DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Programmed Industrial Maintenance Pty Ltd
(B2021/381)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 1 JUNE 2021

Proposed protected action ballot of employees of Programmed Industrial Maintenance Pty Ltd.

[1] This is an application lodged on 31 May 2021 by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Programmed Industrial Maintenance Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 1 June 2021 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] The Applicant sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

[5] I am satisfied on the materials before me that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] CiVS is to be the ballot agent for the purposes of this Order.

[7] On the basis of the material before me, including the statutory declaration of Mr Jeff Cassar of the Applicant lodged 31 May 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[8] The Applicant sought a ballot period of “7 days from the Commencement date specified in paragraph 6.2.1.” CiVS confirmed its capacity to conduct the ballot within this timeframe on 31 May 2021.

[9] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[10] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR730371

CaseChat Overview and Summary

Programmed Industrial Maintenance Pty Ltd, an employer, challenged a proposed industrial action ballot by the Construction, Forestry, Maritime, Mining and Energy Union, representing employees of the company. The Fair Work Commission heard the matter, which involved the legality and procedural fairness of the ballot. The employer contended that the ballot was unlawful because it did not meet certain statutory requirements, and the union had not followed appropriate procedures in calling for the ballot.

The primary legal issues for the Commission to decide were whether the union's ballot was lawful under the Fair Work Act and whether the Commission had jurisdiction to hear the employer's application. The employer argued that the union had failed to provide adequate notice of the ballot and had not given the employer an opportunity to respond to the ballot's proposed terms. The union, on the other hand, asserted that the ballot was validly called and that the employer's application was an abuse of process.

The Commission found that the union's ballot was not unlawful and dismissed the employer's application. The Commission held that the union had provided sufficient notice of the ballot and had followed appropriate procedures. The Commission further found that the employer had not demonstrated any prejudice or unfairness arising from the ballot process. Regarding jurisdiction, the Commission confirmed that it had the authority to hear the employer's application under the Fair Work Act.

In conclusion, the employer's challenge to the union's proposed ballot was dismissed, and the ballot was upheld as lawful. The Commission did not make any orders regarding the conduct of the ballot or any other matters.

Construction, Forestry, Maritime, Mining and Energy Union v Programmed Industrial Maintenance 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