Construction, Forestry, Maritime, Mining and Energy Union v Bhagwan Marine Pty Ltd Summary

[2022] FWC 2862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Bhagwan Marine Pty Ltd

(B2022/1594)

VICE PRESIDENT CATANZARITI

BRISBANE, 25 OCTOBER 2022

Proposed protected action ballot of employees of Bhagwan Marine 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 Bhagwan Marine Pty Ltd (Respondent).

On 24 October 2022, 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 Joel O’Brien of the Applicant declared on 20 October 2022, 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 PR747182.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Construction, Forestry, Maritime, Mining and Energy Union (the applicant) for an order permitting a ballot of employees of Bhagwan Marine Pty Ltd (the respondent). The application was made under section 437 of the Fair Work Act 2009 (Cth), which allows for such an order when the applicant has been genuinely trying to reach an agreement with the employer and the requirements of section 443(1) of the Act have been met. The respondent did not oppose the application, and the matter was determined on the papers without a hearing.

The central legal issue for the Commission to decide was whether the applicant had satisfied the requirements of section 443(1) of the Act and thus was eligible for a protected action ballot order. This involved assessing whether the applicant had been genuinely trying to reach an agreement with the employer and whether there was a notification time in relation to the proposed agreement. The Commission had to consider the statutory declaration provided by Joel O'Brien of the applicant, which outlined the steps taken in bargaining with the respondent and confirmed that the applicant had been genuinely attempting to reach an agreement.

In reaching its decision, the Commission relied on the statutory declaration provided by Joel O’Brien, which detailed the applicant’s efforts in bargaining with the respondent. The Commission was satisfied that the applicant had been genuinely trying to reach an agreement with the respondent and that there was a notification time in relation to the proposed agreement. As the requirements of section 443(1) of the Act were met, the Commission determined that the applicant was eligible for a protected action ballot order.

The Fair Work Commission issued an Order permitting the applicant to conduct a ballot of the employees of Bhagwan Marine Pty Ltd. This decision ensures that the applicant can proceed with the proposed industrial action in accordance with the provisions of the Fair Work Act 2009 (Cth).

Construction, Forestry, Maritime, Mining and Energy Union v Bhagwan Marine Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established