Construction, Forestry, Maritime, Mining and Energy Union v Liberty Bell Bay Pty Ltd

[2022] FWC 1079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Liberty Bell Bay Pty Ltd

(B2022/408)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 MAY 2022

Proposed protected action ballot of employees of Liberty Bell Bay 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 Liberty Bell Bay Pty Ltd (the Respondent).

On 6 May 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 Ricky Gale 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 PR741375.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (Applicant) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of Liberty Bell Bay Pty Ltd (Respondent). The matter was heard by Deputy President Clancy of the Fair Work Commission on 6 May 2022. The Respondent did not object to the application, leading the Deputy President to determine the matter based on the provided documents without the need for a hearing. The Applicant's declaration, made by Ricky Gale, outlined the bargaining process with the Respondent and confirmed the Applicant's genuine efforts to reach an agreement.

The primary legal issues in this case involved whether the notification period for the proposed agreement had been met and if the conditions outlined in section 443(1) of the Fair Work Act had been satisfied. The court needed to assess the validity of the Applicant's assertion that it had been genuinely attempting to reach an agreement with the Respondent, as well as the procedural requirements for the ballot. By examining the documentation and declarations provided, the court aimed to ascertain whether the statutory prerequisites for a protected action ballot were fulfilled.

In reaching its decision, the court considered the Applicant's declaration and the steps taken in bargaining with the Respondent. Deputy President Clancy determined that the notification period had indeed been met and that the statutory requirements were satisfied. Consequently, the court concluded that the application for a protected action ballot order was warranted. An order was subsequently issued in PR741375, permitting the ballot to proceed as requested by the Applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established