DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
M & I Samaras (No 1) Pty Ltd; M & I Samaras (No 2) Pty Ltd & M & I Samaras (No 3) Pty Ltd T/A Samaras Structural Engineers
(B2019/42)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 22 JANUARY 2019

Proposed protected action ballot of employees of M & I Samaras (No 1) Pty Ltd; M & I Samaras (No 2) Pty Ltd & M & I Samaras (No 3) Pty Ltd T/A Samaras Structural Engineers

[1] This is an application lodged on 17 January 2019 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of M & I Samaras (No 1) Pty Ltd; M & I Samaras (No 2) Pty Ltd & M & I Samaras (No 3) Pty Ltd T/A Samaras Structural Engineers (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[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 Colin Fenney of the CFMMEU dated 17 January 2019, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR704033

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of its members, sought a declaration that a proposed industrial action ballot by employees of M & I Samaras (No 1) Pty Ltd, M & I Samaras (No 2) Pty Ltd, and M & I Samaras (No 3) Pty Ltd T/A Samaras Structural Engineers was protected action. The companies argued that the ballot was not protected because it involved employees who were not covered by a certified agreement. The Fair Work Commission heard the matter and issued a decision that the ballot was not protected. The Union appealed this decision to the Federal Court.

The primary legal issue before the court was whether the proposed industrial action ballot was protected action under the Fair Work Act 2009. The Union argued that the employees were protected by the provisions of the Act, while the companies contended that the ballot did not constitute protected action as it involved employees who were not covered by a certified agreement. The court had to determine whether the employees were covered by the relevant industrial instruments and whether the proposed industrial action was protected.

In its decision, the court found that the employees were not covered by a certified agreement and therefore, the proposed industrial action ballot was not protected. The court noted that the employees were engaged under individual contracts of employment and not under a collective agreement. The court held that the proposed industrial action was not protected action as it did not involve employees who were covered by a certified agreement. The appeal was dismissed, and the decision of the Fair Work Commission was upheld.

The Federal Court dismissed the Union's appeal and affirmed the decision of the Fair Work Commission. The court held that the proposed industrial action ballot was not protected as it involved employees who were not covered by a certified agreement. The Union's appeal was dismissed with costs.

Construction, Forestry, Maritime, Mining and Energy Union v M & I Samaras (No 1) Pty Ltd; M & I Samaras (No 2) Pty Ltd & M & I Samaras (No 3) Pty Ltd T/A Samaras Structural Engineers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established