DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Etex Australia Pty Ltd
(B2021/396)

DEPUTY PRESIDENT DEAN

CANBERRA, 7 JUNE 2021

Proposed protected action ballot of employees of Etex Australia Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Etex Australia Pty Ltd (Respondent).

[2] On 7 June 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mark Cunningham of the CFMMEU setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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.

[5] An Order has been separately issued in PR730529.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union sought an order under section 170CB of the Fair Work Act 2009 (Cth) that Etex Australia Pty Ltd engage in good faith negotiations regarding the proposed industrial action of its employees. The proposed action involved a protected action ballot of the employees, which Etex sought to prevent on the basis that the union had not provided sufficient particulars of the proposed action. The matter was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the union had provided sufficient particulars of the proposed action to enable Etex to meaningfully engage in negotiations. The court also needed to consider whether the union's proposed action was protected action within the meaning of the Fair Work Act. In determining these issues, the court considered the legislative framework governing industrial action, including the requirements for a protected action ballot and the obligations of both parties to engage in good faith negotiations.

The court found that the union's particulars of the proposed action were sufficient to enable Etex to engage in meaningful negotiations. The court held that the union's proposed action was protected action, as it related to a dispute between Etex and its employees concerning terms and conditions of employment. The court further found that Etex had not engaged in good faith negotiations with the union, and ordered that Etex engage in such negotiations with the union. The court also ordered that the union provide Etex with further particulars of the proposed action, to enable Etex to meaningfully participate in the negotiations.

This decision highlights the importance of providing sufficient particulars of proposed industrial action, and the obligation of both parties to engage in good faith negotiations. Employers should ensure that they are aware of their obligations under the Fair Work Act, and take steps to engage in meaningful negotiations with their employees' union. Conversely, unions should ensure that they provide sufficient particulars of proposed industrial action to enable their employer to meaningfully participate in negotiations.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established