Construction, Forestry, Maritime, Mining and Energy Union v Crown Melbourne Limited T/A Crown Casino Ltd

[2023] FWC 2775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v

Crown Melbourne Limited T/A Crown Casino Ltd.

(B2023/1143)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 OCTOBER 2023

Proposed protected action ballot of employees of Crown Melbourne Limited T/A Crown Casino Ltd.

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Crown Melbourne Limited T/A Crown Casino Ltd. (Crown Casino or Employer).

I observe that there are related applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU)[1] and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Plumbing Division (PPTEU)[2]. The applications relate to the same proposed enterprise agreement.
On 23 October 2023, the Commission was advised that Crown Casino did not, in effect, object to 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 declaration of Mr Nicholas Grealy, Legal and Industrial Admin Facilitator, setting out the steps taken by the CFMMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Crown Casino, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.[3]
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 8 November 2023.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR767533.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with the related matters. To the extent that this involves additional bargaining representatives, that Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2023/1041.

[2] B2023/1146.

[3] Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting[2023] FWC 1531.

[4] On 24 October 2023, the Commission emailed a draft Order to the parties, proposing to amend the date specified under Clauses 4 and 8.2.2. No objections were raised by either party.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to employees of Crown Melbourne Limited T/A Crown Casino Ltd. The application was made under section 437 of the Fair Work Act 2009 (Act) and involved the same proposed enterprise agreement as related applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Plumbing Division (PPTEU). The employer did not object to the application, allowing the matter to be determined on the papers without a hearing. The CFMMEU's declaration by Mr Nicholas Grealy, Legal and Industrial Admin Facilitator, established that the union had been genuinely attempting to reach agreement with the employer and that all requirements under section 443(1) of the Act had been fulfilled.

The key legal issue the FWC had to decide was whether the CFMMEU had met the conditions necessary for the approval of a protected action ballot order. This involved confirming the notification period for the proposed agreement and ensuring that the CFMMEU had genuinely been attempting to reach an agreement with the employer, as required by section 443(1) of the Act. Additionally, the FWC had to determine the closing date for the ballot to ensure compliance with section 443(3)(c) of the Act. Vero Engagement & Voting Solutions Pty Ltd (Vero Voting) was approved as the ballot agent under section 468A of the Act.

The FWC found that the CFMMEU had met all the requirements for a protected action ballot order, including the notification period and genuine bargaining efforts. Vero Voting was approved as the ballot agent and the voting period was set to close on 8 November 2023. The FWC also determined that the compulsory conciliation conference would be conducted in conjunction with the related matters and that all bargaining representatives would be required to attend. Directions would be issued to ensure meaningful negotiations at the conference.

The FWC issued an order approving the protected action ballot and setting the closing date for voting. The matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference. This decision ensures that the ballot process proceeds in accordance with the Act and facilitates further negotiations between the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established