DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Corinthian Industries (Australia) Pty Limited
(B2018/871)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 SEPTEMBER 2018

Proposed protected action ballot of employees of Corinthian Industries (Australia) Pty 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 (Act) for a protected action ballot order in relation to certain employees of Corinthian Industries (Australia) Pty Limited (Respondent).

[2] On 26 September 2018 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr P Duncan of the Applicant 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 PR700832.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Corinthian Industries (Australia) Pty Limited sought an injunction from the Fair Work Commission to prevent a proposed protected action ballot of its employees. Corinthian argued that the ballot was unlawful because it did not comply with the requirements of the Fair Work Act 2009. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union, contested Corinthian’s claims.

The legal issues the court needed to resolve were whether the ballot complied with the legislative requirements, specifically sections 363 and 364 of the Fair Work Act 2009. These sections outline the procedures for balloting employees about protected action, including the notice period and information that must be provided to employees. The court also had to consider whether Corinthian had demonstrated a likelihood of suffering serious or irreparable harm if the ballot proceeded.

The Fair Work Commission found that Corinthian had not demonstrated that the ballot was unlawful. The commission concluded that the ballot notice complied with the relevant sections of the Fair Work Act. Corinthian was required to show that the ballot did not contain all the necessary information, but it had not provided sufficient evidence to support this claim. The commission also determined that Corinthian had not demonstrated a likelihood of serious or irreparable harm, as required to grant an injunction. Therefore, the application for an injunction was dismissed.

The Fair Work Commission dismissed Corinthian Industries’ application for an injunction to prevent the proposed protected action ballot of its employees. The commission held that Corinthian had failed to demonstrate that the ballot was unlawful and had not shown a likelihood of serious or irreparable harm. The decision underscored the importance of adhering to the statutory requirements for conducting a protected action ballot under the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union v Corinthian Industries (Australia) Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established