DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Holcim (Australia) Pty Ltd
(B2020/301)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 JUNE 2020

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

[2] On 3 June 2020, 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 D Vroland 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 PR719910.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) lodged an application seeking authorisation to conduct a protected action ballot among the employees of Holcim (Australia) Pty Ltd. The union aimed to gather support for potential industrial action, citing dissatisfaction with the employer's proposed changes to employment terms and conditions. Holcim opposed the ballot, arguing that the union's proposed ballot was not narrowly tailored and would cause significant operational disruption.

The central legal issues before the Commission were whether the proposed ballot was reasonably required for the purpose of engaging in protected action, and whether the ballot was narrowly tailored to achieve that purpose. The Commission had to assess the union's justification for the ballot and whether the proposed ballot was the least disruptive means to achieve the union's objectives. Holcim contended that the ballot was overly broad and not narrowly tailored, potentially causing significant harm to its operations and the broader economy.

The Commission found that the proposed ballot was reasonably required for the purpose of engaging in protected action. However, it determined that the ballot was not narrowly tailored. The Commission considered the union's evidence and concluded that the ballot, while justified, could be refined to reduce the potential for operational disruption. The Commission ordered modifications to the ballot, including a more specific focus on the issues at hand and a reduction in the number of employees to be balloted. Despite the need for modification, the Commission authorised the modified ballot, acknowledging the union's right to engage in protected action while balancing the employer's operational concerns.

The Commission's final orders included the authorisation of the modified ballot, with specific instructions regarding the scope and timing of the ballot process. The modified ballot was to be conducted in a manner that minimised operational disruption and adhered to the Commission's guidelines for narrowly tailored industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v Holcim (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