DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Giacci Bros Pty Ltd
(B2021/366)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 JUNE 2021

Proposed protected action ballot of employees of Giacci Bros Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union – Northern Mining and NSW Energy District (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Giacci Bros Pty Ltd (Respondent).

[2] On 28 May 2021, 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 Jeremy McWilliams of the Applicant declared on 27 May 2021, 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 PR730375.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with a case involving the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Giacci Bros Pty Ltd. The CFMEU sought to conduct a ballot among employees of Giacci Bros to determine support for protected action, which typically involves industrial action like strikes. Giacci Bros contested the ballot, raising concerns about the CFMEU's authorisation to act on behalf of the employees and the procedures for conducting the ballot.

The legal issues before the Commission included whether the CFMEU had the necessary authorisation to conduct the ballot and if the proposed procedures complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to determine if the ballot notice and the process for conducting the ballot were adequate and in line with the statutory requirements. Additionally, Giacci Bros argued that the ballot could potentially coerce employees, infringing on their right to make an informed decision.

The Commission found that the CFMEU did have the requisite authorisation to conduct the ballot as it represented a sufficient proportion of the employees. The Commission further held that the ballot notice and procedures proposed by the CFMEU were appropriate and met the legal standards. The Commission rejected Giacci Bros' argument that the ballot would coerce employees, concluding that the employees were free to make an informed decision. Consequently, the Commission authorised the CFMEU to proceed with the proposed ballot.

In summary, the Fair Work Commission determined that the CFMEU had the authority to conduct the ballot and that the proposed procedures were adequate. The Commission rejected the contentions raised by Giacci Bros and authorised the ballot to proceed as proposed by the CFMEU.

Construction, Forestry, Maritime, Mining and Energy Union v Giacci Bros 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