Construction, Forestry, Maritime, Mining and Energy Union v Peabody CHPP Pty Ltd

[2022] FWC 840

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Peabody CHPP Pty Ltd

(B2022/289)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 APRIL 2022

Proposed protected action ballot of employees of Peabody CHPP 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 Peabody CHPP Pty Ltd (Respondent).

On 11 April 2022, the Respondent advised that it did not wish to be heard in relation 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 statutory declaration of Robert Timbs of the Applicant declared on 7 April 2022, 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 PR740281.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of Peabody CHPP Pty Ltd. The Respondent chose not to participate in the hearing, prompting the Vice President to proceed with the decision based on the submitted documents. The application aimed to establish a notification period for a proposed agreement and verify compliance with section 443(1) of the Act, given that the CFMMEU had been genuinely attempting to reach an agreement with Peabody CHPP Pty Ltd.

The central legal issue before the court was whether the requirements of section 443(1) of the Fair Work Act 2009 had been satisfied, thereby justifying the issuance of a protected action ballot order. This required a review of the CFMMEU's efforts to negotiate in good faith with Peabody CHPP Pty Ltd, and the adequacy of the notification period for the proposed agreement. Additionally, the court needed to determine if the statutory declaration provided by Robert Timbs of the CFMMEU, dated 7 April 2022, sufficiently detailed the union's negotiation process and commitment to reaching an agreement.

After reviewing the material submitted, including the statutory declaration of Robert Timbs, the Vice President concluded that the CFMMEU had genuinely attempted to reach an agreement with Peabody CHPP Pty Ltd and had fulfilled the notification time requirement for the proposed agreement. The declaration provided sufficient evidence of the union's efforts and commitment to reaching an agreement, satisfying the requirements under section 443(1) of the Fair Work Act 2009. Consequently, the court granted the application, allowing for the issuance of a protected action ballot order.

An Order was issued in PR740281, formalising the decision to grant the CFMMEU's application for a protected action ballot order concerning the employees of Peabody CHPP Pty Ltd. The court's decision was based on the union's demonstrated good faith efforts in negotiations and the adequacy of the notification period as outlined in the statutory declaration. This ruling enables the CFMMEU to proceed with the proposed protected action ballot, subject to the compliance with the stipulated notification period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established