Construction, Forestry, Maritime, Mining and Energy Union v BITS Ferry Services Pty Ltd Summary

[2022] FWC 3150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

BITS Ferry Services Pty Ltd

(B2022/1764)

VICE PRESIDENT CATANZARITI

MELBOURNE, 28 NOVEMBER 2022

Proposed protected action ballot of employees of BITS Ferry Services 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 BITS Ferry Services Pty Ltd (Respondent).

On 25 November 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 Paul Gallagher of the Applicant declared on 24 November 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 PR748369.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought a protected action ballot order from the Fair Work Commission (FWC) against BITS Ferry Services Pty Ltd (BITS) under section 437 of the Fair Work Act 2009 (Cth). The CFMEU, representing certain employees of BITS, sought permission to conduct a ballot of its members to determine if they would support protected action, such as industrial action or a strike, in a dispute with BITS over a proposed agreement. BITS did not oppose the application, leading the FWC to decide the matter on the papers without a hearing. The FWC found that the CFMEU had been genuinely trying to reach an agreement with BITS, and that the statutory notification period had been met, satisfying the requirements under section 443(1) of the Act.

The legal issues before the FWC were whether the CFMEU had genuinely been attempting to reach an agreement with BITS and whether the statutory notification period for a protected action ballot had been met. The CFMEU's application was made under section 437 of the Fair Work Act, which requires the FWC to be satisfied that the union has been genuinely attempting to reach an agreement with the employer and that the notification period has been met. The CFMEU needed to demonstrate these two elements for the FWC to grant the application for a protected action ballot order.

The FWC determined that the CFMEU had genuinely been attempting to reach an agreement with BITS, based on the material before it, including a statutory declaration from Paul Gallagher of the CFMEU. The declaration outlined the steps taken by the CFMEU in bargaining with BITS, demonstrating that the union had been actively engaged in negotiations. The FWC was also satisfied that the statutory notification period had been met, as required by section 443(1) of the Fair Work Act. Given these findings, the FWC concluded that the requirements for granting the protected action ballot order had been met.

The FWC issued an order permitting the CFMEU to conduct a ballot of its members employed by BITS, to determine if they would support protected action. The order was issued in accordance with section 437 of the Fair Work Act, and the FWC's decision was based on the material provided and the evidence of the union's genuine attempts to reach an agreement with BITS. The outcome of the ballot, once conducted, will determine the next steps in the dispute between the CFMEU and BITS over the proposed agreement.

Construction, Forestry, Maritime, Mining and Energy Union v BITS Ferry Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established