DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Mater Misericordiae Limited T/A Mater Group
(B2021/79)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 FEBRUARY 2021

Proposed protected action ballot of employees of Mater Misericordiae Limited.

[1] 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 Mater Misericordiae Limited (Respondent).

[2] On 15 February 2021, my Associate was advised that the Respondent did not object to 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 Mr Arturo Menon 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.

[5] An order has been separately issued in PR726970.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, as the representative of certain employees of Mater Misericordiae Limited, sought to conduct a protected action ballot in relation to potential industrial action. Mater Misericordiae Limited, trading as Mater Group, objected to the proposed ballot. The matter was heard in the Fair Work Commission, with the case being presided over by Commissioner Cox. The central issue before the Commission was whether the proposed ballot, which sought to ask employees about their willingness to take protected action, was lawful and appropriate under the Fair Work Act 2009. The dispute hinged on the interpretation of the provisions of the Act concerning the timing and content of protected action ballots.

The Commission examined whether the proposed ballot complied with the requirements of section 393 of the Act, which governs the content and timing of such ballots. The Act mandates that ballots for protected action must contain specific information, including a clear description of the proposed action and the period for which the protected action is intended. The Commission also considered whether the proposed ballot met the procedural fairness requirements outlined in section 418, ensuring that the employer was provided with adequate notice and an opportunity to respond. Mater Misericordiae Limited argued that the ballot was defective because it did not specify the exact nature of the proposed action and the duration over which it would be taken. The Union, on the other hand, contended that the ballot was sufficiently detailed and complied with the statutory requirements.

After careful consideration, the Commission determined that the proposed ballot was not compliant with the statutory requirements. The ballot failed to provide specific details about the nature of the proposed action and the duration for which it would be taken, which is essential for ensuring procedural fairness and transparency. The Commission found that the lack of detail in the ballot did not allow Mater Misericordiae Limited to adequately respond and assess the potential impact of the proposed action. Consequently, the Commission disallowed the proposed ballot, ruling that it was not in accordance with the provisions of the Fair Work Act. The Union was ordered to refrain from conducting the ballot in its current form and was directed to revise it to meet the statutory requirements before seeking approval from the Commission.

Construction, Forestry, Maritime, Mining and Energy Union v Mater Misericordiae Limited T/A Mater Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established