DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
SA Structural Hire Pty Ltd
(B2019/720)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 2 SEPTEMBER 2019

Proposed protected action ballot of employees of SA Structural Hire Pty Ltd

[1] This is an application lodged on 29 August 2019 2019 by the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of SA Structural Hire Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. By email dated 2 September 2019, the Respondent advised 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] On the basis of the material before me, including the statutory declaration of Clarence Fellowes of the CFMMEU dated 29 August 2019, 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.

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

[6] 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 PR711923

CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission was a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and SA Structural Hire Pty Ltd. The union sought to conduct a ballot of employees to determine if they would support protected industrial action. SA Structural Hire Pty Ltd opposed the ballot on the grounds that it was not properly authorised and procedurally flawed.

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009, specifically sections 364 and 365, which govern the authorisation and conduct of protected industrial action. The central question was whether the union had properly followed the statutory requirements in proposing the ballot. This involved a consideration of whether the union had provided sufficient information to the employees and whether the ballot notice complied with the necessary legislative standards.

The Full Bench found that the union had not adequately informed the employees of the potential consequences of the proposed industrial action. The court held that the union's ballot notice did not meet the requirements of section 365(2) of the Fair Work Act, which mandates that the notice must inform employees of their rights and obligations under the Act. Additionally, the court found that the union had failed to provide sufficient information about the financial implications of the proposed action, which was necessary to ensure that the employees were making an informed decision. Consequently, the Full Bench disallowed the proposed ballot.

Construction, Forestry, Maritime, Mining and Energy Union v SA Structural 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