Construction, Forestry, Maritime, Mining and Energy Union v UGM Mining Services Pty Ltd BIS Industries Limited Summary

[2022] FWC 1777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

UGM Mining Services Pty Ltd
BIS Industries Limited

(B2022/651)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 JULY 2022

Proposed protected action ballot of employees of UGM Mining Services Pty Ltd & BIS Industries Limited

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union Northern Mining and NSW Energy District (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 UGM Mining Services Pty Ltd and BIS Industries Limited (Respondents).

The Respondents neither consented nor objected 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 statutory declaration of Keenon Endacott of the Applicant declared on 6 July 2022, setting out the steps taken by it in bargaining with the Respondents and that it has been, and is, genuinely trying to reach agreement with the Respondents, 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 PR743583.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMU) Northern Mining and NSW Energy District, seeking a protected action ballot order in relation to certain employees of UGM Mining Services Pty Ltd and BIS Industries Limited. The CFMMU had made this application under section 437 of the Fair Work Act 2009, asserting that it had been genuinely attempting to negotiate with the respondents, UGM Mining Services Pty Ltd and BIS Industries Limited, without success. The respondents neither consented to nor objected against the application. The Vice President of the FWC, Catanzariti, decided to determine the matter based on the documentation provided, without the need for a hearing.

The central legal issue before the FWC was whether the CFMMU had met the statutory requirements to hold a protected action ballot. Specifically, the FWC needed to ascertain if the union had genuinely attempted to negotiate with the employers and if the notification period for the proposed agreement had been appropriately adhered to. Additionally, the FWC had to determine whether the statutory requirements under section 443(1) of the Fair Work Act had been fulfilled. The documentation submitted by the CFMMU included a statutory declaration from Keenon Endacott, which detailed the union's negotiation efforts and the timeline of these efforts.

After reviewing the material provided, including the statutory declaration by Keenon Endacott, the FWC concluded that the CFMMU had genuinely been trying to reach an agreement with the respondents and that the notification period for the proposed agreement had been properly observed. The Vice President was satisfied that the union had met the requirements under section 443(1) of the Fair Work Act. Consequently, the FWC granted the CFMMU's application for a protected action ballot order. A separate order was issued under the reference number PR743583.

Construction, Forestry, Maritime, Mining and Energy Union v UGM Mining Services Pty Ltd BIS Industries Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established