Construction, Forestry, Maritime, Mining and Energy Union v SRG Global Integrated Services Pty Ltd

[2023] FWC 1914

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v

SRG Global Integrated Services Pty Ltd

(B2023/788)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 3 AUGUST 2023

Proposed protected action ballot of employees of SRG Global Integrated Services Pty Ltd

This is an application by the Construction, Forestry, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of SRG Global Integrated Services Pty Ltd (SRG or Employer).

On 2 August 2023, the Commission was advised that SRG, in effect, 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 Ms Michelle Sheehy, CFMMEU Organiser, setting out the steps taken by the CFMMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with SRG, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot. For the purposes of s.443(3)(c) and s.448A(2) of the Act, and following consultation with the parties, a ballot period of ten (10) working days from the date of the Order (3 August 2023) has been determined by the Commission.[2]

An Order has been separately issued in PR764829.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference and this Member will issue the Order requiring attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] Parties were provided with an opportunity to be heard in relation to the proposed ballot period; no submissions were provided.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union v SRG Global Integrated Services Pty Ltd, the Construction, Forestry, Mining and Energy Union (CFMMEU) applied to the Fair Work Commission (FWC) for a protected action ballot order concerning specific employees of SRG Global Integrated Services Pty Ltd (SRG or Employer). The application was made under section 437 of the Fair Work Act 2009. The dispute arose from negotiations between the CFMMEU and SRG over a proposed agreement, with the CFMMEU seeking to conduct a protected action ballot. On August 2, 2023, the Commission was informed that SRG did not oppose the application, leading to a decision on the papers without a hearing.

The legal issues before the Commission included whether the CFMMEU had fulfilled the requirements for a protected action ballot under section 443 of the Fair Work Act 2009 and if the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), was eligible. The Commission also needed to determine a ballot period. The Deputy President reviewed the documentation, including a declaration from Ms. Michelle Sheehy, CFMMEU Organiser, which outlined the union's efforts to reach an agreement with SRG. Based on the evidence, the Deputy President found that the CFMMEU had genuinely tried to negotiate and that all statutory requirements for the ballot had been met. The Deputy President also confirmed that CiVS was an approved ballot agent and set a ten-working-day ballot period.

The Deputy President concluded that the CFMMEU had satisfied the necessary conditions for a protected action ballot. The Deputy President issued an order allowing the ballot to proceed, setting the ballot period and assigning the case to another Commission member for the compulsory conciliation conference. The decision was made on August 3, 2023, with the ballot to commence ten working days from that date. Further directions were anticipated to ensure meaningful negotiations at the conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established