Construction, Forestry, Maritime, Mining and Energy Union v Bedford Phoenix Incorporated T/A Bedford Group

[2022] FWC 767

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 Bedford Group

(B2022/272)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 APRIL 2022

Proposed protected action ballot of employees of Bedford Phoenix Incorporated T/A Bedford Group.

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 Bedford Phoenix Incorporated T/A Bedford Group (the Respondent).

On 6 April 2022, my Associate was advised that the Respondent 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 David Kirner of the Applicant 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 PR740071.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

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 employees of Bedford Phoenix Incorporated T/A Bedford Group. The union sought the order to facilitate a ballot of its members on proposed protected action. On 6 April 2022, the respondent, Bedford Phoenix Incorporated, did not object to the application, leading the Deputy President to determine the matter without a hearing. The union had submitted a declaration from David Kirner, affirming the union's efforts to reach an agreement with the respondent and confirming compliance with the notification period and statutory requirements under section 443(1) of the Act.

The legal issues the court needed to address were whether there was a notification period for the proposed agreement, and whether the requirements of section 443(1) of the Act had been satisfied. The union argued that it had genuinely attempted to negotiate with the respondent and met the necessary conditions for a protected action ballot. The respondent did not contest the union's application, implying agreement with the union's assertions. The Deputy President's task was to confirm these points based on the material presented.

The Deputy President reviewed the evidence, including the union's declaration, and was satisfied that the union had genuinely attempted to reach an agreement with the respondent and that all statutory requirements were met. Given the absence of objections from the respondent, the Deputy President determined the application on the papers. The union's declaration, along with the lack of objection from the respondent, sufficiently established that the notification period was observed and the conditions for the ballot order were fulfilled. Consequently, the Deputy President issued the order as requested by the union.

The final order granted the union's application for a protected action ballot, permitting the union to proceed with the ballot among its members. The order was issued without a hearing, reflecting the respondent's non-objection and the union's compliance with the statutory conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established