Construction, Forestry, Maritime, Mining and Energy Union v EnergyAustralia NSW Pty Ltd

[2023] FWC 589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

EnergyAustralia NSW Pty Ltd

(B2023/222)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 MARCH 2023

Proposed protected action ballot of employees of EnergyAustralia NSW 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 EnergyAustralia NSW Pty Ltd (Respondent).

On 10 March 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 Matthew Howard of the Applicant declared on 9 March 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 PR760217.

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 under section 437 of the Fair Work Act 2009 with the Fair Work Commission, seeking permission to conduct a protected action ballot among certain employees of EnergyAustralia NSW Pty Ltd. The application was made in the context of ongoing negotiations between the union and the respondent regarding an enterprise agreement. The Fair Work Commission received information that EnergyAustralia did not oppose the application, prompting the Commission to decide on the matter without a hearing.

The primary legal issue before the Commission was whether the CFMMEU had satisfied the statutory requirements for a protected action ballot. Specifically, the Commission needed to determine if there was a notification period in relation to the proposed agreement and if the union had genuinely attempted to reach an agreement with the respondent. These determinations were crucial under section 443(1) of the Fair Work Act.

The Fair Work Commission concluded that the union had fulfilled the necessary criteria for a protected action ballot. The Commission was satisfied that there was a notification period for the proposed agreement and that the union had been genuinely trying to reach an agreement with EnergyAustralia. The Commission based its decision on the material presented, including a statutory declaration by Matthew Howard of the CFMMEU, which outlined the union's bargaining efforts and its genuine attempts to reach an agreement. Consequently, the Commission issued an order permitting the protected action ballot.

This decision underscores the importance of meeting statutory requirements when seeking to conduct a protected action ballot. The Commission's decision to grant the application reflects its consideration of the union's efforts to negotiate in good faith and its adherence to the legislative framework governing such proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established