Construction, Forestry, Maritime, Mining and Energy Union v Hufcor Pty Ltd Summary

[2022] FWC 693

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Hufcor Pty Ltd

(B2022/250)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 MARCH 2022

Proposed protected action ballot of employees of Hufcor 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 Hufcor Pty Ltd (the Respondent).

On 29 March 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 Applicant’s response to the concerns raised by the Respondent and 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 of the Act have been met. Accordingly, I consider it appropriate to make an order for a protected action ballot in the terms sought by the Applicant.

An order has been separately issued in PR739788.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) for a protected action ballot order in relation to certain employees of Hufcor Pty Ltd (the Respondent). The dispute arose under s.437 of the Fair Work Act 2009, which concerns protected action ballots for employees. The Respondent did not object to the application, leading to a determination by the Deputy President based on the documents submitted. The Applicant sought the ballot to potentially take industrial action due to an impasse in negotiations with the Respondent.

The central legal issue was whether the conditions under s.437 of the Act were satisfied to allow the ballot to proceed. The Applicant needed to demonstrate that there was a notification period in relation to the proposed agreement and that the requirements of s.443 of the Act had been met, which involves proving that the union has genuinely tried to reach an agreement with the employer. The Deputy President reviewed the evidence provided, including the union's response to the Respondent's concerns and a declaration by Mr Steve Abboushi of the Applicant. These documents needed to establish that the union had been genuinely attempting to negotiate with the Respondent.

Upon reviewing the evidence, the Deputy President concluded that the notification period existed and that the union had genuinely tried to reach an agreement. The union's response to the Respondent's concerns and the declaration by Mr Abboushi were deemed sufficient to meet the requirements of the Act. Consequently, the Deputy President decided it was appropriate to grant the Applicant's request for a protected action ballot. The decision was made without a hearing, as the Respondent did not object to the application.

The Fair Work Commission issued an order permitting the protected action ballot to proceed. This order was issued separately as PR739788, allowing the union to proceed with the ballot under the terms specified in their application.

Construction, Forestry, Maritime, Mining and Energy Union v Hufcor Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established