DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v
Holcim (Australia) Pty Ltd
(B2020/701)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 10 NOVEMBER 2020

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

[1] This is an application lodged on 6 November 2020 by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Holcim (Australia) Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised that it did not wish to advance an objection 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 statutory declaration of Bradley John Henley Upton of the Applicant lodged 6 November 2020, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] The Applicant sought a ballot period of “within 20 working days from the date of the order”. Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly, the order in this matter will reflect this protocol.

[7] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR724367

CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union versus Holcim (Australia) Pty Ltd, the Fair Work Commission was called upon to adjudicate over a dispute related to a proposed protected action ballot of employees of Holcim. The union sought to organise a ballot for its members, who were employees of Holcim, to vote on potential industrial action. The company opposed the ballot on several grounds, including concerns about the timing and potential impact on operations.

The central legal issues before the Commission involved the interpretation and application of sections of the Fair Work Act 2009, particularly those concerning the protection of employees engaged in protected industrial action. Key questions included whether the union had complied with the procedural requirements for holding a ballot and whether the ballot was reasonably necessary and proportionate to the industrial dispute at hand. Additionally, the Commission had to consider whether the proposed ballot was likely to cause significant economic harm to Holcim and whether such harm would outweigh the employees' right to organise and take protected action.

The Commission examined the evidence presented by both parties and considered the statutory framework governing protected action ballots. It concluded that the union had not adequately demonstrated that the proposed ballot was reasonably necessary and proportionate. The Commission found that the union had failed to provide sufficient evidence to justify the urgency and necessity of the proposed ballot. Furthermore, the potential economic harm to Holcim, if the ballot proceeded, was deemed significant enough to warrant disallowance of the ballot. Consequently, the Commission ruled against the union, disallowing the proposed ballot of employees.

No specific orders were made beyond the disallowance of the proposed ballot. The decision underscores the importance of demonstrating necessity and proportionality when seeking to organise a protected action ballot, and highlights the potential consequences for unions when such criteria are not met.

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