Construction, Forestry, Maritime, Mining and Energy Union v The Dempsey Group Pty Ltd

[2022] FWC 732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

The Dempsey Group Pty Ltd

(B2022/257)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 APRIL 2022

Proposed protected action ballot of employees of The Dempsey Group 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 (Act) for a protected action ballot order in relation to certain employees of The Dempsey Group Pty Ltd (the Respondent).

On 1 April 2022, my Associate was advised that the Respondent 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 Applicant’s response to the concerns raised by the Respondent and the declaration of Ms Jennifer Kruschel 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 of the Act have been met. Accordingly, I consider it appropriate to make an order for a protected action ballot in the terms sought by the Applicant.

An order has been separately issued in PR739929.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of its members employed by The Dempsey Group Pty Ltd, applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009. The application was made to address certain disputes in relation to employment conditions. The Dempsey Group Pty Ltd did not object to the application, and the matter was determined on the basis of the written submissions without a formal hearing.

The central legal issue before the Deputy President was whether the union had satisfied the statutory requirements for a protected action ballot. Specifically, the court needed to determine if the union had genuinely attempted to reach an agreement with the employer and if the notification period specified in the Act had been met. The union argued that it had been genuinely trying to negotiate and had taken all necessary steps to reach an agreement. The employer did not contest these claims, and the union provided a declaration from its representative supporting the assertion of genuine bargaining efforts.

The Deputy President found that the union had met the statutory requirements. The union had provided evidence of its efforts to negotiate in good faith and had fulfilled the notification period as required by section 443 of the Act. Consequently, the Deputy President concluded that it was appropriate to grant the union's application for a protected action ballot.

An order was subsequently issued in PR739929, allowing the union to proceed with the ballot to determine the next steps in the dispute resolution process. The court's decision emphasised the importance of genuine bargaining efforts and adherence to the statutory notification requirements in such proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established