Construction, Forestry, Maritime, Mining and Energy Union v Svitzer Australia Pty Limited Summary

[2022] FWC 1758

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Svitzer Australia Pty Limited

(B2022/649)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 JULY 2022

Proposed protected action ballot of employees of Svitzer Australia Pty 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Svitzer Australia Pty Limited (Respondent).

On 6 July 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 Glen Williams of the Applicant declared on 5 July 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 PR743511.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Construction, Forestry, Maritime, Mining and Energy Union (the Union) for a protected action ballot order concerning certain employees of Svitzer Australia Pty Limited (the Employer). The Union sought to conduct a protected action ballot under section 437 of the Fair Work Act 2009 (the Act) due to an impasse in bargaining negotiations with the Employer. The Union argued that it had been genuinely trying to reach an agreement with the Employer but had been unsuccessful, leading to the request for a ballot to authorise protected action. The Employer did not oppose the application, and the matter was determined on the papers without a hearing.

The central legal issue before the Fair Work Commission was whether the Union had satisfied the statutory requirements to conduct a protected action ballot under the Act. This involved confirming that there was a notification time in relation to the proposed agreement and that the Union had fulfilled the obligations under section 443(1) of the Act, which includes demonstrating genuine efforts to reach an agreement with the Employer. The Commission considered the statutory declaration of Glen Williams, who attested to the Union's negotiation efforts and its compliance with the Act's requirements.

The Fair Work Commission concluded that the Union had met the necessary criteria for a protected action ballot. The Vice President, Catanzariti, found that the Union had genuinely tried to reach an agreement with the Employer and that the statutory requirements had been met. Consequently, the Commission granted the Union's application for a protected action ballot order. This decision allowed the Union to proceed with the ballot to authorise protected action, as permitted under the Act, given the ongoing impasse in the bargaining process.

In light of the findings, the Fair Work Commission issued an Order permitting the Union to conduct a ballot among the specified employees of the Employer. This Order ensures that the Union can proceed with the necessary steps to authorise protected action, subject to the provisions of the Act. The decision underscores the importance of the Commission's role in facilitating fair work practices and resolving disputes between employers and unions through statutory mechanisms.

Construction, Forestry, Maritime, Mining and Energy Union v Svitzer Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established