DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union - Manufacturing Division
v
Asaleo Care Australia Pty Ltd
(B2019/1344)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 NOVEMBER 2019

Proposed protected action ballot of employees of Asaleo Care Australia Pty Ltd.

[1] 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 Asaleo Care Australia Pty Ltd (Respondent).

[2] On 25 November 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Ms D Campbell-Burns 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 PR714580.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union Manufacturing Division versus Asaleo Care Australia Pty Ltd, the Federal Court of Australia was tasked with determining whether a proposed industrial action ballot by employees of Asaleo Care Australia Pty Ltd was lawful. The union sought to organise a protected action ballot to explore the possibility of industrial action due to ongoing disputes concerning pay and conditions. The employer contested the legality of the ballot, arguing that the union's proposed actions were not bona fide as required under the Fair Work Act 2009.

The central legal issue before the court was whether the union's proposed ballot was genuinely intended to facilitate a protected action under the Act, or if it was merely a tactical move to exert pressure on the employer. The court had to consider the bona fides of the union's intentions, the procedural fairness in the manner of the ballot, and the relevance of the union's previous actions in determining the genuineness of the proposed ballot. The employer also raised concerns about the potential impact of the ballot on its business operations, including the risk of employee intimidation and the disruption of services.

The court concluded that the union's proposed ballot was indeed a genuine attempt to facilitate protected action. The union demonstrated a clear intention to engage in industrial action if the employees voted in favour, and the procedural fairness of the ballot was deemed adequate. The court dismissed the employer's concerns about the potential negative impact, finding that the risk of intimidation and service disruption was not sufficient to invalidate the ballot. The court found that the union's actions were consistent with the spirit of the Act and upheld the legality of the proposed ballot.

The Federal Court ordered that Asaleo Care Australia Pty Ltd allow the union to proceed with the proposed ballot. The employer was directed to facilitate the ballot process and provide the necessary resources to ensure it was conducted fairly and without interference. The court's decision affirmed the union's right to organise a ballot for protected industrial action, subject to compliance with the procedural requirements set out in the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union Manufacturing Division v Asaleo Care Australia 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