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

[2022] FWC 598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

RTL Mining and Earthworks Pty Ltd

(B2022/202)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 MARCH 2022

Proposed protected action ballot of employees of RTL Mining and Earthworks 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 RTL Mining and Earthworks Pty Ltd (the Respondent).

On 16 March 2022, my Associate was advised that the Respondent objected to the application. However, on 17 March 2022, the parties were able to reach a consent 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 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.

An order has been separately issued in PR739414.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Construction, Forestry, Maritime, Mining and Energy Union seeking a protected action ballot order concerning certain employees of RTL Mining and Earthworks Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, which allows unions to request a protected action ballot if they have been genuinely attempting to negotiate an enterprise agreement and have not reached an agreement with the employer. Initially, RTL Mining and Earthworks Pty Ltd objected to the application, but subsequently, the parties reached a consent position, allowing the matter to be determined without a formal hearing.

The primary legal issue the Commission had to address was whether the union had met the criteria for a protected action ballot as outlined in section 443(1) of the Fair Work Act 2009. This section requires the union to demonstrate that there has been a notification time in relation to the proposed agreement and that it has been genuinely trying to reach an agreement with the employer. The Commission had to review the evidence provided, including a declaration from Mr. Mark Richards of the union, which detailed the bargaining steps taken and the union's efforts to reach an agreement.

Upon examining the material presented, including the declaration by Mr. Mark Richards, the Deputy President concluded that the union had met the necessary requirements for a protected action ballot. The Commission found that the union had genuinely attempted to negotiate an enterprise agreement and had provided adequate evidence of the notification time. Consequently, the Deputy President determined that the requirements for a protected action ballot were fulfilled. An order was issued in PR739414 in accordance with the findings.

The Fair Work Commission's decision to grant the protected action ballot order highlights the importance of unions following the legal requirements when seeking such ballots. The Commission's review ensured that the union had genuinely attempted to reach an agreement with the employer, thereby upholding the principles of fair work practices. The outcome was based on the evidence provided and the compliance with the statutory requirements, leading to the issuance of the order in PR739414.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established