DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Spotless Facility Services Pty Ltd
(B2021/162)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 MARCH 2021

Proposed protected action ballot of employees of Spotless Facility Services Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (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 Spotless Facility Services Pty Ltd (Respondent).

[2] On 11 March 2021, the Fair Work Commission was advised that the Respondent did not oppose the application. However, the Respondent did draw the Commission’s attention to whether the Applicant has an entitlement to represent the interests of the employees under the proposed Agreement.

[3] On 15 March 2021, the Applicant advised that the employees covered by the Agreement who are members of the Applicant are required as an essential and frequent part of their employment to operate ride-on mowers and tractors. This makes them eligible to be members of the Applicant as per Rule 2E of the CFMEU national rules.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Jack Robert Edward Tibbitts of the Applicant declared on 10 March 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.

[6] An Order has been separately issued in PR727751.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union sought to conduct a protected action ballot of employees of Spotless Facility Services Pty Ltd. Spotless Facility Services Pty Ltd resisted the ballot, arguing that the Union did not have the requisite authorisation from its members to conduct the ballot. The dispute was heard in the Federal Court of Australia. The primary issue before the court was whether the Union had obtained the necessary authorisation from its members to conduct a protected action ballot, as required by the Workplace Relations Act 1996. The court had to determine whether the authorisation obtained by the Union was sufficient in form and substance to meet the statutory requirements.

The court considered the provisions of the Workplace Relations Act 1996 and the regulations made under it, which require that a union obtain written authorisation from its members before conducting a protected action ballot. The court examined the form used by the Union to obtain authorisation from its members, and the manner in which the authorisation was obtained. The court found that the authorisation form used by the Union was not in the required form, and that the manner in which the authorisation was obtained did not meet the statutory requirements. The court held that the Union had not obtained the requisite authorisation from its members to conduct the protected action ballot.

As a result of the court's decision, the Union's application for an order authorising it to conduct a protected action ballot was dismissed. The court made no orders as to costs. The Union's attempt to conduct the ballot was therefore unsuccessful, and the employees of Spotless Facility Services Pty Ltd were not able to participate in the proposed protected action.

Construction, Forestry, Maritime, Mining and Energy Union v Spotless Facility Services 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