Construction, Forestry, Maritime, Mining and Energy Union v Zoological Parks and Gardens Board T/A Zoos Victoria

[2023] FWC 618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Zoological Parks and Gardens Board T/A Zoos Victoria

(B2023/244)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 MARCH 2023

Proposed protected action ballot of employees of Zoological Parks and Gardens Board Trading As Zoos Victoria

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 Zoological Parks and Gardens Board T/A Zoos Victoria (Respondent).

On 15 March 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 Nicholas Grealy 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 PR760300.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) under section 437 of the Fair Work Act 2009, seeking an order for a protected action ballot among certain employees of the Zoological Parks and Gardens Board T/A Zoos Victoria (Respondent). The application was filed to facilitate the conduct of a ballot for proposed protected action by the employees. Notably, the Respondent did not object to the application, leading to the determination of the matter on the basis of written submissions and evidence, without the need for a formal hearing.

The primary legal issues before the Court were whether the notification period for the proposed agreement had been correctly established and if the statutory requirements under section 443(1) of the Act were fulfilled. The Court had to assess whether the Applicant had genuinely attempted to reach an agreement with the Respondent and whether the conditions for proceeding with a protected action ballot were met. This involved examining the steps taken by the Applicant in its bargaining process with the Respondent and verifying compliance with the relevant provisions of the Fair Work Act.

The Deputy President, Clancy, concluded that the notification period for the proposed agreement was correctly identified, and the Applicant had met the statutory requirements. The decision was based on the declaration of Nicholas Grealy, a representative of the Applicant, which detailed the bargaining efforts and the genuine attempts to reach an agreement with the Respondent. Given that the Respondent did not object and the evidence supported the Applicant's position, the Deputy President issued an order for the protected action ballot as requested.

The final orders issued by the Fair Work Commission granted the Applicant's request for a protected action ballot, confirming the notification period and the fulfilment of the statutory requirements under the Fair Work Act. This decision allowed the employees to proceed with the ballot as part of their efforts to reach a new agreement with their employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established