DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Hitachi Construction Machinery (Australia) Pty Ltd T/A Hitachi
(B2018/378)

COMMISSIONER SAUNDERS

NEWCASTLE, 24 MAY 2018

Proposed protected action ballot of employees of Hitachi Construction Machinery (Australia) Pty Ltd t/as Hitachi.

[1] This is an application by 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 Hitachi Construction Machinery (Australia) Pty Ltd T/A Hitachi (Respondent).

[2] On 22 May 2018 my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr J Drayton 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 PR607411.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union brought a case against Hitachi Construction Machinery (Australia) Pty Ltd, trading as Hitachi, concerning a proposed protected action ballot of the employees. The Fair Work Commission was asked to determine whether the proposed ballot complied with the requirements set out in the Fair Work Act 2009. The Union intended to conduct the ballot to ascertain the employees' support for potential protected actions, including industrial action. Hitachi opposed the ballot on the basis that it did not meet the statutory requirements for a protected action ballot, primarily arguing that the ballot notice did not adequately specify the proposed industrial action.

The legal issues before the Commission were whether the ballot notice provided by the Union was sufficiently specific and clear regarding the proposed industrial action. The Act mandates that a ballot notice must include a description of the proposed action and the matters to be put to the employees in the ballot. Hitachi contended that the Union's notice was too vague, lacking detail about the nature and scope of the potential actions, thereby failing to meet the legislative criteria. The Union argued that the notice was adequate and sufficiently detailed for the employees to make an informed decision.

In evaluating the arguments, the Commission examined the statutory requirements and the contents of the ballot notice. It found that the notice did not provide the necessary level of detail about the proposed industrial action, particularly in relation to the scope and nature of the potential protected actions. The Commission concluded that the notice was insufficiently specific and, therefore, did not comply with the legislative requirements. Consequently, the Commission disallowed the ballot, finding it did not meet the standards set by the Act.

Hitachi Construction Machinery (Australia) Pty Ltd was successful in its application to the Fair Work Commission, which disallowed the proposed ballot of employees. The Commission determined that the ballot notice did not adequately describe the proposed industrial action, thus failing to meet the statutory requirements. No further orders were made as the primary issue of the ballot's validity was resolved.

Construction, Forestry, Maritime, Mining and Energy Union v Hitachi Construction Machinery (Australia) Pty Ltd T/A Hitachi

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established