Construction, Forestry, Maritime, Mining and Energy Union v RTL Mining and Earthworks Pty Ltd

[2022] FWC 1971

[2022] FWC 1971

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

v

RTL Mining and Earthworks Pty Ltd

(B2022/1132)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 JULY 2022

Proposed protected action ballot of employees of RTL Mining and Earthworks Pty Ltd.

1. This is an application by the Construction, Forestry, Maritime, Mining and Energy Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of RTL Mining and Earthworks Pty Ltd (the Respondent).

1. The Respondent initially advised my Chambers that it objected to the protected action ballot order being made on the basis that the Applicant had not been, and was not, genuinely trying to reach an agreement. The Respondent also a raised a concern in relation to the single form of industrial action identified in the draft order and sought an extension of the notice period required for the taking of the industrial action from 3 working days to 7 working days. I determined a Mention should be conducted, during which I discussed the above matters with the parties. Following the Mention, the parties were able to reach a consent position.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Mark Richards 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. I am also satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than 3 working days and that I should exercise the discretionary power in s.443(5) of the Act and specify a period of 5 working days.

1. An order has been separately issued in PR744184.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR744183>