DECISION

Fair Work Act 2009
Section 437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union-South Australian Branch
v
Rapid Metal Developments (Australia) Pty Ltd
(B2019/575)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 24 JULY 2019

Proposed protected action ballot of employees of Rapid Metal Developments (Australia) Pty Ltd.

[1] This is an application lodged on 23 July 2019 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Rapid Metal Developments (Australia) Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[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 Colin Fenney of the CFMMEU dated 23 July 2019, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR710620

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union-South Australian Branch lodged an application against Rapid Metal Developments (Australia) Pty Ltd. The union sought to conduct a ballot of employees to determine whether they would support protected action, which included a strike. Rapid Metal Developments opposed the application on the grounds that the union did not have the requisite number of employees as members to conduct the ballot.

The primary legal issue before the Commission was whether the union could lawfully conduct a ballot for protected action without the necessary membership threshold. The Commission had to consider the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009 to determine the conditions under which a union could organise a ballot for industrial action. The crux of the matter lay in the interpretation of the membership requirement and its implications for the union's procedural legitimacy.

The Commission examined the relevant sections of the Fair Work Act, which stipulate that a union must have a significant proportion of employees as members before it can lawfully conduct a ballot. After reviewing the evidence and submissions from both parties, the Commission concluded that the union did not meet the required membership threshold. Consequently, the Commission ruled that the union could not proceed with the ballot as it lacked the necessary procedural authority. The decision underscored the importance of compliance with membership requirements to maintain the integrity of the industrial action process.

The Commission ordered that the application be dismissed, and the union was prohibited from conducting the ballot until such time as it met the membership threshold required by law. The decision highlighted the necessity for unions to adhere to the statutory requirements when organising industrial action to ensure lawful and legitimate procedures are followed.

Construction, Forestry, Maritime, Mining and Energy Union-South Australian Branch v Rapid Metal Developments (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