Construction, Forestry, Maritime, Mining and Energy Union v Auriga Pilots Pty Ltd Summary

[2023] FWC 669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Auriga Pilots Pty Ltd

(B2023/251)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 MARCH 2023

Proposed protected action ballot of employees of Auriga Pilots Pty Ltd

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division (CFMMEU) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Auriga Pilots Pty Ltd (Respondent).

On 17 March 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of David Lyon of the Applicant declared on 16 March 2023, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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 PR760449.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division (CFMMEU) (Applicant) lodged an application with the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 (Cth) (Act) to conduct a protected action ballot for certain employees of Auriga Pilots Pty Ltd (Respondent). The ballot was proposed to ascertain whether employees wished to take industrial action. The Respondent did not oppose the application, prompting the FWC to determine the matter without a hearing based on the papers submitted.

The primary legal issue before the FWC was whether the statutory requirements under section 437 of the Fair Work Act were satisfied for the Applicant to proceed with the ballot. This involved verifying that the notification period had been met and that the CFMMEU had genuinely attempted to reach an agreement with the Respondent. The FWC also needed to consider if the prerequisites set out in section 443(1) of the Act had been fulfilled.

The FWC concluded that the statutory declaration of David Lyon from the CFMMEU, submitted on 16 March 2023, sufficiently demonstrated the union's efforts to negotiate with Auriga Pilots Pty Ltd. It was confirmed that the notification time required by the Act had elapsed, and the union's attempts to reach an agreement were genuine. As the statutory requirements were met, the FWC granted the application for the protected action ballot.

In light of the findings, the FWC issued an Order allowing the CFMMEU to conduct the protected action ballot. The decision was communicated in PR760449.

Construction, Forestry, Maritime, Mining and Energy Union v Auriga Pilots Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established