DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
PRC Hire Pty Ltd
(B2021/1092)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 NOVEMBER 2021

Proposed protected action ballot of employees of PRC Hire Pty Ltd

[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 (Cth) (Act) for a protected action ballot order in relation to certain employees of PRC Hire Pty Ltd (Respondent).

[2] On 16 November 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 Bradley John Henley Upton of the Applicant declared on 12 November 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 PR735906.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) heard a matter involving the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and PRC Hire Pty Ltd. The CFMEU sought to conduct a protected action ballot of PRC Hire employees. The dispute centred on the legitimacy of the ballot and the procedural fairness afforded to PRC Hire. The Commission, exercising its powers under the Fair Work Act 2009 (Cth), was tasked with determining whether the ballot was procedurally just and whether the requirements of the Act were met.

The primary legal issues before the FWC were whether the ballot complied with the procedural fairness requirements under the Act and whether the CFMEU had acted appropriately in conducting the ballot. The FWC considered whether PRC Hire was adequately informed of the ballot, given the CFMEU's assertion that it was not bound by the Act's procedural requirements. Additionally, the FWC examined whether the CFMEU's conduct in initiating the ballot was in accordance with the principles of natural justice and procedural fairness.

The FWC found that the CFMEU's actions were not consistent with the principles of procedural fairness. The Commission held that PRC Hire was entitled to be informed of the ballot and that the CFMEU had failed to provide PRC Hire with adequate notice and an opportunity to respond. Consequently, the FWC ruled that the ballot was invalid. The Commission emphasised that the CFMEU, as a registered organisation, is bound by the procedural fairness requirements of the Act, and any deviation from these requirements could render the proposed action unlawful.

In light of the findings, the FWC ordered that the ballot be declared invalid. The Commission emphasised the importance of procedural fairness in protected action ballots and highlighted the need for registered organisations to adhere to the requirements of the Act. The decision underscores the FWC's commitment to ensuring that all parties involved in industrial disputes are treated fairly and that the procedural safeguards in the Act are upheld.

Construction, Forestry, Maritime, Mining and Energy Union v PRC Hire 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