United Firefighters' Union of Australia v SEM Fire and Rescue Pty Ltd

[2023] FWC 1155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Firefighters’ Union of Australia

SEM Fire and Rescue Pty Ltd

(B2023/456)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 MAY 2023

Proposed protected action ballot of employees of SEM Fire and Rescue Pty Ltd

This is an application by the United Firefighters’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of SEM Fire and Rescue Pty Ltd (Respondent).

On 16 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 Jeremy Murphy 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 PR761943.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Firefighters' Union of Australia filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of SEM Fire and Rescue Pty Ltd. The case was heard by Deputy President Clancy of the Fair Work Commission. The application was made without objection from SEM Fire and Rescue Pty Ltd, leading the Deputy President to decide on the matter based on the submitted papers rather than a hearing. The primary objective was to ascertain whether the union's proposed action met the legal criteria for a protected action ballot.

The central legal issues involved determining if the notification period for the proposed agreement was valid and if the union had genuinely attempted to negotiate with SEM Fire and Rescue Pty Ltd. The Deputy President reviewed the declaration from Mr. Jeremy Murphy of the United Firefighters' Union of Australia, which detailed the union's bargaining steps and its ongoing efforts to reach an agreement with the respondent. The court's task was to assess the evidence and decide whether the union's actions complied with the Fair Work Act's requirements for initiating a protected action ballot.

Upon examining the provided evidence, the Deputy President found that the union had indeed met the notification period requirements and had genuinely attempted to negotiate with SEM Fire and Rescue Pty Ltd. The declaration by Mr. Murphy was deemed sufficient to satisfy the legal criteria. Consequently, the Deputy President concluded that the union's proposed protected action ballot was in compliance with the Act's provisions. An order was issued separately in PR761943 to formalize the decision.

No additional orders were specified beyond the issuance of the order in PR761943, which authorized the union to proceed with the protected action ballot. The Deputy President's decision affirmed the union's right to proceed with the ballot, subject to the conditions and requirements outlined in the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established