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

[2023] FWC 1040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Ventia Australia Pty Ltd

(B2023/398)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 MAY 2023

Proposed protected action ballot of employees of Ventia Australia 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 Ventia Australia Pty Ltd (Respondent).

On 3 May 2023, 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 declaration of Mr Drew McDonald 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(1) of the Act have been met.

An order has been separately issued in PR761569.

DEPUTY 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 (CFMMEU) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Ventia Australia Pty Ltd. The CFMMEU sought to conduct a ballot of its members, who are employees of Ventia, regarding potential protected industrial action. This application was made due to the CFMMEU's assertion that it had been genuinely attempting to reach an agreement with Ventia but had been unable to do so, necessitating the consideration of industrial action as a means to resolve the ongoing dispute.

The legal issues before the Commission involved determining whether the statutory requirements for a protected action ballot had been met. This included verifying that the CFMMEU had genuinely attempted to negotiate with Ventia, that the proposed agreement had a notification time, and that the procedural prerequisites outlined in section 443(1) of the Act had been satisfied. Additionally, the Commission had to consider whether Ventia had any objections to the application, which would necessitate a formal hearing.

Upon reviewing the material submitted, including the declaration of Mr. Drew McDonald of the CFMMEU and the evidence of the union's bargaining efforts, the Deputy President determined that all statutory requirements for the ballot had been met. Notably, Ventia did not object to the application, and the evidence supported the CFMMEU's claims of genuine bargaining efforts and the existence of a notification time for the proposed agreement. Consequently, the Commission was satisfied that the prerequisites for a protected action ballot were fulfilled.

The Fair Work Commission issued an order permitting the CFMMEU to conduct a protected action ballot among its members employed by Ventia Australia Pty Ltd. This decision was made on the basis of the documentary evidence and the absence of objections from Ventia. An additional order was issued under reference number PR761569, formalising the authorisation for the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established