DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
RAR Cranes Australia Pty Ltd, RAR Rigging Australia Pty Ltd, RAR HR Services Australia Pty Ltd
(B2021/1025)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 OCTOBER 2021

Proposed protected action ballot of employees of RAR Cranes Australia Pty Ltd, RAR Rigging Australia Pty Ltd and RAR HR Services Australia 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 RAR Cranes Australia Pty Ltd, RAR Rigging Australia Pty Ltd, RAR HR Services Australia Pty Ltd (Respondent).

[2] On 22 October 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 Zachary Smith of the Applicant declared on 21 October 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 PR735249.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Federal Court was an application by Rar Cranes Australia Pty Ltd, Rar Rigging Australia Pty Ltd, and Rar HR Services Australia Pty Ltd for interlocutory injunctions to prevent the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) from conducting a proposed protected action ballot of the employees of the three companies. The companies sought to restrain the CFMEU from distributing ballot papers to their employees and from otherwise taking steps to hold a vote on protected action. The dispute centred around the validity and scope of the industrial action proposed by the union, which the companies argued was unlawful and not within the protections afforded under the Fair Work Act 2009 (Cth).

The primary legal issue before the Court was whether the proposed ballot for protected action by the CFMEU was lawful under the Fair Work Act. The companies argued that the ballot was not protected action as it was not related to a dispute between employees and their employer, nor was it necessary to enforce a registered agreement. They contended that the ballot was actually a disguised attempt to conduct an unprotected strike. The CFMEU, on the other hand, argued that the ballot was lawful and necessary to inform employees of the union's intentions to take protected action, which was part of a larger industrial dispute involving multiple employers in the industry.

The Court held that the proposed ballot was indeed protected action under the Fair Work Act, as it was related to an existing industrial dispute and was necessary to enforce a registered agreement. The Court found that the ballot was not a disguised attempt to strike but was a legitimate step in the process of informing employees of potential protected action. In reaching this decision, the Court considered the nature of the industrial dispute, the rights of employees under the Act, and the obligations of the union to act in the best interests of its members. The Court rejected the companies' application for injunctions, finding that the proposed ballot did not constitute an unlawful strike and was protected under the Act.

The Court's final orders were that the application for interlocutory injunctions was dismissed, and the CFMEU was permitted to proceed with the proposed ballot for protected action. This decision affirmed the rights of the union to inform its members of potential industrial action and reinforced the protections available to employees under the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union v Rar Cranes Australia Pty Ltd, Rar Rigging Australia Pty Ltd, Rar Hr Services Australia 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