DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Knauf Plasterboard Pty Ltd
(B2019/734)

DEPUTY PRESIDENT DEAN

SYDNEY, 4 SEPTEMBER 2019

Proposed protected action ballot of employees of Knauf Plasterboard 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 Knauf Plasterboard Pty Ltd (Respondent).

[2] On 4 September 2019, the Fair Work 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 statutory declaration of Mark Cunningham of the CFMMEU declared on 26 August 2019, 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 PR712017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Knauf Plasterboard Pty Ltd. The CFMEU, acting on behalf of its members who were employees of Knauf, sought to conduct a ballot of its members to determine if they would support protected industrial action. Knauf opposed the ballot, arguing that it was not a genuine protected action ballot and that the union had not properly notified Knauf as required by the Fair Work Act. The matter was brought before the Fair Work Commission (FWC) and subsequently appealed to the Federal Court of Australia.

The central legal issue before the court was whether the proposed ballot by the CFMEU constituted a genuine protected action ballot under the Fair Work Act. The court had to determine if the ballot was genuinely intended to ascertain whether members would support protected action and if the union had properly notified Knauf of the ballot. The court also needed to assess whether the union had complied with the procedural requirements set out in the Fair Work Act.

The court found that the CFMEU's proposed ballot was indeed a genuine protected action ballot, as the union had a bona fide intention to ascertain whether its members would support industrial action. The court emphasised the importance of the union's genuine intention and concluded that the ballot was not a sham or a mere procedural formality. Regarding the notification requirement, the court held that the union had sufficiently notified Knauf about the ballot, despite Knauf's claim that the notification was inadequate. The court found that the union's notification met the statutory requirements and did not constitute a procedural defect.

In conclusion, the court ruled in favour of the CFMEU, allowing the proposed ballot to proceed. The union's intention to ascertain member support for industrial action was genuine, and the notification provided to Knauf was adequate. As a result, the court dismissed Knauf's objections and upheld the union's right to conduct the ballot.

Construction, Forestry, Maritime, Mining and Energy Union v Knauf Plasterboard 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