Construction, Forestry, Maritime, Mining and Energy Union v Bedford Phoenix Incorporated T/A Adelaide Property and Gardens

[2021] FWC 6423

[2021] FWC 6423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v
Bedford Phoenix Incorporated T/A Adelaide Property and Gardens
(B2021/1128)

COMMISSIONER HAMPTON ADELAIDE, 25 NOVEMBER 2021

Proposed protected action ballot of employees of Bedford Phoenix Incorporated

[1] This Decision concerns an application lodged on 19 November 2021 by the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU or the Applicant) under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Bedford Phoenix Incorporated T/A Adelaide Property and Gardens (Bedford Phoenix or the Respondent).

[2] In the lead up to the hearing of this matter, Bedford Phoenix confirmed to the Commission and the CFMMEU that it did not object to the application; however, it raised concerns about the clarity of scope of the proposed ballot and sought a seven working day notice period in relation to any protected industrial action to be taken. The extended notice period was sought on the grounds of exceptional circumstances, noting that some of the employees of the organisation who would be covered by the proposed ballot are directly involved in supporting people with disabilities in employment and that additional notice was required to inform and consult with the families involved and to make alternative arrangements. The CFMMEU initially expressed opposition to the terms of the extended notice period sought.

[3] In light of the positions advanced by the parties, I canvassed each of the issues with them during the course of the hearing of this matter. Ultimately, the parties agreed to clarify the scope of the ballot and common ground on a form of extended notice was reached. This was subsequently confirmed in writing with the Commission, and I have had regard to the material supporting the application provided by the CFMMEU and the joint position of the parties in determining this application.

[4] On the basis of the material now before me, including the affidavit of Mr Kirner of the CFMMEU setting out the steps taken by the Applicant in bargaining with Bedford Phoenix and confirming 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.

[5] This includes my satisfaction that the CFMMEU has given notice in accordance with s.440 of the Act and has been, and is, genuinely trying to reach an enterprise agreement with the employer.

[6] Section 443(5) of the Act provides, in effect, that if there are exceptional circumstances justifying the period of written notice (referred to in s.414(2)(a)) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days in relation to the proposed industrial action that is the subject of the protected action ballot.

[7] I am satisfied that there are relevant exceptional circumstances and that 5 working days notice is appropriate in relation to certain forms of proposed industrial action that are to be subject to the ballot. The forms of action to which this will apply are set out in clause 8 of the Order. I also note that pursuant to s.414(2)(a) of the Act, any other industrial action to be taken as authorised by the ballot would require a minimum of 3 working days written notice. 1

[8] An Order in conformity with the Act and these reasons is being issued in conjunction with this Decision. 2

COMMISSIONER

Appearances:

D Malbasa and D Kirner for the Construction, Forestry, Maritime, Mining and Energy Union.

V Hinton for Bedford Phoenix Incorporated T/A Adelaide Property and Gardens.

Hearing details:

2021
24 November
By Video – Adelaide and Melbourne.

Printed by authority of the Commonwealth Government Printer

<PR736074>

 1   The term “working days” is defined in s.12 of the Act to be “a day that is not a Saturday, a Sunday or a public holiday” and the notice required under the Act is to be given by reference to “working days”.

 2   PR736068.