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

[2022] FWC 1208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Falck (Victoria) Pty Ltd

(B2022/443)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 MAY 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).

On 17 May 2022, my Associate was advised that the Respondent did not object to 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 declaration of Andrew Smith of the Applicant 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 PR741717.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Construction, Forestry, Maritime, Mining and Energy Union (the Union) for a protected action ballot order in relation to certain employees of Falck (Victoria) Pty Ltd (the Employer). The Union sought the order under section 437 of the Fair Work Act 2009, which allows for the protection of employees engaging in protected industrial action, provided certain conditions are met. The dispute centred on the Union's claim that it had genuinely attempted to negotiate with the Employer but had been unable to reach an agreement. The Union sought to hold a ballot to determine if its members would support protected industrial action in the form of a strike or lockout.

The key legal issue before the Deputy President was whether the Union had met the statutory requirements for a protected action ballot order. This included verifying that the Union had genuinely attempted to negotiate with the Employer and that there was a notification time in relation to the proposed agreement. The Union provided a declaration from its representative, Andrew Smith, outlining the steps taken in bargaining with the Employer and asserting that the Union had been genuinely trying to reach an agreement. The Employer did not object to the application, which simplified the decision-making process.

Upon reviewing the documentation and considering the lack of objection from the Employer, the Deputy President was satisfied that the Union had genuinely attempted to negotiate and that there was a notification time in relation to the proposed agreement. The Deputy President noted that the requirements of section 443(1) of the Act had been fulfilled. Consequently, the Deputy President determined to grant the Union's application and issued a separate order in PR741717.

The final order authorised the Union to hold a protected action ballot among its members to determine their support for protected industrial action against the Employer. This decision underscores the importance of the Union demonstrating genuine efforts in negotiation before seeking to engage in industrial action, as well as the procedural requirements that must be met to obtain such authorisation.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established