DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Southern Star Windows Pty Ltd
(B2019/1372)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 5 DECEMBER 2019

Proposed protected action ballot of employees of Southern Star Windows 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 Southern Star Windows Pty Ltd (Respondent).

[2] On 5 December 2019, 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 statutory declaration of Mr P Duncan 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 PR714914.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Construction, Forestry, Maritime, Mining and Energy Union, seeking to validate a proposed industrial action ballot. The respondents, Southern Star Windows Pty Ltd, sought to have the proposed ballot invalidated. The dispute centred on whether the proposed ballot complied with the requirements of the Fair Work Act 2009 (Cth). The Commission had to determine whether the ballot notice was in the correct form and whether the ballot was to be conducted in good faith for the purposes permitted by the Act.

The Commission noted that the Act required a ballot notice to specify the proposed action, the employer against whom the action is proposed, and the period for which the proposed action is to continue. The Commission found that the ballot notice in this case did not specify the period for which the proposed action was to continue. The Commission also considered whether the proposed action was to be conducted in good faith for a protected action purpose. The Commission found that the proposed action was not to be conducted in good faith for a protected action purpose as it was not reasonably likely to achieve a genuine industrial objective.

The Commission held that the proposed ballot was invalid as the ballot notice was not in the correct form and the proposed action was not to be conducted in good faith for a protected action purpose. The Commission invalidated the proposed ballot and ordered that no industrial action be taken in relation to it. The Commission emphasised the importance of complying with the requirements of the Act when conducting protected industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v Southern Star Windows 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