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

[2023] FWC 302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Ventia (Australia) Pty Ltd

(B2023/75)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 FEBRUARY 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Ventia (Australia) Pty Ltd (Respondent).

On 3 February 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 Anthony Dimitriou of the Applicant declared on 1 February 2023, 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 PR750230.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) under section 437 of the Fair Work Act 2009, seeking to hold a protected action ballot for certain employees of Ventia (Australia) Pty Ltd. The CFMEU argued that it had engaged in genuine bargaining efforts and fulfilled the prerequisites for such a ballot as outlined in section 443(1) of the Act. Ventia did not oppose the application, leading to the FWC deciding to adjudicate on the application based on the submitted documentation without a hearing. The application was supported by a statutory declaration from Anthony Dimitriou of the CFMEU, which detailed the union’s negotiation efforts and adherence to the statutory requirements.

The central legal issues before the Commission involved verifying whether the CFMEU had indeed engaged in genuine bargaining with Ventia and if the statutory conditions for a protected action ballot had been met. Specifically, the FWC had to determine if the union had followed the appropriate procedures as stipulated by the Act and if there was a notification period as required. The Commission's task was to assess the provided evidence and decide if the CFMEU's application met the legislative criteria for holding a protected action ballot.

The FWC, through Vice President Catanzariti, concluded that the CFMEU had satisfied the statutory requirements for a protected action ballot. The evidence, including the statutory declaration by Anthony Dimitriou, demonstrated that the union had genuinely attempted to negotiate with Ventia and had complied with the notification period as specified by the Act. Consequently, the application was approved, and an order was issued accordingly. This decision was made on 3 February 2023, and a separate order was issued in PR750230.

In summary, the Fair Work Commission upheld the CFMEU’s application for a protected action ballot, finding that the union had fulfilled the necessary conditions and had engaged in good faith bargaining with Ventia. The Commission's decision was based on the documentation presented, which substantiated the union's claims of genuine negotiation efforts and compliance with the statutory notification period.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established