Construction, Forestry, Maritime, Mining and Energy Union v Premium Victoria Pty Ltd T/A Premium Showers and Robes

[2022] FWC 2634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Premium Victoria Pty Ltd T/A Premium Showers and Robes

(B2022/1472)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 SEPTEMBER 2022

Proposed protected action ballot of employees of Premium Victoria Pty Ltd T/A Premium Showers and Robes.

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 Premium Victoria Pty Ltd T/A Premium Showers and Robes (the Respondent).

While the Respondent submitted the proposed protected action ballot order was neither required nor necessary, it did not outline a statutory basis that would support the rejection of the application and nor did it request to be heard in addition to the correspondence it had sent to my Chambers outlining its position.

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 Darren Connelly of the Applicant, setting out the steps taken by the Applicant in bargaining and the assertion 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 PR746355.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Premium Victoria Pty Ltd, trading as Premium Showers and Robes. The application was made in relation to the proposed protected action ballot, and the respondent did not contest the requirement or necessity of the ballot. However, the respondent did not provide a statutory basis for rejecting the application and did not request to be heard. The matter was determined on the papers without a hearing.

The primary legal issue for the Fair Work Commission was whether the application for a protected action ballot order met the requirements of section 443(1) of the Fair Work Act 2009. This section stipulates that a party must give notification of an enterprise agreement and the timing of a ballot for protected action. The Commission needed to assess whether the union had genuinely attempted to reach an agreement with the employer and whether the notification time for the proposed agreement had been met.

The Deputy President of the Fair Work Commission, Clancy, determined that the application met the requirements of section 443(1) of the Fair Work Act 2009. The Commission was satisfied that there was a notification time in relation to the proposed agreement and that the union had genuinely attempted to reach an agreement with the employer. The Commission determined the matter on the papers without holding a hearing, and an order was issued separately in PR746355.

The Fair Work Commission granted the application for a protected action ballot order in relation to the employees of Premium Victoria Pty Ltd, trading as Premium Showers and Robes. The decision emphasised the importance of meeting the requirements of section 443(1) of the Fair Work Act 2009, including the notification time for a proposed agreement and the genuine attempt to reach an agreement between the union and the employer. The order was issued separately in PR746355.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established