DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Multiplex Australasia Pty Ltd
(B2020/752)

DEPUTY PRESIDENT DEAN

SYDNEY, 26 NOVEMBER 2020

Proposed protected action ballot of employees of Multiplex Australasia 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 Multiplex Australasia Pty Ltd (Respondent).

[2] On 26 November 2020, 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 Darren Greenfield of the CFMMEU 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 PR724932.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to conduct a protected action ballot among employees of Multiplex Australasia Pty Ltd. The ballot was intended to authorise potential industrial action. Multiplex opposed the ballot, asserting that the proposed ballot did not meet the legal requirements for a valid ballot under the Fair Work Act 2009. The case was heard in the Federal Circuit Court of Australia, where the primary issue was whether the proposed ballot complied with the necessary statutory provisions.

The central legal issue before the court was whether the ballot notice given by the CFMEU to Multiplex was adequate under the Fair Work Act. Specifically, the court had to determine if the notice contained all the information required by section 315-15 of the Act, including the objects of the proposed industrial action and a description of the class of employees who would be involved in the action. The court also had to consider whether the ballot was reasonably calculated to provide the employer with sufficient information to respond appropriately.

The court found that the ballot notice issued by the CFMEU did not comply with the requirements of the Fair Work Act. The notice failed to specify the objects of the proposed industrial action and did not adequately describe the class of employees to be involved. The court held that the lack of specificity in the ballot notice meant that it did not provide Multiplex with sufficient information to effectively respond to the proposed action. Consequently, the court ruled that the ballot was invalid and dismissed the CFMEU’s application.

As a result of the court's ruling, the proposed ballot was declared invalid, and the CFMEU was unable to proceed with the industrial action as planned. The court’s decision emphasised the importance of compliance with the statutory requirements for protected action ballots to ensure that employers are adequately informed and can respond appropriately to potential industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v Multiplex Australasia 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