Construction, Forestry, Maritime, Mining and Energy Union v Kalmar Equipment (Australia) Pty Ltd

[2022] FWC 1287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Kalmar Equipment (Australia) Pty Ltd

(B2022/473)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 MAY 2022

Proposed protected action ballot of employees of Kalmar Equipment (Australia) 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 Kalmar Equipment (Australia) Pty Ltd (Respondent).

On 24 May 2022, 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 Bradley Dunn of the Applicant declared on 23 May 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 PR741954.

VICE 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) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Kalmar Equipment (Australia) Pty Ltd (the Respondent). The Applicant sought to hold a protected action ballot for its members who were employees of the Respondent, in order to authorise potential industrial action. The Respondent did not oppose the application.

The central legal issue before the Fair Work Commission was whether the conditions for granting a protected action ballot order under section 437 of the Fair Work Act were met. Specifically, the Commission needed to determine if there was a notification time in relation to the proposed agreement and whether the requirements of section 443(1) of the Act were satisfied. The Commission considered the statutory declaration provided by Bradley Dunn of the Applicant, which outlined the bargaining process and the Applicant's efforts to reach an agreement with the Respondent.

Based on the evidence, including the statutory declaration and the Respondent's lack of opposition to the application, the Vice President was satisfied that the notification time for the proposed agreement existed and that the requirements of section 443(1) of the Act were fulfilled. The Vice President determined the matter on the papers without holding a hearing and issued an order allowing the protected action ballot to proceed.

The Fair Work Commission issued an order granting the protected action ballot order in PR741954. This order enables the Applicant to hold a ballot of its members who are employees of the Respondent to authorise potential industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established