DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Adbri Masonry Pty Ltd
(B2020/740)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 NOVEMBER 2020

Proposed protected action ballot of employees of Adbri Masonry 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 Adbri Masonry Pty Ltd (Respondent).

[2] On 23 November 2020, 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 declaration of Ms I Baxter 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 PR724789.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and Adbri Masonry Pty Ltd. The Union sought to conduct a protected action ballot among the employees of Adbri Masonry, a concrete masonry business. The Union aimed to organise the employees to take industrial action over pay and conditions, while Adbri Masonry opposed the ballot, arguing it was not protected action under the Fair Work Act 2009 (Cth). The Fair Work Commission was tasked with determining whether the proposed ballot was legitimate and whether Adbri Masonry was required to facilitate it.

The primary legal issue before the Commission was whether the proposed industrial action by the Union was genuinely intended to improve the employees' pay and conditions, as required by the Fair Work Act. The Commission had to consider whether the Union's proposed action was a genuine attempt to improve the employees' terms and conditions of employment. Additionally, the Commission needed to assess whether Adbri Masonry was obligated to facilitate the ballot as it was required to do under the Act if the proposed action was genuinely for the purpose of improving employees' pay and conditions.

The Fair Work Commission found that the proposed action was genuinely intended to improve the employees' pay and conditions. The Commission considered the evidence presented by the Union regarding the nature of the proposed industrial action and its objectives. The Commission was satisfied that the proposed action was genuinely for the purpose of improving the employees' terms and conditions of employment. Consequently, the Commission ordered Adbri Masonry to facilitate the ballot, as required by the Fair Work Act. The Commission determined that Adbri Masonry was obligated to allow the Union to conduct the ballot among its employees.

Adbri Masonry was ordered to facilitate the protected action ballot among its employees as required by the Fair Work Act. The Commission's decision upheld the Union's right to organise and conduct a ballot for the purpose of improving employees' pay and conditions, while also ensuring that employers' obligations under the Act were respected. The Commission's decision provides clarity on the requirements for conducting a protected action ballot and the obligations of employers in facilitating such ballots.

Construction, Forestry, Maritime, Mining and Energy Union v Adbri Masonry 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