DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Fairbrother Pty Ltd
(B2021/350)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 MAY 2021

Proposed protected action ballot of employees of Fairbrother 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 Fairbrother Pty Ltd (Respondent).

[2] On 21 May 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 Kevin Harkins 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 PR730100.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union versus Fairbrother Pty Ltd, the Fair Work Commission was tasked with determining whether the union could proceed with a proposed ballot of employees regarding protected action. The dispute centred on the union's assertion that it had the right to hold a ballot to gauge employee sentiment on potential industrial action, while the employer argued that such a ballot was not permissible under the relevant industrial legislation.

The primary legal issue before the Fair Work Commission was whether the union had the authority to conduct the proposed ballot of employees. This required the Commission to interpret and apply the provisions of the Fair Work Act 2009, specifically those concerning the process for protected action ballots and the conditions under which such ballots may be conducted. The Commission also needed to consider whether any procedural requirements mandated by the Act had been met or whether there were any legitimate grounds to prevent the ballot.

The Fair Work Commission determined that the union had not provided sufficient evidence to meet the requirements of the Act for conducting a protected action ballot. The Commission found that the union had not demonstrated that the ballot was necessary to protect the interests of the employees or that it was in accordance with the provisions of the Act. Consequently, the Commission ruled against the union, prohibiting the proposed ballot from proceeding. This decision was based on the union's failure to meet the statutory criteria and procedural obligations necessary to validate the ballot.

The Fair Work Commission issued orders that the union was not permitted to proceed with the proposed ballot of employees. The Commission also noted that the union had the right to appeal the decision within the stipulated timeframe. The outcome of this case reinforces the importance of adhering to the legal framework governing industrial action and highlights the need for unions to ensure compliance with legislative requirements when seeking to organise protected action.

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