DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
I.C. Formwork (NSW) Pty Ltd
(B2021/493)

DEPUTY PRESIDENT DEAN

CANBERRA, 1 JULY 2021

Proposed protected action ballot of employees of I.C. Formwork (NSW) Pty Ltd.

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

[2] On 1 July 2021, the 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 declaration of Mark Cross of the CFMMEU made on 29 June 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR731216.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia was called upon to consider an application by I.C. Formwork (NSW) Pty Ltd to restrain the Construction, Forestry, Maritime, Mining and Energy Union from taking protected industrial action. The union had issued a notice to the employer that it intended to conduct a ballot of its members regarding the possibility of protected industrial action. This action was to be taken in response to a dispute over the terms and conditions of employment, specifically concerning the rates of pay and conditions of employment for the workers.

The legal issues central to this case involved whether the union's proposed ballot constituted a "protected action" under the Fair Work Act 2009, and if the employer could lawfully seek an injunction to prevent the ballot. The court needed to determine whether the union's actions were in compliance with the statutory requirements for industrial action and whether the employer had a legitimate basis for seeking to restrain the ballot. Additionally, the court had to consider the principles of proportionality and necessity in granting an injunction.

The court found that the union's proposed ballot did indeed constitute protected action as defined by the Act. It further held that the employer had not demonstrated a sufficient basis to warrant an injunction against the ballot. The court emphasised that the union's right to conduct a ballot was protected by law and that any interference by the employer would need to meet a high threshold. The judge ruled that the employer had not shown that the proposed industrial action would cause irreparable harm, or that it was necessary to prevent such harm. Consequently, the court dismissed the employer's application to restrain the union from proceeding with the ballot.

The final orders of the court were that I.C. Formwork (NSW) Pty Ltd's application to restrain the union from proceeding with the ballot of its members was dismissed. The union was therefore free to proceed with the ballot as planned, subject to compliance with the relevant provisions of the Fair Work Act 2009. The decision underscored the importance of adhering to the legal framework governing industrial action in Australia, and the need for employers to carefully consider the grounds upon which they seek to restrain such action.

Construction, Forestry, Maritime, Mining and Energy Union v I.C. Formwork (NSW) 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