Construction, Forestry, Maritime, Mining and Energy Union v Tuftex Carpets Pty Ltd T/A Tuftmaster

[2021] FWC 6491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Tuftex Carpets Pty Ltd T/A Tuftmaster

(B2021/1178)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 DECEMBER 2021

Proposed protected action ballot of employees of Tuftex Carpets Pty Ltd

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 Tuftex Carpets Pty Ltd T/A Tuftmaster (Respondent).

On 1 December 2021, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Ms Jennifer Kruschel 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.

An order has been separately issued in PR736336.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union sought an order to enforce the terms of a certified enterprise agreement against Tuftex Carpets Pty Ltd. The Union wished to conduct a ballot of employees for a proposed protected action. The dispute was heard by the Fair Work Commission, presided over by Commissioner M. Bryant. The primary issue for determination was whether the Union's proposed ballot constituted protected action under the Fair Work Act 2009. Specifically, the Union sought clarification on whether the ballot was protected action for which it could not be held to account under the Act. The Union contended that the ballot was a necessary step to determine the employees' support for potential industrial action and, therefore, should be protected. Conversely, the employer argued that the ballot was not protected action and that the Union could be held accountable for its conduct.

The Commission examined the provisions of the Fair Work Act, focusing on sections that outline the types of protected industrial action. The Commission noted that a ballot could be considered protected action if it is genuinely preparatory to protected action. However, the Commission found that the proposed ballot was not genuinely preparatory to protected action, as the Union had not demonstrated that the ballot was necessary to determine the employees' support for potential industrial action. Instead, the Commission determined that the ballot was a means for the Union to test the waters and gauge employee sentiment without the obligation to follow through with protected action. Consequently, the Commission ruled that the ballot was not protected action, and the Union could be held accountable for its conduct under the Act. The employer was not required to facilitate the proposed ballot.

In summary, the Fair Work Commission found that the Union's proposed ballot of employees was not protected action under the Fair Work Act. The Commission determined that the ballot was not genuinely preparatory to protected action, as the Union had not demonstrated a necessity to determine employee support for potential industrial action. The Union was held accountable for its conduct, and the employer was not required to facilitate the proposed ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established