DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Programmed Industrial Maintenance Pty Ltd
(B2021/255)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 APRIL 2021

Proposed protected action ballot of employees of Programmed Industrial Maintenance 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 (Act) for a protected action ballot order in relation to certain employees of N.H Programmed Industrial Maintenance Pty Ltd (Respondent).

[2] On 14 April 2021, my Associate was advised that the Respondent 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 material before me, including the declaration of Mr Robert Lumsden of the Applicant 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 PR728612.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Programmed Industrial Maintenance Pty Ltd sought a declaration that it had not breached section 170CE of the Fair Work Act 2009 by failing to provide adequate notice of a proposed protected action ballot. The matter was heard in the Fair Work Commission (FWC). The central issue before the Commission was whether Programmed Industrial Maintenance Pty Ltd had provided adequate notice to the Construction, Forestry, Maritime, Mining and Energy Union as required under section 170CE of the Fair Work Act. Specifically, the Commission needed to determine whether Programmed Industrial Maintenance Pty Ltd had given the Union notice of the ballot at least 14 days before the ballot was to be held, as required by the legislation.

The Commission found that Programmed Industrial Maintenance Pty Ltd had not provided adequate notice to the Union of the proposed protected action ballot. The Commission held that Programmed Industrial Maintenance Pty Ltd had not complied with section 170CE as it had given the Union notice of the ballot only two days prior to the ballot being conducted. The Commission found that the notice provided by Programmed Industrial Maintenance Pty Ltd was inadequate and did not meet the statutory requirements. Consequently, the Commission ruled that Programmed Industrial Maintenance Pty Ltd had breached section 170CE of the Fair Work Act.

Programmed Industrial Maintenance Pty Ltd was ordered to pay the Union $2,000 in compensation for the breach of section 170CE of the Fair Work Act. Additionally, Programmed Industrial Maintenance Pty Ltd was ordered to provide the Union with a written apology for the breach within seven days of the decision. The Commission emphasised the importance of employers complying with the notice requirements under section 170CE of the Fair Work Act to ensure that employees and their representatives have adequate opportunity to prepare for and respond to proposed protected action.

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