Construction, Forestry, Maritime, Mining and Energy Union v Australian Offshore Solutions Pty Ltd

[2023] FWC 231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Australian Offshore Solutions Pty Ltd

(B2023/38)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 JANUARY 2023

Proposed protected action ballot of employees of Australian Offshore Solutions 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Australian Offshore Solutions Pty Ltd (Respondent).

On 24 January 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 George Gakis of the Applicant declared on 18 January 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 PR749992.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to determine whether Australian Offshore Solutions Pty Ltd (AOSL) had contravened the Fair Work Act by proposing to take protected action without first seeking to resolve a dispute with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The CFMEU claimed that AOSL had failed to provide the requisite 7-days' notice of a proposed protected action ballot of its employees, and that the ballot was unreasonable and vexatious. AOSL argued that the protected action was not unreasonable or vexatious, and that it had acted in good faith.

The FWC found that AOSL had contravened the Act by proposing to take protected action without first seeking to resolve the dispute with the CFMEU. The Commission found that AOSL had failed to provide the requisite 7-days' notice of the proposed ballot, and that the ballot was unreasonable and vexatious. The Commission noted that AOSL had failed to engage in good faith negotiations with the CFMEU, and had instead unilaterally imposed its proposed terms on its employees. The Commission found that AOSL's conduct was unreasonable and vexatious, and that it had contravened the Act.

The FWC ordered AOSL to take all reasonable steps to remedy the contravention of the Act, including by providing the requisite 7-days' notice of any future proposed protected action ballot, and by engaging in good faith negotiations with the CFMEU. The Commission also ordered AOSL to pay the CFMEU's costs of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established