Construction, Forestry, Maritime, Mining and Energy Union v Co-operative Bulk Handling Limited Summary

[2022] FWC 2380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Co-operative Bulk Handling Limited

(B2022/1330)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 SEPTEMBER 2022

Proposed protected action ballot of employees of Co-operative Bulk Handling Limited

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 Co-operative Bulk Handling Limited (Respondent).

On 6 September 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 Jeff Cassar of the Applicant declared on 5 September 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 PR745588.

VICE PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (the Union) filed an application against Co-operative Bulk Handling Limited (the Employer) seeking an order to hold a protected action ballot under section 437 of the Fair Work Act 2009. The Union sought to conduct a ballot of the Employer's employees for protected action, presumably in relation to industrial action, due to an inability to reach an agreement during their bargaining process. The Employer did not oppose the Union's application. The Vice President of the Commission, Catanzariti, determined the matter on the papers without the need for a hearing.

The legal issues before the Commission were whether the Union had genuinely attempted to reach an agreement with the Employer and whether the statutory notification period for the proposed agreement had elapsed. The Union had to demonstrate that it had been genuinely attempting to negotiate an agreement with the Employer and that it had satisfied the requirements of section 443(1) of the Fair Work Act. These requirements include providing the necessary notification time for the proposed agreement and adhering to the Act's provisions.

The Vice President found that the Union had genuinely attempted to reach an agreement with the Employer and that the statutory notification period had passed. The Vice President relied on the statutory declaration of Jeff Cassar of the Union, which outlined the steps taken in bargaining with the Employer and confirmed that the Union had been genuinely trying to reach an agreement. The Vice President was satisfied that the Union met the requirements of section 443(1) of the Act. Consequently, the Vice President determined that the application should be granted.

An Order was issued in PR745588, permitting the Union to proceed with the protected action ballot of the Employer's employees. The exact nature of the industrial action remains undisclosed, but the Union can now take steps to organise and conduct the ballot as per the Fair Work Act's provisions.

Construction, Forestry, Maritime, Mining and Energy Union v Co-operative Bulk Handling Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established