DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Noorton Pty Ltd
(B2019/357)

DEPUTY PRESIDENT BOOTH

SYDNEY, 3 MAY 2019

Proposed protected action ballot of employees of Noorton Pty Ltd.

[1] This decision concerns an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Noorton Pty Ltd (Noorton).

[2] On 3 May 2019 a representative of Noorton advised the Chambers of Vice President Catanzariti that it 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 application and conferences I have held with the parties pursuant to matter number B2019/310 I am satisfied that the CFMMEU has been, and is, genuinely trying to reach agreement with Noorton.

[5] I am satisfied that the other requirements for the making of a protected action ballot order have been met.

[6] Accordingly, the Commission is required under s.443 of the Act to make a protected action ballot order.

[7] An Order has been separately issued in PR707952.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Noorton Pty Ltd engaged in a dispute with the Construction, Forestry, Maritime, Mining and Energy Union, involving a proposed protected action ballot of its employees. The Fair Work Commission heard the matter. The primary legal issues addressed by the Commission included the appropriateness of the ballot notice provided by the Union and whether it complied with the relevant provisions of the Fair Work Act 2009. The Commission also examined whether Noorton Pty Ltd had valid grounds to object to the ballot and whether the Union had acted in accordance with the necessary procedural requirements.

The Commission meticulously reviewed the ballot notice and found it to be deficient in certain aspects, particularly in failing to adequately inform the employees about the nature and consequences of the proposed action. Despite these shortcomings, the Commission considered the broader context of the dispute and the necessity of ensuring that employees were properly informed and engaged in the decision-making process. After weighing these factors, the Commission ruled that the ballot should proceed, albeit with specific conditions to ensure that the employees were sufficiently informed. The decision highlighted the importance of clear communication and procedural fairness in such matters.

The outcome of the decision mandated that the Union take corrective steps to improve the ballot notice, ensuring that it met the statutory requirements for informed consent. Noorton Pty Ltd's objections were partially upheld, but the Commission determined that the ballot could proceed under the specified conditions. The final orders required the Union to revise the ballot notice to include all necessary information and to recommence the ballot process in compliance with the Fair Work Act. This ruling underscored the critical balance between procedural fairness and the rights of employees to engage in protected industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v Noorton 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