Construction, Forestry, Maritime, Mining and Energy Union v Pentarch Logistics Pty Ltd

[2023] FWC 563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Pentarch Logistics Pty Ltd

(B2023/213)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 MARCH 2023

Proposed protected action ballot of employees of Pentarch Logistics 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 Pentarch Logistics Pty Ltd (Respondent).

On 7 March 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 Ms Alison Rudman 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 PR760106

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with a case brought by the Construction, Forestry, Maritime, Mining and Energy Union against Pentarch Logistics Pty Ltd. The union sought a protected action ballot order for certain employees of the respondent company, as per section 437 of the Fair Work Act 2009. The dispute centred on the union's intent to organise a ballot to potentially take protected action, and the respondent company did not object to this application.

The primary legal issue before the Commission was whether the union had satisfied the requirements under section 443(1) of the Fair Work Act to hold a ballot for protected action. This involved verifying if the union had genuinely attempted to reach an agreement with the respondent company and if the notification time for the proposed agreement was appropriate. The union provided a declaration by Ms Alison Rudman, which outlined the steps taken during the bargaining process and confirmed the union's genuine efforts to reach an agreement.

The Deputy President of the Fair Work Commission determined the matter based on the submitted documents, as the respondent company did not object to the application and did not request a hearing. The Commission found that the union had indeed met the notification time requirements and had genuinely tried to reach an agreement, thus satisfying the conditions set out in section 443(1) of the Fair Work Act. Consequently, the Deputy President issued an order permitting the union to proceed with the ballot for protected action.

An additional order was issued in PR760106, reflecting the decision made in this case. This ruling allows the Construction, Forestry, Maritime, Mining and Energy Union to organise a ballot for the employees of Pentarch Logistics Pty Ltd as part of the protected action process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established