DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
1 Port Pty Ltd T/A 1 Port
(B2019/461)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 JUNE 2019

Proposed protected action ballot of employees of 1 Port Pty Ltd.

[1] This is an application by the Construction, Forestry, 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 1 Port Pty Ltd T/A 1 Port (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 Jeffrey Hoy 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 PR709229.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and 1 Port Pty Ltd, trading as 1 Port, over a proposed ballot of employees for protected action. The dispute centred around the union's right to conduct a ballot to gauge support for industrial action. The Federal Circuit and Family Court of Australia was the court that dealt with the matter.

The central legal issue the court needed to address was whether the union's proposed ballot complied with the requirements of the Fair Work Act 2009. Specifically, the court examined whether the union had followed the correct procedures for holding the ballot and whether the ballot was reasonably likely to achieve the union's intended purpose. The union argued that the proposed ballot was necessary to secure fair pay and conditions for the employees. Conversely, 1 Port Pty Ltd contended that the ballot did not comply with the statutory requirements and was not likely to achieve the union's purpose.

The court found that the union had not strictly adhered to the procedural requirements outlined in the Fair Work Act 2009 for holding a protected action ballot. Despite this, the court determined that the union's failure to comply with the procedural requirements did not invalidate the ballot. The court held that the union's intention was to secure fair pay and conditions for its members, which was a legitimate objective. The court concluded that the ballot was reasonably likely to achieve the union's purpose. The court thus found in favour of the union, upholding the right of the employees to participate in the proposed ballot. The court did not issue any specific orders, as its decision was based on the interpretation of the Fair Work Act 2009 and the determination of the union's rights under the act.

Construction, Forestry, Maritime, Mining and Energy Union v 1 Port Pty Ltd T/A 1 Port

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established