Construction, Forestry, Maritime, Mining and Energy Union v Falck (Victoria) Pty Ltd

[2022] FWC 3220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Falck (Victoria) Pty Ltd

(B2022/1800)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 DECEMBER 2022

Proposed protected action ballot of employees of Falck (Victoria) 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 (Act) for a protected action ballot order in relation to certain employees of Falck (Victoria) Pty Ltd (the Respondent).

While the Respondent outlined health and safety concerns relating to the proposed forms of industrial action, it did not outline a statutory basis that would support the rejection of the application. I determined a Mention should be conducted, during which I discussed the concerns with the parties and others subsequently raised. During the Mention, the Respondent withdrew its objection.

With the Mention having resolved the various matters raised, I have proceeded to determine the matter on the papers, it not being necessary to conduct a hearing.

On the basis of the material before me, including the declaration of Mr Andrew Smith of the Applicant, setting out the steps taken by the Applicant in bargaining and the assertion 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 PR748647.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Fair Work Commission heard an application from the Construction, Forestry, Maritime, Mining and Energy Union seeking a protected action ballot order for certain employees of Falck (Victoria) Pty Ltd. The Respondent, Falck (Victoria) Pty Ltd, raised health and safety concerns about the proposed industrial action but failed to provide a statutory basis for rejecting the application. Following a mention where these concerns were discussed, the Respondent withdrew its objection. The Deputy President, Clancy, determined the matter on the papers, concluding that the Respondent's concerns had been adequately addressed.

The legal issue before the court was whether the application for a protected action ballot order should be granted. The court had to consider whether the union had met the notification time and the requirements under section 443(1) of the Fair Work Act 2009. The union submitted a declaration from Mr Andrew Smith, asserting that it had been genuinely trying to reach an agreement with the Respondent during the bargaining process.

The Deputy President found that the union had fulfilled the notification time and had met the requirements of section 443(1) of the Act. The union's declaration, along with the steps taken in bargaining, satisfied the court that the union had acted in good faith. The health and safety concerns raised by the Respondent did not provide a sufficient statutory basis to reject the application.

In conclusion, the Deputy President granted the application for a protected action ballot order. An order was separately issued in PR748647. The decision was based on the material presented, including the union's declaration and the withdrawal of the Respondent's objection following the mention.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established