DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
City of Rockingham
(B2021/772)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 SEPTEMBER 2021

Proposed protected action ballot of employees of City of Rockingham

[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 City of Rockingham (Respondent).

[2] On 13 September 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 Michelle Julie Sheehy of the Applicant declared on 10 September 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 PR733994.

VICE PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought a determination that employees of the City of Rockingham could lawfully hold a ballot for protected action. The dispute arose from disagreements over the terms of employment and workplace conditions. The City of Rockingham opposed the ballot, arguing it was not in compliance with relevant legislative provisions. The Commission was tasked with determining whether the proposed ballot met the legal requirements set out in the Fair Work Act 2009. Specifically, the court needed to assess whether the ballot notice complied with section 391 of the Act, which governs the process for ballots in relation to protected industrial action.

The Fair Work Commission examined whether the ballot notice was in the prescribed form and contained all necessary information as required by section 391(2) of the Act. It considered whether the notice was given to the relevant employees and whether the ballot was conducted in a manner that complied with the statutory provisions. The Commission also evaluated the City of Rockingham's arguments regarding the timing and content of the ballot notice. Ultimately, the Commission found that the ballot notice was in compliance with the Act, and therefore, the employees were entitled to proceed with the ballot. The Commission determined that the City of Rockingham's objections were without merit and dismissed the application.

The Fair Work Commission ordered that the proposed ballot of employees of the City of Rockingham could proceed in accordance with the Fair Work Act 2009. The decision confirmed that the ballot notice was valid and that the employees had the right to hold the ballot as proposed. This ruling provided clarity on the legal requirements for protected action ballots and affirmed the rights of the employees to engage in lawful industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v City of Rockingham

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established