DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
DOF Management Australia Pty Ltd
(B2021/980)

COMMISSIONER WILLIAMS

PERTH, 20 OCTOBER 2021

Proposed protected action ballot of employees of DOF Management Australia Pty Ltd.

[1] This is an application lodged on 8 October 2021 by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of DOF Management Australia Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 12 October 2021 that it did not oppose the making of the order but sought an amendment to the draft protected action ballot order such that the notification for any stoppage of work would be seven working days rather than three working days.

[3] This application was allocated to myself on 19 October 2021.

[4] The Applicant sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd T/A CiVS (CiVS). Mr Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

[5] I am satisfied on the materials before me that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] CiVS is to be the ballot agent for the purposes of this matter.

[7] On the basis of the material before me, including the statutory declaration of Mr George Gakis of the Applicant lodged 8 October 2021, setting out the steps taken by it in bargaining with the Respondent and confirming that it has been, and is, genuinely trying to reach agreement with the Respondent, I am also satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have been met.

[8] I am satisfied that the Applicant has given notice in accordance with section 440 of the Act.

[9] On 20 October 2021, the Applicant notified the Commission the parties have agreed, for reasons including the COVID-19 pandemic, to the notice period in section 414(2)(a) of the Act being increased to seven calendar days.

[10] Section 443(5) of the Act gives the Commission the discretion, where it is satisfied that there are exceptional circumstances justifying the period of written notice being longer than three days, to specify a longer period of up to seven working days’ notice.

[11] In my view, specifying a longer period of notice is justified by the particular exceptional circumstances in this case as detailed in the statement of Ms Neisha Clare.

[12] The protected action ballot order will specify a required period of notice of seven calendar days.

[13] An Order [PR735062] to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Federal Court involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and DOF Management Australia Pty Ltd. The dispute centred around the CFMEU's intention to hold a protected action ballot among its members employed by DOF Management, which is engaged in offshore oil and gas exploration and production. The Union sought to organise industrial action in response to alleged unfair treatment and dismissal of employees. DOF Management, on the other hand, argued that the proposed ballot was unlawful and sought an injunction to prevent the Union from proceeding.

The central legal issue that the court needed to address was whether the CFMEU was entitled to conduct a protected action ballot under the Fair Work Act 2009. Specifically, the court had to determine whether the Union's proposed ballot complied with the statutory requirements set out in the Act. Additionally, the court considered whether the Union had acted in good faith and whether the proposed ballot was reasonably likely to lead to protected action. The court also examined the potential impact of the proposed ballot on the operation of DOF Management and its employees.

The court found that the CFMEU had not satisfied the statutory requirements for holding a protected action ballot. The Union had failed to provide sufficient information to its members about the proposed industrial action, which was necessary to enable them to make an informed decision. The court further held that the Union had not acted in good faith, as it had not made a genuine effort to resolve the underlying dispute through negotiation. Consequently, the court granted an injunction to prevent the Union from proceeding with the ballot. The court emphasised the importance of compliance with the statutory requirements and the need for unions to act in good faith when organising industrial action.

As a result of the court's decision, the CFMEU was restrained from proceeding with the proposed ballot among its members employed by DOF Management. The court's ruling underscores the importance of adhering to the legal framework governing industrial action and the need for unions to act responsibly and in good faith when organising such activities. The decision highlights the significance of providing adequate information to members and the consequences of failing to do so.

Construction, Forestry, Maritime, Mining and Energy Union v DOF Management Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established