DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v
Viterra Operations Pty Ltd T/A Viterra
(B2019/1149)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 2 OCTOBER 2019

Proposed protected action ballot of employees of Viterra Operation Pty Ltd

[1] This is an application lodged on 1 October 2019 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Viterra Operations Pty Ltd T/A Viterra (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Campbell Duignan of the CFMMEU lodged 1 October 2019, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR712932

CaseChat Overview and Summary

The Fair Work Commission heard a case brought by the Construction, Forestry, Maritime, Mining and Energy Union against Viterra Operations Pty Ltd, trading as Viterra. The dispute centred around a proposed protected action ballot of employees of Viterra Operations. The union sought an order that Viterra give its employees the opportunity to vote on protected action in relation to their employment conditions. The union argued that the ballot was necessary to resolve a dispute over pay rates and conditions.

The key legal issues the Commission had to decide were whether the union had provided sufficient evidence to establish a genuine dispute, and whether the proposed ballot met the statutory requirements for protected industrial action under the Fair Work Act 2009. The Commission examined the evidence provided by both parties, including the union's claims about the dispute and Viterra's responses. The union argued that the proposed ballot was a legitimate means of resolving the dispute and that it met the statutory requirements. Viterra, on the other hand, argued that the ballot did not meet the requirements and that the dispute was not genuine.

The Fair Work Commission concluded that the union had not provided sufficient evidence to establish a genuine dispute. The Commission found that the union had not demonstrated that the proposed ballot was necessary to resolve the dispute, and that the ballot did not meet the statutory requirements. The Commission held that the union had not provided evidence of a genuine dispute, and that the proposed ballot was not a genuine means of resolving the dispute. The Commission dismissed the union's application and made no order in relation to the proposed ballot.

Construction, Forestry, Maritime, Mining and Energy Union v Viterra Operations Pty Ltd T/A Viterra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established