Construction, Forestry, Maritime, Mining and Energy Union v Forest One Australia Pty Ltd T/A Forest One (Derrimut)

[2022] FWC 1396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Forest One Australia Pty Ltd T/A Forest One (Derrimut)

(B2022/515)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 JUNE 2022

Proposed protected action ballot of employees of Forest One Australia Pty Ltd T/A Forest One (Derrimut).

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 Forest One Australia Pty Ltd T/A Forest One (Derrimut) (the Respondent).

On 2 June 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 Mr Steve Abboushi 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 PR742279.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Construction, Forestry, Maritime, Mining and Energy Union seeking a protected action ballot order in relation to certain employees of Forest One Australia Pty Ltd T/A Forest One (Derrimut). The application was made under section 437 of the Fair Work Act 2009, indicating the union's intention to ballot its members about potential protected industrial action. Forest One Australia Pty Ltd, the employer, did not object to the application, leading to the matter being determined on the submitted documents without the need for a formal hearing.

The central legal issue before the Commission was whether the union had satisfied the statutory prerequisites for a protected action ballot under the Fair Work Act. Specifically, the Commission needed to ascertain if there was a notification time in relation to the proposed agreement and if the union had genuinely attempted to reach an agreement with the employer, fulfilling the requirements outlined in section 443(1) of the Act.

The Deputy President reviewed the declaration by Mr. Steve Abboushi of the Applicant, which detailed the bargaining steps undertaken by the union with the employer. The declaration indicated that the union had been genuinely attempting to reach an agreement with the employer. The Commission was satisfied, based on the material presented, that there was indeed a notification time in relation to the proposed agreement, and that the union had met the necessary requirements. Consequently, the application for a protected action ballot order was granted.

In light of the findings, the Fair Work Commission issued an order in PR742279, permitting the union to proceed with the ballot for potential protected industrial action. This decision underscores the importance of the procedural requirements under the Fair Work Act for unions seeking to engage in protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established