Construction, Forestry, Maritime, Mining and Energy Union v CH4 Drilling Pty Ltd Summary

[2023] FWC 1069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

CH4 Drilling Pty Ltd

(B2023/404)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 MAY 2023

Proposed protected action ballot of employees of CH4 Drilling 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 CH4 Drilling Pty Ltd (Respondent).

On 5 May 2023, 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 Robert (Bob) Timbs of the Applicant declared on 9 May 2023, 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 PR761670.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an application with the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009, requesting a protected action ballot for certain employees of CH4 Drilling Pty Ltd. The application was made due to the union's ongoing negotiations with the company, which had not resulted in an agreement. Notably, CH4 Drilling Pty Ltd did not oppose the application, prompting the FWC to decide on the matter based on the submitted documents rather than holding a hearing. The union's application was supported by a statutory declaration from Robert (Bob) Timbs, affirming the union's efforts to reach a mutually acceptable agreement with the company and meeting the notification time requirements as stipulated in section 443(1) of the Act.

The primary legal issue before the FWC was whether the union had fulfilled the necessary conditions to hold a protected action ballot. This included verifying if the union had genuinely attempted to negotiate with the company and if the notification period was correctly observed. The FWC needed to determine if the union had met these prerequisites to proceed with the ballot, as outlined in the Fair Work Act. The union's application and the declaration by Robert (Bob) Timbs played a crucial role in substantiating these claims.

In reaching its decision, the FWC considered the statutory declaration from Robert (Bob) Timbs, which detailed the union's efforts in bargaining with CH4 Drilling Pty Ltd. The FWC concluded that the union had genuinely attempted to reach an agreement and had met the notification requirements set forth in the Act. Consequently, the FWC determined that the union had satisfied the necessary conditions to proceed with the protected action ballot. The FWC's decision was based on the information presented, and an order was issued accordingly.

The final order permitted the CFMMEU to proceed with the protected action ballot for the employees of CH4 Drilling Pty Ltd, as the union had met the statutory requirements. The FWC's decision was communicated through a separate order issued in PR761670. This ruling underscores the importance of the union's adherence to the legal framework in pursuing its objectives and the FWC's role in ensuring compliance with the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union v CH4 Drilling Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established