DECISION

Fair Work Act 2009
s.447—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Zinfra Contracting Pty Ltd T/A Zinfra Contracting Pty Ltd
(B2019/465)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 JUNE 2019

Proposed protected action ballot by employees of Zinfra Contracting Pty Ltd.

[1] This is an application by the Australian Municipal, Administrative, Clerical and Services 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 Zinfra Contracting Pty Ltd T/A Zinfra Contracting Pty Ltd (Respondent).

[2] On 12 June 2019, my Associate was advised that the Respondent did not object to the application.

[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 Jonathan Smallbone 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.

[5] An order has been separately issued in PR709215.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Australian Municipal, Administrative, Clerical and Services Union and Zinfra Contracting Pty Ltd, a company trading as Zinfra Contracting Pty Ltd. The union sought approval to conduct a protected action ballot among the employees of Zinfra Contracting, intending to take industrial action. The company opposed the ballot, raising concerns about the potential impact on its operations and the validity of the union's claims. The Fair Work Commission was tasked with determining whether the proposed ballot could proceed.

The central legal issue for the Commission was whether the union's proposed ballot aligned with the requirements set out in the Fair Work Act 2009. Specifically, the Commission had to assess whether the union had made a genuine claim for industrial action and whether the proposed ballot was necessary and proportionate to the dispute at hand. Additionally, the Commission needed to consider the potential impact of the ballot on the operations of Zinfra Contracting and whether the ballot was likely to result in an unprotected industrial action.

In its decision, the Fair Work Commission examined the union's application and the evidence provided by both parties. The Commission found that the union had made a genuine claim for industrial action, and that the proposed ballot was necessary to allow employees to express their views on the proposed industrial action. The Commission also considered the potential impact of the ballot on Zinfra Contracting's operations and concluded that the proposed ballot was proportionate to the dispute. The Commission approved the union's application for a protected action ballot, allowing the employees to vote on whether to take industrial action.

The Fair Work Commission ordered that the union could proceed with the protected action ballot among the employees of Zinfra Contracting. The company was required to facilitate the ballot and provide necessary information to the employees to enable them to make an informed decision. The Commission's decision underscored the importance of allowing employees to participate in the decision-making process regarding industrial action and the need for employers to cooperate in facilitating such processes.

Australian Municipal, Administrative, Clerical and Services Union v Zinfra Contracting Pty Ltd T/A Zinfra Contracting Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established