Construction, Forestry, Maritime, Mining and Energy Union v Saunders International Limited

[2018] FWC 2444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union

Saunders International Limited

(B2018/324)

Deputy President Gostencnik

MELBOURNE, 2 MAY 2018

Proposed protected action ballot of employees of Saunders International Limited.

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 Saunders International Limited (Respondent).

On 2 May 2018 my associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr D Vroland 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 PR606738.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Construction, Forestry, Maritime, Mining and Energy Union to hold a protected action ballot of the employees of Saunders International Limited. The Union sought to hold a ballot for the purpose of gaining authorisation to take protected action in relation to enterprise bargaining negotiations. Saunders International Limited opposed the application on the basis that the Union had not given the employer the required 14 days' notice of the ballot. The legal issues before the Commission were whether the Union had complied with the notice requirements and, if not, whether the employer had waived the notice requirements. The Commission found that the Union had not given the employer the required 14 days' notice of the ballot. However, the Commission also found that the employer had waived the notice requirements by not objecting to the ballot within the required timeframe. As a result, the Commission approved the Union's application to hold the ballot. The Commission emphasised the importance of employers responding promptly to union requests for protected action ballots, in order to ensure that they are not deemed to have waived their right to the required notice. The Commission ordered that the Union's application to hold a protected action ballot be approved, subject to the Union providing the employer with the ballot papers within seven days of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established