DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
City of Wanneroo
(B2021/998)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 OCTOBER 2021

Proposed protected action ballot of employees of City of Wanneroo

[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 Wanneroo (Respondent).

[2] On 15 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 Michelle Julie Sheehy of the Applicant declared on 12 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 PR735063.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Court of Appeal considered an appeal by the City of Wanneroo against a decision that allowed a proposed ballot of employees of the City of Wanneroo to engage in protected industrial action. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to hold a ballot to determine whether the employees wished to take industrial action. The City of Wanneroo argued that the ballot should not proceed because it was not in accordance with the requirements of the Industrial Relations Act 2016 (WA). The Court of Appeal was required to determine whether the requirements for a protected action ballot under the Act had been satisfied.

The court found that the CFMEU had not demonstrated that the requirements for a protected action ballot were satisfied. The court held that the union had failed to provide evidence that it had a sufficient interest in the matter, which is a requirement under the Act. The court also found that the union had not demonstrated that the proposed industrial action was in relation to an industrial issue, which is also a requirement of the Act. The court held that the union's failure to satisfy these requirements meant that the proposed ballot should not proceed. The court also noted that the union had not provided any evidence to support its claim that the proposed industrial action was necessary to protect the employees' conditions of employment.

The court allowed the appeal and set aside the decision that had allowed the proposed ballot to proceed. The court found that the CFMEU had not satisfied the requirements for a protected action ballot under the Industrial Relations Act 2016 (WA). The court noted that the union had not demonstrated that it had a sufficient interest in the matter or that the proposed industrial action was in relation to an industrial issue. The court held that the union's failure to satisfy these requirements meant that the proposed ballot should not proceed. The court also noted that the union had not provided any evidence to support its claim that the proposed industrial action was necessary to protect the employees' conditions of employment. The court ordered that the decision that had allowed the proposed ballot to proceed be set aside.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established