DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Hyne & Son Pty Ltd T/A Hyne Timber
(B2019/480)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 20 JUNE 2019

Proposed protected action ballot of employees of Hyne & Son Pty Ltd T/A Hyne Timber.

[1] This is an application by the Construction, Forestry, 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 Hyne & Son Pty Ltd T/A Hyne Timber (Respondent).

[2] On 20 June 2019, 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 Grant White 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 PR709553.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to conduct a protected action ballot of employees of Hyne & Son Pty Ltd T/A Hyne Timber. The company opposed the ballot on the basis that it would cause significant economic harm to the business. The dispute came before the Fair Work Commission (FWC), which is the tribunal established under the Fair Work Act 2009 to resolve workplace disputes.

The central legal issue before the FWC was whether the proposed ballot constituted a protected action under the Act, and if so, whether the harm alleged by the company outweighed the employees’ rights to engage in protected action. The CFMEU argued that the ballot was necessary to inform the employees about potential industrial action, while Hyne & Son contended that the ballot would irreparably harm its business operations and reputation, potentially leading to job losses.

The FWC determined that the proposed ballot did constitute a protected action as it was an essential step in the process of informing employees about potential industrial action. However, the tribunal also found that the economic harm alleged by Hyne & Son was significant and could not be adequately mitigated. The FWC concluded that the potential harm to the company outweighed the employees' right to conduct the ballot, and thus, the ballot was not permitted. The decision highlighted the importance of balancing the rights of employees to engage in protected action with the potential economic impact on employers.

As a result of the FWC’s decision, the CFMEU was prohibited from conducting the proposed ballot of Hyne & Son’s employees. This decision underscores the careful consideration required by the FWC in balancing the rights of employees to engage in protected action with the potential economic consequences for employers.

Construction, Forestry, Maritime, Mining and Energy Union v Hyne & Son Pty Ltd T/A Hyne Timber

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established