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

[2022] FWC 2966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

MSS Strategic Medical and Rescue Pty Ltd

(B2022/1682)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 NOVEMBER 2022

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 (the Respondent).

On 8 November 2022, my Associate was advised that the Respondent objected to the application on the basis that the Applicant has not been, and is not, genuinely trying to reach an agreement. I determined a Mention should be conducted, during which I discussed this objection with the parties and other matters subsequently raised. During the Mention, the Respondent withdrew its objection.

With the Mention having resolved the various matters raised, I have proceeded 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.

An order has been separately issued in PR747741.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has determined an application by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) for a protected action ballot order in relation to employees of MSS Strategic Medical and Rescue Pty Ltd (Respondent). This application was made under section 437 of the Fair Work Act 2009. The union seeks to conduct a protected action ballot to empower its members to engage in industrial action, presumably in pursuit of better working conditions or terms. The Respondent initially objected to the application, claiming that the union had not been genuinely attempting to reach an agreement. However, this objection was withdrawn during a Mention conducted to discuss the matter further.

The legal issues before the Deputy President, Clancy, centred on whether the union had genuinely been attempting to reach an agreement with the Respondent and if the notification time in relation to the proposed agreement was met. These issues were critical in determining whether the union's application should proceed. The union submitted a declaration from Mr. Andrew Smith, affirming the steps taken in bargaining and the genuine efforts to reach an agreement. The Respondent's objection, which was later withdrawn, questioned these assertions.

Deputy President Clancy found that the union had genuinely been trying to reach an agreement with the Respondent and that the notification time in relation to the proposed agreement was satisfied. The evidence provided by the union was deemed sufficient to meet the requirements under section 443(1) of the Act. Consequently, the Deputy President proceeded to determine the matter on the papers without the need for a formal hearing, as the Mention had already addressed the raised concerns. An order was subsequently issued in PR747741, allowing the union to proceed with the ballot.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established