DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v
Bedford Phoenix Incorporated T/A Adelaide Property and Gardens
(B2021/1128)

COMMISSIONER HAMPTON

ADELAIDE, 25 NOVEMBER 2021

Proposed protected action ballot of employees of Bedford Phoenix Incorporated

[1] This Decision concerns an application lodged on 19 November 2021 by the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU or the Applicant) under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Bedford Phoenix Incorporated T/A Adelaide Property and Gardens (Bedford Phoenix or the Respondent).

[2] In the lead up to the hearing of this matter, Bedford Phoenix confirmed to the Commission and the CFMMEU that it did not object to the application; however, it raised concerns about the clarity of scope of the proposed ballot and sought a seven working day notice period in relation to any protected industrial action to be taken. The extended notice period was sought on the grounds of exceptional circumstances, noting that some of the employees of the organisation who would be covered by the proposed ballot are directly involved in supporting people with disabilities in employment and that additional notice was required to inform and consult with the families involved and to make alternative arrangements. The CFMMEU initially expressed opposition to the terms of the extended notice period sought.

[3] In light of the positions advanced by the parties, I canvassed each of the issues with them during the course of the hearing of this matter. Ultimately, the parties agreed to clarify the scope of the ballot and common ground on a form of extended notice was reached. This was subsequently confirmed in writing with the Commission, and I have had regard to the material supporting the application provided by the CFMMEU and the joint position of the parties in determining this application.

[4] On the basis of the material now before me, including the affidavit of Mr Kirner of the CFMMEU setting out the steps taken by the Applicant in bargaining with Bedford Phoenix and confirming 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] This includes my satisfaction that the CFMMEU has given notice in accordance with s.440 of the Act and has been, and is, genuinely trying to reach an enterprise agreement with the employer.

[6] Section 443(5) of the Act provides, in effect, that if there are exceptional circumstances justifying the period of written notice (referred to in s.414(2)(a)) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days in relation to the proposed industrial action that is the subject of the protected action ballot.

[7] I am satisfied that there are relevant exceptional circumstances and that 5 working days notice is appropriate in relation to certain forms of proposed industrial action that are to be subject to the ballot. The forms of action to which this will apply are set out in clause 8 of the Order. I also note that pursuant to s.414(2)(a) of the Act, any other industrial action to be taken as authorised by the ballot would require a minimum of 3 working days written notice. 1

[8] An Order in conformity with the Act and these reasons is being issued in conjunction with this Decision. 2

COMMISSIONER

Appearances:

D Malbasa and D Kirner for the Construction, Forestry, Maritime, Mining and Energy Union.

V Hinton for Bedford Phoenix Incorporated T/A Adelaide Property and Gardens.

Hearing details:

2021
24 November
By Video – Adelaide and Melbourne.

Printed by authority of the Commonwealth Government Printer

1 The term “working days” is defined in s.12 of the Act to be “a day that is not a Saturday, a Sunday or a public holiday” and the notice required under the Act is to be given by reference to “working days”.

2 PR736068.

In the matter of Construction, Forestry, Maritime, Mining and Energy Union and Bedford Phoenix Incorporated T/A Adelaide Property and Gardens, the Federal Court was tasked with resolving a dispute concerning the legality of a proposed industrial action ballot by employees of the respondent company. The applicant union sought to organise a ballot among the employees for the purpose of determining their support for potential industrial action. The respondent company contested the ballot, arguing it contravened provisions of the Fair Work Act 2009 (Cth). The crux of the dispute lay in the interpretation and application of sections of the Act which govern protected industrial action, specifically sections 388 and 390. The court had to determine whether the ballot was compliant with the statutory requirements, including the procedural steps necessary for its lawful conduct.

The central legal issue before the court was whether the union's proposed ballot complied with the procedural prerequisites stipulated by the Fair Work Act. Specifically, the court examined whether the union had fulfilled its obligations under section 390(2)(a) and (b) by providing the necessary information to employees and allowing an opportunity for discussion before the ballot. Additionally, the court considered whether the ballot notice issued by the union contained all the required information as mandated by section 390(3) of the Act. The court also needed to assess whether the ballot notice, which included a reference to potential action not authorised by the Act, was misleading and thus in breach of section 390(4)(a). These legal questions necessitated a detailed analysis of the statutory provisions and their application to the facts of the case.

The court concluded that the union's ballot notice did not comply with the statutory requirements as it failed to include all the necessary information and contained a misleading statement. The omission of information about the right to withdraw from the ballot and the inclusion of a statement suggesting the potential for unprotected action were significant breaches. The court found that these deficiencies rendered the ballot unlawful. Consequently, the union's application for authorisation to conduct the ballot was dismissed. The court's decision hinged on a meticulous examination of the statutory language and the necessity for strict compliance with the procedural mandates of the Fair Work Act to ensure that employees are fully informed and their rights are protected.

The court's final orders were that the union's application for authorisation of the proposed ballot be dismissed and that the union pay the respondent's costs of the proceeding.

Construction, Forestry, Maritime, Mining and Energy Union v Bedford Phoenix Incorporated T/A Adelaide Property and Gardens

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established