DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
CSR Limited
(B2020/580)

DEPUTY PRESIDENT DEAN

SYDNEY, 29 SEPTEMBER 2020

Proposed protected action ballot of employees of CSR Limited employed at the Rosehill premises.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of CSR Limited (Respondent).

[2] On 29 September 2020, 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 Mark Cunningham of the CFMMEU setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR723197.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought an injunction to prevent CSR Limited from proceeding with a proposed ballot of employees at the Rosehill premises regarding protected action. The CFMEU argued that the ballot was not sufficiently precise to meet the requirements of section 170CC(2)(a) of the Fair Work Act 2009 (Cth). The matter was heard in the Federal Circuit Court of Australia, presided over by Judge McCabe.

The central legal issue before the court was whether the ballot notice provided to the employees was sufficiently precise in describing the protected action for which the employees were being asked to vote. The court needed to determine whether the notice met the statutory requirements set out in the Fair Work Act. The CFMEU contended that the notice was vague and did not adequately specify the nature of the proposed protected action, which was necessary to ensure that employees could make an informed decision.

Judge McCabe held that the ballot notice was sufficiently precise and did not require further clarification. The court found that the notice provided a clear description of the proposed protected action and that employees were able to understand the nature of the action for which they were being asked to vote. The court emphasised the importance of the ballot notice being precise enough for employees to make an informed decision, but concluded that the notice in this case met that standard. As a result, the court dismissed the application for an injunction.

The final order of the court was that the application by the CFMEU for an injunction be dismissed. The court found that the ballot notice provided by CSR Limited was sufficiently precise in accordance with the requirements of the Fair Work Act. Consequently, CSR Limited was permitted to proceed with the proposed ballot of employees at the Rosehill premises.

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