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

[2022] FWC 685

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Pentarch Logistics Pty Ltd

(B2022/239)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 MARCH 2022

Proposed protected action ballot of employees of Pentarch Logistics Pty Ltd

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (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 (the Respondent).

On 28 March 2022, 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 Ian Thomas 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 PR739747.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, under the Fair Work Act 2009, was asked to decide on an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to conduct a protected action ballot for certain employees of Pentarch Logistics Pty Ltd. The CFMMEU sought to organise a ballot to determine if employees were in favour of protected action, likely in the form of a strike or other industrial action, due to difficulties in reaching an agreement with the employer.

The central legal issue for the Commission to resolve was whether the requirements for a protected action ballot, as stipulated in section 437 of the Fair Work Act, were met. Specifically, the Commission needed to confirm that the CFMMEU had genuinely attempted to negotiate with Pentarch Logistics and that the notification period for the ballot was appropriately observed. Additionally, the Commission had to ensure that the proposed agreement was one that could be the subject of protected action under the Act.

The Deputy President determined that there was no objection from Pentarch Logistics to the CFMMEU's application, leading to the decision to proceed without a hearing. The Deputy President was satisfied, based on the evidence presented, that the CFMMEU had genuinely engaged in bargaining efforts and met the notification requirements for the ballot. The evidence included a declaration by Mr Ian Thomas of the CFMMEU outlining the union's negotiation steps and its ongoing efforts to reach an agreement with the employer. Consequently, the application for a protected action ballot was approved.

The Fair Work Commission issued an order for the protected action ballot, as outlined in a separate document, PR739747. This decision allows the CFMMEU to proceed with the ballot to gauge employee support for potential industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established