Construction, Forestry, Maritime, Mining and Energy Union v DMH Plant Services Pty Ltd Summary

[2022] FWC 3114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

DMH Plant Services Pty Ltd

(B2022/1752)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 NOVEMBER 2022

Proposed protected action ballot of employees of DMH Plant Services Pty Ltd

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union, Construction & General Division, Queensland Northern Territory Divisional Branch (CFMMEU) (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 DMH Plant Services Pty Ltd (Respondent).

On 22 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 Christopher Iain Brodsky of the Applicant declared on 22 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 PR748244.

VICE PRESIDENT

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CaseChat Overview and Summary

The Fair Work Commission (FWC) dealt with an application under section 437 of the Fair Work Act 2009 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) seeking a protected action ballot order for certain employees of DMH Plant Services Pty Ltd. The application was made on the basis that the union had been genuinely attempting to reach an agreement with the employer, which had not opposed the application. The matter was determined on the papers without a hearing due to the respondent's lack of opposition. The Vice President, Catanzariti, reviewed the evidence, including a statutory declaration by Christopher Iain Brodsky, confirming the union's efforts in bargaining and compliance with notification requirements under section 443(1) of the Act.

The primary legal issue before the FWC was whether the conditions for a protected action ballot were met, particularly if the union had genuinely been trying to reach an agreement with the employer and if the notification period had been appropriately observed. The FWC had to assess the union's efforts in bargaining and whether it had followed the statutory requirements to ensure the ballot could proceed. Given the respondent's non-opposition, the focus was on verifying the union's compliance with the Act's provisions and whether the statutory declaration and other materials presented were sufficient to meet the legal criteria.

The FWC concluded that the union had genuinely attempted to negotiate with the employer and had satisfied the notification requirements. The Vice President, Catanzariti, was satisfied with the evidence provided, including the declaration from Brodsky, which detailed the union's bargaining process and adherence to the Act's provisions. As a result, the application was approved, and an order was issued to allow the protected action ballot to proceed. The decision underscores the importance of the union's genuine efforts in bargaining and compliance with statutory notification periods in the context of protected action ballots under the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union v DMH Plant 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