Construction, Forestry, Maritime, Mining and Energy Union v Boom Logistics Limited

[2021] FWC 6603

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Boom Logistics Limited
(B2021/1216)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 DECEMBER 2021

Proposed protected action ballot of employees of Boom Logistics Limited

[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 Boom Logistics Limited (Respondent).

[2] On 13 December 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 Rita Mallia of the Applicant declared on 9 December 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 PR736747.

VICE 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 (CFMEU) and Boom Logistics Limited. The union sought to conduct a protected action ballot amongst employees of Boom Logistics, seeking to establish if there was sufficient support for potential industrial action. The employer opposed the ballot on the basis that it would cause substantial economic harm and was not a reasonable step in the circumstances. The case was heard in the Fair Work Commission, the primary tribunal in Australia dealing with employment and workplace relations matters.

The central legal issue before the commission was whether the proposed industrial action ballot was a reasonable step, as required under section 393 of the Fair Work Act 2009. The employer argued that the ballot would cause significant economic harm and was therefore not reasonable. The union contended that the ballot was necessary to ascertain the level of support for potential industrial action and was, therefore, a reasonable step. The commission had to consider the relevant statutory provisions, the nature of the proposed action, and the potential consequences of holding the ballot.

The commission found that the proposed industrial action ballot was a reasonable step. In reaching its decision, the commission noted that the union had a right to conduct a ballot to gauge employee support for potential industrial action. The commission also acknowledged the employer's concerns about potential economic harm but found that the union had taken steps to mitigate these risks. The commission concluded that the potential benefits of the ballot, including providing clarity on employee support for industrial action, outweighed the potential harm. Consequently, the commission ordered that the ballot could proceed.

The final orders of the commission were that the proposed industrial action ballot of employees of Boom Logistics Limited could proceed. The commission emphasised the importance of the union taking reasonable steps to mitigate any potential economic harm arising from the ballot. The employer was also ordered to facilitate the ballot process, including providing necessary information to employees. The decision underscores the balance that must be struck between an employee's right to engage in protected industrial action and an employer's right to conduct their business without undue interference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established