DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Australian Comfort Group Pty Ltd
(B2020/758)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 DECEMBER 2020

Proposed protected action ballot of employees of Australian Comfort Group 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 Australian Comfort Group Pty Ltd (Respondent).

[2] On 30 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 Arturo Menon 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 PR725000.

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 versus Australian Comfort Group Pty Ltd, the Fair Work Commission was called upon to address the dispute concerning a proposed protected action ballot of employees of the Australian Comfort Group Pty Ltd. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union, sought to conduct a ballot to determine the viability of protected industrial action. The employer contested the ballot's legitimacy, raising concerns about its scope and potential impact on the business operations.

The primary legal issue before the Commission was whether the proposed ballot was appropriately structured and conducted in accordance with the relevant industrial relations legislation. This involved assessing the timing, content, and scope of the ballot as well as ensuring that it complied with the necessary statutory requirements. The Commission also needed to determine if the employer's objections to the ballot were valid and if there were any procedural errors made by the union in proposing the ballot.

The Commission examined the provisions of the Fair Work Act and relevant regulations to determine whether the union's proposed ballot adhered to the legal standards. The Court noted that the ballot's timing was appropriate, and its content was relevant to the employees' interests. However, it found that certain procedural aspects of the ballot did not strictly comply with the required formalities. Despite these procedural shortcomings, the Commission ruled that the overall purpose and intent of the ballot were legitimate, and thus, the employer's objections were largely unfounded. Consequently, the Commission allowed the ballot to proceed, subject to the union making necessary amendments to address the identified procedural issues.

The final order mandated that the union rectify the procedural deficiencies in the ballot and ensure that all future ballots comply with the legal requirements. The Commission emphasised the importance of adhering to the procedural standards to avoid any potential legal challenges in the future. The employer was also instructed to facilitate the amended ballot process, ensuring that it did not unreasonably hinder the employees' right to organise and participate in the ballot.

Construction, Forestry, Maritime, Mining and Energy Union v Australian Comfort Group 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