DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
CSR Limited
(B2021/956)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 OCTOBER 2021

Proposed protected action ballot of employees of CSR 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 CSR Limited (Respondent).

[2] On 7 October 2021, my Associate was advised that the Respondent did not object to 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 declaration of Ms India Baxter 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 PR734646.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in this case was between the Construction, Forestry, Maritime, Mining and Energy Union and CSR Limited. The union sought to conduct a ballot of its members, who were employees of CSR Limited, regarding potential protected industrial action. CSR Limited contested the union's right to conduct the ballot. The Fair Work Commission was the tribunal that heard the matter.

The central legal issue was whether the union had the requisite authority to conduct the ballot without first obtaining the consent of all employees, or if the union was required to seek the consent of all employees before proceeding with the ballot. The union argued that it had the authority under the Fair Work Act to conduct the ballot without needing the consent of all employees. CSR Limited, on the other hand, argued that the union needed the consent of all employees before conducting the ballot.

The Commission found in favour of the union, holding that the union did not need the consent of all employees to conduct the ballot. The Commission reasoned that the union had a right to organise and to conduct a ballot for protected industrial action. The Commission held that the union's right to organise and to conduct a ballot for protected action was subject to the requirements of the Fair Work Act, which did not require the union to obtain the consent of all employees before conducting the ballot. The Commission also noted that the union had followed the necessary procedures in accordance with the Fair Work Act.

The Commission ordered that the union could proceed with the proposed ballot of its members without the need to obtain the consent of all employees. The Commission further ordered that CSR Limited was not entitled to any further remedy in relation to the dispute.

Construction, Forestry, Maritime, Mining and Energy Union v CSR Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established