Construction, Forestry, Maritime, Mining and Energy Union v Stradbroke Ferries Pty Ltd

[2022] FWC 3147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Stradbroke Ferries Pty Ltd

(B2022/1763)

VICE PRESIDENT CATANZARITI

MELBOURNE, 28 NOVEMBER 2022

Proposed protected action ballot of employees of Stradbroke Ferries 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Stradbroke Ferries Pty Ltd (Respondent).

On 25 November 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Paul Gallagher of the Applicant declared on 28 November 2022, 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 PR748363.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application made by the Construction, Forestry, Maritime, Mining and Energy Union under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Stradbroke Ferries Pty Ltd. The application was made to facilitate a potential industrial action by the employees, and the respondent did not oppose the application. The Vice President of the Commission, Catanzariti, decided to determine the matter on the papers without holding a hearing, given the circumstances.

The legal issues before the Court were whether the union had genuinely attempted to reach an agreement with the respondent, and whether the requirements under section 443(1) of the Fair Work Act had been fulfilled. The union needed to demonstrate that it had taken steps to bargain with the respondent and had been genuinely trying to reach an agreement. The court had to determine if the union met these requirements based on the evidence presented.

The Vice President was satisfied that the union had taken steps in bargaining with the respondent and had genuinely tried to reach an agreement. The union provided a statutory declaration by Paul Gallagher, setting out the steps taken by the union in bargaining with the respondent. The Vice President found that the requirements under section 443(1) of the Act had been met, and granted the application for a protected action ballot order.

An Order was separately issued in PR748363. The Fair Work Commission granted the application for a protected action ballot order, enabling the union to proceed with the proposed industrial action. This decision highlights the importance of genuine attempts to reach an agreement in bargaining and the importance of fulfilling the requirements under the Fair Work Act when seeking a protected action ballot order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established