Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd

[2023] FWC 1219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

OS MCAP Pty Ltd

(B2023/485)

DEPUTY PRESIDENT DOBSON

BRISBANE, 25 MAY 2023

Proposed protected action ballot of employees of OS MCAP Pty Ltd

An application pursuant to s.437 of the Fair Work Act 2009 (the Act) has been filed by the Construction, Forestry, Mining and Energy Union (Applicant) for protected action ballot orders in relation to certain employees of OS MCAP Pty Ltd (Respondent)

The application was originally objected to by the Respondent. Following consultation with the Applicant, the Applicant provided an amended application to which the Respondent advised they no longer objected.

In these 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 Mitch Hughes 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.

Orders will be issued separately with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) sought to hold a protected action ballot for certain employees of OS MCAP Pty Ltd (the Respondent). The application was lodged under section 437 of the Fair Work Act 2009. The Respondent initially objected to the application but later withdrew its objection following consultation with the Applicant. Consequently, the Deputy President determined the matter based on the submitted documentation without the need for a hearing. The application was for an order permitting the Applicant to hold a protected action ballot and for the appointment of a ballot agent.

The central legal issues the court needed to address were whether the requirements of section 443(1) of the Fair Work Act had been satisfied and whether the proposed ballot agent, CiVS, was fit and proper to conduct the ballot. The Applicant's declaration detailed the steps taken in bargaining with the Respondent and confirmed the Applicant's genuine efforts to reach an agreement. The Respondent did not oppose the appointment of CiVS as the ballot agent. The proposed agent, Democratic Outcomes Pty Ltd trading as CiVS, was recommended by Mr Michael M Michael, the Managing Director, who provided a statutory declaration affirming his suitability and experience in conducting protected action ballots. The court needed to assess whether CiVS and Mr Michael were capable of ensuring the secrecy and security of the votes and conducting the ballot efficiently.

The Deputy President concluded that the requirements for a notification time and section 443(1) of the Fair Work Act had been met. The court was satisfied that CiVS was a suitable ballot agent, capable of maintaining the secrecy and security of the votes and conducting the ballot promptly. Mr Michael and CiVS had agreed to comply with the Privacy Act 1998 in handling the information related to the ballot. Consequently, the Deputy President appointed CiVS as the protected action ballot agent.

Separate orders will be issued to formalise the appointment of CiVS as the ballot agent and to permit the Applicant to hold the protected action ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established