Construction, Forestry, Maritime, Mining and Energy Union v United Wambo Open Cut Pty Ltd Summary

[2022] FWC 2193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

United Wambo Open Cut Pty Ltd

(B2022/1238)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 AUGUST 2022

Proposed protected action ballot of employees of United Wambo Open Cut Pty Ltd

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union - Northern Mining & 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 United Wambo Open Cut Pty Ltd (Respondent).

The Respondent 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 Michael Taggart of the Applicant declared on 16 August 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 PR744912.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Construction, Forestry, Maritime, Mining and Energy Union - Northern Mining & NSW Energy District (Applicant) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order in relation to certain employees of United Wambo Open Cut Pty Ltd (Respondent). The Respondent neither consented nor objected to the application, leading the Vice President to determine the matter on the papers without holding a hearing. The Applicant had submitted a statutory declaration from Michael Taggart, dated 16 August 2022, outlining the bargaining steps taken with the Respondent and affirming the union's genuine efforts to reach an agreement. Based on this material and other evidence, the Vice President was satisfied that the notification time for the proposed agreement had been met and that the requirements of section 443(1) of the Act had been fulfilled.

The primary legal issues before the court were whether the union had genuinely tried to reach an agreement with the Respondent and whether the notification time in relation to the proposed agreement had been met. The court had to determine if the union had followed the proper procedures and fulfilled the necessary requirements for holding a protected action ballot under section 437 of the Fair Work Act 2009. The union's statutory declaration and the evidence presented played a crucial role in deciding these matters.

The Vice President concluded that the union had genuinely tried to reach an agreement with the Respondent and had met the notification time for the proposed agreement. Consequently, the court was satisfied that the requirements of section 443(1) of the Act had been met. An Order was issued separately in PR744912, granting the union permission to hold a protected action ballot.

The final orders of the court were to grant the union permission to hold a protected action ballot under section 437 of the Fair Work Act 2009, as it was determined that the union had genuinely tried to reach an agreement with the Respondent and met the notification time for the proposed agreement. The decision was made on the papers without holding a hearing, and an Order was issued in PR744912.

Construction, Forestry, Maritime, Mining and Energy Union v United Wambo Open Cut Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established