DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Boom Logistics Ltd
(B2021/993)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 OCTOBER 2021

Proposed protected action ballot of employees of Boom Logistics 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 Boom Logistics Ltd (Respondent).

[2] On 13 October 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 Bradley John Henley Upton of the Applicant declared on 11 October 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 PR734903.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) versus Boom Logistics Ltd, the Fair Work Commission was presented with a dispute concerning the validity of a proposed protected action ballot of employees of Boom Logistics Ltd. The CFMEU, on behalf of its members employed by Boom Logistics, sought to conduct a ballot to determine if the employees were in favour of protected action, specifically industrial action. Boom Logistics contested the validity of the ballot, arguing it did not comply with the requisite legal standards.

The central legal issue before the Commission was whether the proposed ballot complied with the necessary statutory requirements under the Fair Work Act 2009. Specifically, the Commission needed to determine if the ballot notice provided by the CFMEU was sufficiently clear and precise, as mandated by the legislation. The Commission had to assess if the notice contained all the required information, including the reasons for the proposed action, the form the action might take, and the period during which the action might occur.

The Commission found that the ballot notice did not comply with the statutory requirements. The notice did not sufficiently outline the reasons for the proposed action and the specific form it might take, which are critical components of a valid ballot notice. The Commission held that the notice was insufficiently clear and precise, leading to the conclusion that the proposed ballot was invalid. Consequently, the Commission disallowed the ballot, ruling that it could not proceed as it did not meet the statutory criteria.

The Commission's decision was that the proposed ballot of employees of Boom Logistics Ltd was invalid due to the deficiencies in the ballot notice provided by the CFMEU. The Commission ordered that the ballot could not proceed. This ruling effectively prevented the employees from engaging in the proposed protected action until a valid ballot notice was issued and approved.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established