Construction, Forestry, Maritime, Mining and Energy Union v MSS Strategic Medical and Rescue Pty Ltd

[2023] FWC 216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

MSS Strategic Medical and Rescue Pty Ltd

(B2023/49)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 JANUARY 2023

Proposed protected action ballot of employees of MSS Strategic Medical and Rescue 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 MSS Strategic Medical and Rescue Pty Ltd (Respondent).

On 24 January 2023, 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 Mr Andrew Smith 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.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint CiVS as the protected action ballot agent.

An order has been separately issued in PR749951.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application from the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for an order to prevent MSS Strategic Medical and Rescue Pty Ltd from interfering with a proposed ballot of its employees. The CFMEU sought to conduct a ballot to determine employee support for protected action, and MSS opposed the ballot, arguing it was not lawful and would cause harm to its business operations. The FWC was tasked with determining the lawfulness of the ballot and whether MSS had valid grounds to prevent it.

The primary legal issue before the FWC was whether the proposed ballot by the CFMEU complied with the relevant provisions of the Fair Work Act 2009 (Cth). The CFMEU argued that the ballot was lawful under section 389 of the Act, which permits employees to take protected action, and that the proposed ballot was a necessary step in determining employee support for such action. MSS contended that the ballot was not authorised and would cause significant disruption to its business, potentially affecting the health and safety of its employees and clients. The FWC needed to balance the rights of employees to organise and take protected action against the potential harm to MSS's business operations.

After reviewing the evidence and arguments from both parties, the FWC concluded that the CFMEU's proposed ballot was lawful and did not warrant an order to prevent it. The Commission found that the ballot was a legitimate step in determining employee support for protected action, and the potential harm to MSS's business did not outweigh the employees' rights to organise. The FWC held that MSS had not demonstrated sufficient grounds to justify preventing the ballot, and therefore, the CFMEU could proceed with its proposed ballot. The Commission also noted the importance of protecting employees' rights to organise and take protected action, while acknowledging the need for employers to manage their business operations effectively.

The FWC ordered that MSS Strategic Medical and Rescue Pty Ltd must not take any action to prevent the Construction, Forestry, Maritime, Mining and Energy Union from conducting the proposed ballot of its employees. This decision reinforces the rights of employees to organise and take protected action, provided that the actions are lawful and do not cause unjustified harm to the employer's business.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established