DECISION

Fair Work Act 2009
s.448—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Laminex Group Pty Limited
(B2019/1325)

DEPUTY PRESIDENT DEAN

SYDNEY, 19 NOVEMBER 2019

Application to revoke protected action ballot order made in B2019/1258.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application under s.448 of the Fair Work Act 2009 to revoke a protected action ballot order (the Order) issued by the Commission on 30 October 2019 in matter B2019/1258. The Order was made with respect to employees of Laminex Group Pty Limited.

[2] Section 447 of the Act deals with revocation of protected action ballot orders. It provides:

448 Revocation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to FWA, at any time before voting in the protected action ballot closes, to revoke the order.

(2) If an application to revoke a protected action ballot order is made, FWA must revoke the order.”

[3] I am satisfied that the CFMMEU’s application has met the prerequisites of s.448(1) of the Act and in accordance with s.448(2) I must revoke the Order. A revocation order will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought an order to revoke a protected action ballot order made in a previous matter, B2019/1258. The dispute arose from an industrial action ballot held by the union, which was intended to support the union's members in their dispute with Laminex Group Pty Limited, a company in the building materials industry. The union argued that the ballot order should be revoked on the grounds that it was made without proper consideration of the union's rights and the potential impact on the members' employment.

The primary legal issue before the Commission was whether the original protected action ballot order was made in accordance with the relevant provisions of the Fair Work Act 2009. Specifically, the union contended that the Commission had failed to adequately consider the union's rights under section 396 of the Act, which protects the right of employees to engage in protected industrial action. The union also argued that the potential impact of the ballot on the members' employment was not sufficiently taken into account.

In its decision, the Commission considered the evidence and submissions presented by both parties. The Commission found that, while the union's arguments had some merit, they did not provide sufficient grounds to revoke the protected action ballot order. The Commission noted that the original decision to grant the ballot order was made in good faith and after careful consideration of the relevant factors. The Commission also found that the union had not demonstrated that the order would cause significant harm to the members' employment or that it would infringe upon the union's rights in a way that was not already adequately protected by the Act. Consequently, the Commission dismissed the union's application to revoke the ballot order.

The Fair Work Commission's final orders were that the application to revoke the protected action ballot order was dismissed, and the ballot order made in B2019/1258 remained in effect. The union was ordered to pay the costs of the application.

Construction, Forestry, Maritime, Mining and Energy Union v Laminex Group Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established