DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Ta Ann Tasmania Pty LTD T/A Ta Ann Tasmania
(B2021/1007)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 OCTOBER 2021

Proposed protected action ballot of employees of Ta Ann Tasmania Pty LTD T/A Ta Ann Tasmania.

[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 Ta Ann Tasmania Pty LTD T/A Ta Ann Tasmania (Respondent).

[2] On 18 October 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 Danny Murphy 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 PR734990.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of its members, sought a protected action ballot to be conducted amongst the employees of Ta Ann Tasmania Pty Ltd T/A Ta Ann Tasmania. The union argued that the employees were dissatisfied with their current terms of employment and were considering taking protected action. The dispute was heard by the Fair Work Commission. The central legal issue before the Commission was whether the proposed ballot was valid under the Fair Work Act 2009. Specifically, the Commission had to determine if the ballot complied with the procedural requirements outlined in the Act, including the necessity of a prior dispute of interest and whether the union had correctly identified the appropriate bargaining unit for the ballot.

The Commission found that the union had correctly identified the appropriate bargaining unit and that a dispute of interest existed between the employees and the employer. However, the Commission noted that the union had not adequately demonstrated that the proposed action was related to the terms and conditions of employment of the employees. The Commission further found that the union's proposed ballot notice did not accurately reflect the nature of the dispute and the proposed action. Consequently, the Commission determined that the proposed ballot did not meet the requirements of the Act and dismissed the union's application.

As a result of the decision, the proposed ballot was not authorised, and the employees were unable to proceed with the protected action. The Commission emphasised the importance of accurately reflecting the nature of the dispute and the proposed action in the ballot notice, as well as the necessity of a genuine dispute of interest between the employees and the employer. The decision serves as a reminder to unions and employers of the importance of complying with the procedural requirements of the Act when conducting a protected action ballot.

Construction, Forestry, Maritime, Mining and Energy Union v Ta Ann Tasmania Pty Ltd T/A Ta Ann Tasmania

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established