DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Pileworx Pty Ltd
(B2021/688)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 AUGUST 2021

Proposed protected action ballot of employees of Pileworx Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union, Construction & General Division, Queensland Northern Territory Divisional Branch (CFMMEU) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Pileworx Pty Ltd (Respondent).

[2] On 18 August 2021, 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 Andrew Blakeley of the Applicant declared on 17 August 2021, 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 PR733020.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard a case between the Construction, Forestry, Maritime, Mining and Energy Union and Pileworx Pty Ltd, concerning a proposed ballot of employees of Pileworx Pty Ltd to authorise protected action. The court was tasked with determining whether the ballot complied with the relevant provisions of the Fair Work Act 2009. The dispute arose from the union's attempt to conduct a ballot to authorise potential industrial action among Pileworx employees, which the company contested on the grounds that the ballot did not meet the procedural requirements set out in the legislation.

The primary legal issue before the court was whether the union's ballot met the statutory requirements for procedural fairness, specifically in relation to the notice given to the employer and the adequacy of the ballot papers. The court had to consider whether the union's failure to provide the employer with a copy of the ballot paper and a copy of the notice given to the employees constituted a procedural defect that rendered the ballot invalid. The court also examined whether the ballot papers were sufficiently clear and unambiguous to ensure that the employees' votes were properly recorded.

The court found that the union's ballot did not comply with the statutory requirements, primarily due to the failure to provide the employer with a copy of the ballot paper and the notice given to the employees. The court held that these procedural shortcomings meant that the ballot did not meet the standards of procedural fairness required by the Fair Work Act. Consequently, the court ruled that the ballot was invalid and could not be used to authorise protected action by the employees. The court's decision was grounded in the need to ensure that all parties involved in the industrial relations process have an opportunity to be heard and to understand the implications of the proposed action.

The court's orders reflected its findings, declaring that the union's ballot was invalid and could not be relied upon to authorise protected action. The court did not issue any further orders, leaving it to the parties to determine their next steps in light of the ruling. The decision underscored the importance of strict compliance with the statutory requirements for conducting ballots in the context of industrial action, highlighting the need for procedural fairness and transparency in the industrial relations process.

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