DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Fantasea Pty Ltd
(B2019/505)

VICE PRESIDENT CATANZARITI

BRISBANE, 1 JULY 2019

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

[2] On 1 July 2019, the Fair Work Commission was advised that the Respondent does 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 Shane Reside 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 PR709909.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a proposed industrial action ballot of employees of Fantasea Pty Ltd, a company engaged in the manufacturing of underwater cameras for recreational scuba divers. The Construction, Forestry, Maritime, Mining and Energy Union sought authorisation for a protected action ballot, which the employer contested on the grounds that the ballot was not for the purpose of achieving better conditions of employment for the employees. The dispute was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issue the commission had to decide was whether the proposed ballot for protected industrial action met the requirements set out in the Fair Work Act 2009. Specifically, the commission had to determine whether the ballot was for the purpose of achieving better conditions of employment for the employees, a necessary criterion for the ballot to be considered protected action under the Act. This required the commission to examine the nature of the proposed industrial action and its intended purpose.

In its decision, the commission closely examined the union's intentions behind the proposed ballot and its alignment with the statutory objective of improving employees' conditions. The commission found that the union's proposed action was not directly related to achieving better conditions of employment for the employees of Fantasea Pty Ltd, as the union's claims were more broadly focused on industry-wide issues rather than specific employment conditions of the company's workers. Consequently, the commission ruled that the proposed ballot did not satisfy the statutory requirement and therefore could not be authorised as protected action.

The Fair Work Commission's decision effectively prevented the proposed ballot, ensuring that industrial action would not proceed under the guise of protected action when it did not meet the specific statutory criteria. This outcome underscored the importance of aligning proposed industrial actions with the legislative requirements designed to protect the rights of both employers and employees within the Australian industrial relations framework.

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