Construction, Forestry, Maritime, Mining and Energy Union v Jetwave Marine Services Pty Ltd Summary

[2023] FWC 253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Jetwave Marine Services Pty Ltd

(B2023/57)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 JANUARY 2023

Proposed protected action ballot of employees of Jetwave Marine Services 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Jetwave Marine Services Pty Ltd (Respondent).

On 27 January 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Joel O’Brien of the Applicant declared on 20 October 2022, 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 PR750060.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has been asked to consider a matter concerning the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Jetwave Marine Services Pty Ltd. The CFMMEU has applied for a protected action ballot order under section 437 of the Fair Work Act 2009 in relation to certain employees of Jetwave Marine Services Pty Ltd. The dispute arises from the union's desire to ballot its members regarding potential protected action, which typically involves industrial action such as strikes or bans. Jetwave Marine Services Pty Ltd did not oppose the application, leading the Commission to decide the matter on the papers submitted without the need for a hearing.

The central legal issue the Commission had to address was whether the conditions set out in section 437 of the Fair Work Act were satisfied, specifically whether the union had genuinely tried to reach an agreement with the employer and whether there was a notification time in relation to the proposed agreement. The union's statutory declaration, made by Joel O'Brien, outlined the bargaining steps taken and affirmed the union's genuine attempts to reach an agreement with Jetwave Marine Services Pty Ltd. The Commission found that the requirements of section 443(1) of the Act were met, leading to the conclusion that the union was eligible to proceed with its ballot.

In reaching its decision, the Commission reviewed the material before it, including the union's declaration, and determined that the union had met the necessary conditions for a protected action ballot. The Vice President Catanzariti found that the union had genuinely attempted to reach an agreement with the employer and that the notification period for the proposed agreement had been appropriately met. Consequently, the Commission granted the union's application for a protected action ballot order, allowing the CFMMEU to proceed with the ballot among its members concerning Jetwave Marine Services Pty Ltd.

The final orders of the Commission were issued separately, confirming the grant of the protected action ballot order and setting the process in motion for the union to proceed with the ballot as planned. This decision ensures that the union's right to organise and advocate for its members is upheld within the legal framework provided by the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union v Jetwave Marine Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established