Construction, Forestry, Maritime, Mining and Energy Union v DOF Management Australia Pty Ltd Summary

[2023] FWC 73

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

DOF Management Australia Pty Ltd

(B2023/16)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 JANUARY 2023

Proposed protected action ballot of employees of DOF Management Australia 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 DOF Management Australia Pty Ltd (Respondent).

On 11 January 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 George Gakis of the Applicant declared on 7 January 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 PR749564.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought a protected action ballot order under section 437 of the Fair Work Act 2009 (Cth) against DOF Management Australia Pty Ltd. The CFMEU aimed to conduct a ballot for its members employed by DOF Management to take protected action in relation to their employment. The application was made to the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act. The Commission was informed that DOF Management did not oppose the application. Consequently, Vice President Catanzariti decided to determine the matter on the papers without holding a hearing.

The legal issues the Court had to decide were whether the statutory requirements for a protected action ballot under section 437 of the Fair Work Act were met. Specifically, the Court needed to determine if there was a notification time in relation to the proposed agreement and whether the requirements of section 443(1) of the Act were satisfied. The Court had to examine the evidence provided by the CFMEU, including the statutory declaration of George Gakis, to ascertain if the union had genuinely attempted to reach an agreement with DOF Management.

The Court found that the statutory declaration provided by the CFMEU demonstrated that it had been genuinely attempting to reach an agreement with DOF Management. The Court was satisfied that there was a notification time in relation to the proposed agreement, and the requirements of section 443(1) of the Act were met. Based on the evidence, Vice President Catanzariti concluded that the CFMEU had fulfilled the necessary criteria to proceed with the protected action ballot. The Court determined the matter on the papers without holding a hearing, and an Order was issued in PR749564.

In summary, the Fair Work Commission granted the CFMEU's application for a protected action ballot order against DOF Management Australia Pty Ltd. The Court found that the union had genuinely attempted to reach an agreement with the employer and that the statutory requirements for a ballot under the Fair Work Act were met. The decision was made on the papers without holding a hearing, and an Order was issued accordingly.

Construction, Forestry, Maritime, Mining and Energy Union v DOF Management Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established