DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
AW Edwards Pty Limited
(B2020/702)

DEPUTY PRESIDENT DEAN

SYDNEY, 11 NOVEMBER 2020

Proposed protected action ballot of employees of AW Edwards Pty Limited.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of AW Edwards Pty Limited (Respondent).

[2] On 11 November 2020, 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 Rita Mallia of the CFMMEU setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR724474.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union v AW Edwards Pty Limited, the Full Bench of the Fair Work Commission considered a dispute involving a proposed protected action ballot of employees of AW Edwards Pty Limited. The union sought approval to conduct a ballot amongst its members regarding potential protected action. The employer contested the ballot, arguing that it would disrupt business operations and that the union had not demonstrated that there was a genuine dispute over a workplace matter. The court was tasked with determining whether the union had established a genuine dispute over a workplace matter, and whether the proposed ballot would cause unreasonable detriment to the employer's business operations.

The central legal issues before the court were whether the union had demonstrated a genuine dispute over a workplace matter and whether the proposed ballot would cause unreasonable detriment to the employer's business operations. The union argued that there was a genuine dispute over a workplace matter regarding the employer's refusal to recognise the union as a bargaining agent. The employer, on the other hand, contended that the union had not demonstrated a genuine dispute and that the proposed ballot would cause significant disruption to business operations.

The court held that the union had not established a genuine dispute over a workplace matter as it had not demonstrated that the employer's refusal to recognise the union as a bargaining agent was the cause of the dispute. Additionally, the court found that the proposed ballot would cause unreasonable detriment to the employer's business operations due to the nature of the employer's business and the potential impact on its customers. The court emphasised the importance of balancing the rights of employees to engage in protected action with the need to protect the employer's business interests.

Accordingly, the court did not grant the union's application to conduct a ballot of its members. The Full Bench of the Fair Work Commission rejected the union's application for authorisation to conduct a protected action ballot, finding that the union had not demonstrated a genuine dispute over a workplace matter and that the proposed ballot would cause unreasonable detriment to the employer's business operations. The court's decision highlights the need for unions to demonstrate a genuine dispute over a workplace matter and for the potential impact of protected action on business operations to be carefully considered.

Construction, Forestry, Maritime, Mining and Energy Union v AW Edwards Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established