Construction, Forestry, Maritime, Mining and Energy Union v Kimberley Ports Authority

[2023] FWC 1293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Kimberley Ports Authority

(B2023/508)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 MAY 2023

Proposed protected action ballot of employees of Kimberley Ports Authority

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 Kimberley Ports Authority (Respondent).

On 31 May 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 Paul Brett of the Applicant declared on 16 May 2023, 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 PR762702.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union applied to the Fair Work Commission for a protected action ballot order regarding certain employees of the Kimberley Ports Authority. The Commission was informed that the Kimberley Ports Authority did not oppose the application. The application was made under section 437 of the Fair Work Act 2009, seeking authorisation for a ballot of employees to engage in protected industrial action.

The legal issues before the Commission were whether the union had genuinely attempted to reach an agreement with the employer and whether the notification time for the proposed agreement had been met, in line with section 443(1) of the Fair Work Act. The Commission considered the statutory declaration from Paul Brett of the union, which detailed the bargaining efforts and attempts to reach an agreement with the employer.

The Fair Work Commission was satisfied that the union had genuinely tried to reach an agreement and that the notification time for the proposed agreement had been met, based on the evidence provided. As the employer did not oppose the application, the Commission decided to determine the matter on the papers without holding a hearing. Consequently, the Commission granted the application and issued an order permitting the union to proceed with a ballot of its members.

The Fair Work Commission issued an order under section 437 of the Fair Work Act 2009, allowing the Construction, Forestry, Maritime, Mining and Energy Union to conduct a protected action ballot of its members employed by the Kimberley Ports Authority. This order enables the union to proceed with the ballot as per the provisions of the Act, provided the union continues to genuinely attempt to reach an agreement with the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established