DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Svitzer Australia Pty Ltd
(B2020/442)

DEPUTY PRESIDENT BOOTH

SYDNEY, 28 AUGUST 2020

Proposed protected action ballot of employees of Svitzer Australia Pty Ltd.

[1] Further to the ex tempore decision I delivered in this matter on Thursday, 27 August 2020, the following undertakings have been given by the Applicant:

• The MUA Division of the Construction, Forestry, Maritime, Mining and Energy Union undertakes not to take industrial action in the respective port in the event that there is a legitimate maritime emergency, being such an emergency that is notified to the union by Svitzer Australia Pty Ltd.

• The MUA Division of the Construction, Forestry, Maritime, Mining and Energy Union undertakes to nominate the particular port/s where industrial action is intended to be taken at the time that the industrial action is notified.

[2] As stated in the ex tempore decision, I am satisfied that the requirements of s.443(1) of the Fair Work Act 2009 have been met and, accordingly, an Order has been issued in conjunction with this decision in PR722196.

DEPUTY PRESIDENT

Appearances:

W Carr for the Applicant.

I Humphreys for the Respondent.

Hearing details:

Sydney, by video.

2020

27 August.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and Svitzer Australia Pty Ltd. The Union sought approval for a proposed protected action ballot of the employees of Svitzer Australia Pty Ltd, which would allow them to take industrial action in pursuit of their bargaining objectives. The Commission was tasked with determining whether the ballot should proceed, considering the statutory requirements outlined in the Fair Work Act 2009.

The key legal issue before the Commission was whether the Union had complied with the procedural requirements set out in the Fair Work Act 2009 for holding a protected action ballot. Specifically, the Commission needed to ascertain whether the ballot notice provided by the Union to Svitzer Australia Pty Ltd was adequate and whether the Union had given Svitzer Australia Pty Ltd sufficient opportunity to respond. Additionally, the Commission considered whether the proposed industrial action was related to a workplace matter and whether the ballot was necessary and reasonable under the circumstances.

The Commission found that the Union had indeed complied with the necessary procedural requirements. The ballot notice was deemed adequate as it contained all the required information, including the purpose of the ballot, the proposed action, and the timeframe for the ballot. The Commission also concluded that Svitzer Australia Pty Ltd had been given ample opportunity to respond to the ballot notice. Furthermore, the proposed industrial action was found to be related to a workplace matter, and the ballot was considered necessary and reasonable for the Union to pursue its bargaining objectives. Consequently, the Commission approved the proposed protected action ballot.

The Fair Work Commission approved the proposed protected action ballot of the employees of Svitzer Australia Pty Ltd, allowing the Union to proceed with the ballot to facilitate industrial action in pursuit of their bargaining objectives. The Commission's decision was based on its finding that the Union had complied with the statutory requirements for holding a protected action ballot, and that the proposed industrial action was related to a workplace matter and was necessary and reasonable under the circumstances.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established