Construction, Forestry, Maritime, Mining and Energy Union v Knauf Gypsum Pty Ltd

[2022] FWC 1844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Knauf Gypsum Pty Ltd

(B2022/684)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 JULY 2022

Proposed protected action ballot of employees of Knauf Gypsum 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 Knauf Gypsum Pty Ltd (Respondent).

On 14 July 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 declaration of Ms India Baxter 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(1) of the Act have been met.

An order has been separately issued in PR743784.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of certain employees, sought a protected action ballot order under section 437 of the Fair Work Act 2009. The employees in question were those of Knauf Gypsum Pty Ltd. Knauf Gypsum did not object to the application, leading to the case being determined on the papers submitted. The Union had declared that it had been genuinely attempting to reach an agreement with Knauf Gypsum and had taken the necessary steps to negotiate. Deputy President Gostencnik was tasked with deciding if the notification time for the proposed agreement was met, and if the requirements of section 443(1) of the Act were satisfied.

The primary legal issue that the court had to address was whether the Union's proposed ballot for protected action complied with the requirements set forth in the Fair Work Act 2009. Specifically, the court needed to ascertain whether the Union had genuinely attempted to reach an agreement with Knauf Gypsum, and if the notification time for the proposed agreement had been adhered to. The Union's declaration of their efforts and the lack of objection from Knauf Gypsum were key pieces of evidence in this regard.

Deputy President Gostencnik determined that the Union had genuinely tried to reach an agreement with Knauf Gypsum and that the notification time for the proposed agreement had been met. The Deputy President was satisfied with the information provided and decided to issue an order without holding a hearing. The court found that the requirements of section 443(1) of the Act were fulfilled, leading to the granting of the Union's application for a protected action ballot order. The court's decision was based on the evidence presented, including the Union's declaration and Knauf Gypsum's lack of objection.

The final order was issued separately, with the case number PR743784. The decision was rendered on 14 July 2022, and the Deputy President's determination allowed the Union to proceed with the protected action ballot as requested.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established