Construction, Forestry, Maritime, Mining and Energy Union v Borcor Cabinets Pty Ltd

[2023] FWC 1037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Borcor Cabinets Pty Ltd

(B2023/391)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 MAY 2023

Proposed protected action ballot of employees of BorCor Cabinets 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 (Act) for a protected action ballot order in relation to certain employees of Borcor Cabinets Pty Ltd (Respondent).

While the Respondent maintained an objection to the proposed protected action ballot order being made, it did not outline a statutory basis that would support the rejection of the application and nor did it request to be heard in addition to the correspondence it had sent to my Chambers outlining its position.

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 Darren Connelly 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 PR761559.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of Borcor Cabinets Pty Ltd (the Respondent). The application was made under section 437 of the Fair Work Act 2009 and sought to authorise a ballot to determine if the employees would support protected industrial action. The Respondent did not contest the application on statutory grounds and did not request a hearing, limiting its response to written submissions.

The legal issues before the Deputy President were whether the requirements for a protected action ballot order under the Fair Work Act were satisfied, including whether the notification time had been met and whether the union had genuinely attempted to reach an agreement with the employer. The Applicant argued that it had met all necessary conditions and had genuinely engaged in bargaining, while the Respondent did not provide any counterarguments or request a hearing.

The Deputy President determined the matter on the papers, considering the declaration of Mr. Darren Connelly from the Applicant, which detailed the union's bargaining efforts and its genuine attempts to reach an agreement with the employer. The Deputy President found that the notification time had been met and that the Applicant had genuinely tried to reach an agreement with the Respondent, thus satisfying the requirements of section 443(1) of the Fair Work Act. Consequently, the Deputy President issued an order authorizing the protected action ballot.

The Fair Work Commission has granted the application for a protected action ballot order, allowing the union to proceed with the ballot to gauge employee support for protected industrial action. The order, separate from the primary case, was issued in PR761559, reflecting the Commission's decision to permit the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established