DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
TW Power Services Pty Ltd
(B2019/362)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 MAY 2019

Proposed protected action ballot of employees of TW Power Services Pty Ltd.

[1] This is an application by the Construction, Forestry, 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 TW Power Services Pty Ltd T/A TW Power Services (Respondent).

[2] On 3 May 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of India Baxter 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 PR707962.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union v TW Power Services Pty Ltd, the Fair Work Commission was tasked with determining whether a proposed industrial action ballot by employees of TW Power Services Pty Ltd was lawful. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union, sought to conduct a protected action ballot to gauge support for potential industrial action. TW Power Services Pty Ltd contested the ballot, arguing it was not appropriately authorised or in compliance with statutory requirements.

The legal issues before the Commission included whether the ballot notice provided by the union sufficiently described the proposed protected action, whether the union had complied with procedural requirements under the Fair Work Act 2009, and whether the ballot itself was likely to cause significant economic harm to TW Power Services Pty Ltd. The Commission needed to consider the wording and content of the ballot notice, the union's compliance with the Act, and the potential impact of the proposed industrial action on the employer's business operations.

After thorough examination of the evidence and arguments presented by both parties, the Commission concluded that the union's ballot notice was adequately detailed and complied with the requirements of the Fair Work Act. The Commission found that the proposed industrial action was likely to cause significant economic harm to TW Power Services Pty Ltd, but determined that the union had not acted in bad faith and had followed the necessary procedural steps. Consequently, the Commission authorised the union to conduct the ballot as proposed. The Commission emphasised the importance of procedural fairness and compliance with legislative requirements in such matters.

The final orders of the Commission included authorisation for the union to conduct the ballot as proposed, with specific directions regarding the content and distribution of the ballot materials to ensure transparency and fairness in the process.

Construction, Forestry, Maritime, Mining and Energy Union v TW Power 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