United Workers' Union v Bremick Pty Ltd T/A Bremick Summary

[2023] FWC 889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Bremick Pty Ltd T/A Bremick

(B2023/335)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 APRIL 2023

Proposed protected action ballot of employees of Bremick Pty Ltd

This is an application by the United Workers’ 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 Bremick Pty Ltd T/A Bremick (Respondent).

The Respondent did not give an indication to the Fair Work Commission as to whether it opposes 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 Aaron James Behmer of the Applicant declared on 12 April 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 PR761116.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (Applicant) filed an application with the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 (Cth) for a protected action ballot order concerning certain employees of Bremick Pty Ltd T/A Bremick (Respondent). The matter was heard by Vice President Catanzariti in Sydney on 14 April 2023. The Respondent did not indicate to the FWC whether it opposed the application, leading to the decision to determine the matter based on the available documentation without a hearing. The application sought to address the proposed protected action ballot, with the union asserting that it had been genuinely attempting to reach an agreement with the employer.

The central legal issue before the FWC was whether the conditions for a protected action ballot order under section 437 of the Fair Work Act 2009 were satisfied. Specifically, the FWC needed to determine if the union had genuinely been trying to reach an agreement with the employer and if the statutory notification period had been met. The union's statutory declaration, provided by Aaron James Behmer on 12 April 2023, detailed the steps taken during the bargaining process and the union's efforts to reach an agreement with the employer. The FWC considered this evidence, along with other material before it, to make its decision.

The FWC found that the union had genuinely been attempting to reach an agreement with the employer, as evidenced by the statutory declaration and the steps outlined in the bargaining process. The FWC was also satisfied that the notification time in relation to the proposed agreement had been met, and that all requirements under section 443(1) of the Act were fulfilled. Consequently, the FWC determined to grant the application for a protected action ballot order. An Order was subsequently issued in PR761116.

This decision underscores the importance of the statutory declaration in substantiating the union's claims and the FWC's reliance on the documentation provided to ascertain compliance with the Act. The union's efforts to reach an agreement and the adherence to the notification period were critical factors in the FWC's decision to grant the application. The order issued ensures that the union can proceed with the ballot, provided the legal conditions are met.

United Workers' Union v Bremick Pty Ltd T/A Bremick

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established