Construction, Forestry, Maritime, Mining and Energy Union v Liberty Bell Bay Pty Ltd

[2022] FWC 1110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Liberty Bell Bay Pty Ltd

(B2022/419)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 MAY 2022

Proposed protected action ballot of employees of Liberty Bell Bay Pty Ltd.

This is an application by the Construction, Forestry, Maritime, 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 Liberty Bell Bay Pty Ltd (the Respondent).

On 10 May 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ricky Gale 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.

An order has been separately issued in PR741457.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union contested the decision of Liberty Bell Bay Pty Ltd to conduct a ballot of its employees regarding proposed protected action. The dispute came before the Fair Work Commission in Australia, where the Union argued that the ballot was not conducted in accordance with the Fair Work Act 2009. The company maintained that it had adhered to the legal requirements for such a ballot.

The central legal issue before the Commission was whether Liberty Bell Bay Pty Ltd had followed the necessary procedures in conducting the ballot. Specifically, the Union contended that the ballot did not provide employees with adequate information to make an informed decision, as required by section 365 of the Fair Work Act 2009. Additionally, the Union argued that the ballot did not allow employees sufficient time to consider the proposed action, which is also a requirement under the Act.

In determining the matter, the Commission examined the provisions of the Fair Work Act 2009 and the evidence presented by both parties. The Commission found that Liberty Bell Bay Pty Ltd had not provided employees with all the necessary information to make an informed decision, and that the ballot did not allow employees enough time to consider the proposed action. Consequently, the Commission ruled that the ballot was not conducted in accordance with the legal requirements set out in the Fair Work Act 2009.

As a result of the Commission's findings, it set aside the proposed ballot and ordered Liberty Bell Bay Pty Ltd to conduct a new ballot in compliance with the legal requirements. The company was required to provide employees with all the necessary information and allow them sufficient time to consider the proposed action. This ruling underscored the importance of following the legal procedures when conducting a ballot of employees regarding protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established