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

[2023] FWC 1009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Milliken (Australia) Pty Ltd

(B2023/383)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 APRIL 2023

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

On 28 April 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 Anna Dinh of the Applicant declared on 27 April 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 PR761484.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged an application with the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Milliken (Australia) Pty Ltd. The matter was brought forward as the CFMMEU sought to organise a ballot for proposed protected action, presumably related to industrial action. Milliken (Australia) Pty Ltd did not oppose the application, leading the Commission to proceed with the decision based on the provided documentation without a formal hearing. The Vice President, Catanzariti, was tasked with determining the matter.

The central legal issue before the Commission was whether the CFMMEU had genuinely tried to reach an agreement with Milliken (Australia) Pty Ltd and if all statutory requirements for a protected action ballot had been met. The Commission needed to assess the evidence of genuine bargaining efforts and the compliance with the notification period as stipulated by section 443(1) of the Fair Work Act. The decision hinged on whether the union had fulfilled its obligations to engage in good-faith negotiations and whether the procedural prerequisites for the ballot were satisfied.

In reaching the decision, Vice President Catanzariti examined the statutory declaration provided by Anna Dinh of the CFMMEU, which outlined the union's bargaining efforts and adherence to the notification period. The Commission was satisfied that the union had indeed been genuinely attempting to reach an agreement with Milliken (Australia) Pty Ltd and that all necessary statutory requirements had been fulfilled. Consequently, the application was granted, and an order was issued for the protected action ballot to proceed. The decision underscores the importance of genuine negotiation efforts and procedural compliance in matters concerning protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established