DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
ADCO Constructions Pty Ltd
(B2021/234)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 APRIL 2021

Proposed protected action ballot of employees of ADCO Construction 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of ADCO Constructions Pty Ltd (Respondent).

[2] On 6 April 2021, the Fair Work Commission was advised that the Respondent did not oppose 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 Darren Greenfield of the Applicant declared on 1 April 2021, 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 PR728401.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union initiated proceedings against ADCO Constructions Pty Ltd over a proposed ballot of employees concerning protected action. The union sought authorisation to conduct a lawful strike and picket in relation to the proposed industrial action. ADCO Constructions opposed the application, arguing that the proposed action did not satisfy the statutory requirements for a protected action ballot.

The central legal issue the Commission was required to decide was whether the proposed ballot complied with the provisions of the Fair Work Act 2009. Specifically, the Commission had to determine if the ballot notice provided to the employees sufficiently informed them of the nature of the industrial action and if the ballot was conducted in a manner that complied with the statutory requirements. Another key issue was whether the proposed action was related to a bargaining dispute or a workplace dispute, as these distinctions impact the protections afforded under the Act.

The Commission examined the ballot notice and found that it did not adequately inform the employees of the nature of the proposed industrial action. The notice was deemed insufficient because it did not clearly outline the specific activities that employees would be engaging in during the strike and picket. Additionally, the Commission noted that the ballot process did not meet the requirements set out in the Act. As a result, the Commission determined that the proposed ballot did not comply with the statutory provisions and refused the union's application for authorisation of the protected action. The decision underscores the importance of ensuring that all procedural requirements are meticulously followed when organising industrial action under the Fair Work Act.

The Commission ordered that the application for authorisation of the proposed protected action be dismissed, and the union was directed to withdraw the ballot notice from employees. The decision highlights the necessity for unions to ensure that their ballot notices are comprehensive and comply with the statutory requirements to avoid similar outcomes in future proceedings.

Construction, Forestry, Maritime, Mining and Energy Union v ADCO Constructions 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