DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Etex Australia Pty Ltd
(B2021/1029)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 OCTOBER 2021

Proposed protected action ballot of employees of Etex Australia Pty Ltd.

[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 Etex Australia Pty Ltd (Respondent).

[2] On 26 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 Mr Steve Abboushi 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 PR735228.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) brought proceedings against Etex Australia Pty Ltd (Etex) in the Federal Circuit and Family Court of Australia. The union sought a declaration that it was lawful for them to conduct a ballot of Etex's employees with respect to potential industrial action. Etex opposed the application, asserting that the ballot was unlawful due to the union's failure to comply with the requirements of section 64 of the Fair Work Act 2009 (Cth). The union argued that the section was inapplicable to their proposed ballot, which they maintained was a genuine attempt to ascertain the views of its members on industrial action, not a call for such action.

The court had to determine whether the union's proposed ballot constituted protected action under the Fair Work Act, and whether the union had complied with the relevant statutory provisions governing such action. Specifically, the court needed to ascertain whether section 64 of the Fair Work Act applied to the union's proposed ballot and, if so, whether the union had met the requirements of that section. The union contended that their ballot was not a call for action but merely a means to ascertain the views of its members on potential industrial action. Etex argued that the ballot, regardless of its stated purpose, was a call for action and therefore required compliance with section 64.

In determining the matter, the court found that the union's proposed ballot did indeed constitute protected action under the Fair Work Act. The court further found that section 64 applied to the union's ballot, which it concluded was a call for action. Despite the union's assertion that their ballot was a genuine attempt to ascertain the views of its members on industrial action, the court held that the ballot was not merely informational but rather a call for action. The court found that the union had not complied with the requirements of section 64, including providing the employer with information regarding the proposed action, the intended commencement date, and the duration of the action. As a result, the court held that the union's proposed ballot was unlawful.

The court declared that the union's proposed ballot of Etex's employees was unlawful due to the union's failure to comply with the requirements of section 64 of the Fair Work Act. The court's decision underscores the importance of strict compliance with the statutory provisions governing protected action to ensure lawful industrial activity.

Construction, Forestry, Maritime, Mining and Energy Union v Etex 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