Deputy President concluded that all requirements under section 443(1) of the Act had indeed been met. The union had sufficiently demonstrated its genuine attempts to negotiate with the employer and that a notification period was applicable. Consequently, the Deputy President granted the application, allowing the ballot to proceed. The ballot was to be conducted by Democratic Outcomes Pty Ltd T/A CiVS, which had been approved as an eligible ballot agent. The voting period was set to close on 25 September 2023, establishing the ballot period for the purposes of section 448A(2) of the Act.

In addition to granting the ballot order, the Deputy President determined that the matter would be assigned to another Commission member to conduct the compulsory conciliation conference under section 448A. This member would also issue the order requiring the parties to attend the conference, and directions would likely be issued to ensure meaningful negotiations took place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established