Construction, Forestry, Maritime, Mining and Energy Union v Holcim (Australia) Pty Limited

[2023] FWC 1382

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v

Holcim (Australia) Pty Limited

(B2023/555)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 14 JUNE 2023

Proposed protected action ballot of employees of Holcim (Australia) Pty Limited

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

On 13 June 2023, the Commission was advised that the Respondent objected to one of the proposed questions in the draft order that accompanied the application. The CFMMEU subsequently indicated that it would not press that particular question. The application and the proposed order as amended in that manner are not opposed by the Respondent.

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 Michael Hiscox, Assistant Secretary, CFMMEU, 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 all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission (AEC). A ballot period of 30 days from the date of the Order has been established by the Commission in recognition of the AEC’s requirements.

An order has been separately issued in PR763022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to certain employees of Holcim (Australia) Pty Limited. The application was made under section 437 of the Fair Work Act 2009. Holcim objected to one of the proposed questions in the draft order that accompanied the application, but the CFMMEU subsequently indicated that it would not press that particular question. The application and the proposed order, as amended, were not opposed by Holcim.

The legal issue before the FWC was whether the CFMMEU had met the requirements of section 443(1) of the Fair Work Act to be granted a protected action ballot order. The FWC needed to determine whether there was a notification time in relation to the proposed agreement and whether the CFMMEU had genuinely tried to reach an agreement with Holcim. The CFMMEU submitted a declaration from its Assistant Secretary, Mr Michael Hiscox, outlining the steps taken in bargaining with Holcim and confirming that the union had been genuinely trying to reach an agreement.

The FWC considered the material before it, including Mr Hiscox's declaration, and was satisfied that there was a notification time in relation to the proposed agreement and that the CFMMEU had met all the requirements in section 443(1) of the Fair Work Act. The FWC determined that the ballot would be conducted by the Australian Electoral Commission (AEC) and established a ballot period of 30 days from the date of the Order, in recognition of the AEC’s requirements. The FWC issued an order in PR763022.

The FWC granted the CFMMEU's application for a protected action ballot order, subject to the conditions specified in the order. The ballot will be conducted by the AEC, and the ballot period will be 30 days from the date of the order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established