DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
TW Power Services Pty Ltd
(B2019/361)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 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 PR707979.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and TW Power Services Pty Ltd, which centred on a proposed protected action ballot of employees of TW Power Services Pty Ltd. The Fair Work Commission was the forum for this dispute. The central legal issues the court needed to address were whether the CFMEU had adequately justified its proposed protected action ballot and whether the ballot complied with the requirements of the Fair Work Act 2009.

The court examined the CFMEU's justification for the proposed protected action, considering the relevant provisions of the Fair Work Act. It assessed the union's claims about potential changes to the employees' terms and conditions of employment and whether these changes constituted a detriment. The court also reviewed the process through which the ballot was to be conducted, ensuring it adhered to the statutory requirements for such actions. Ultimately, the court concluded that the CFMEU had not sufficiently substantiated its claims to warrant the proposed action. Additionally, the court found that the ballot did not meet the necessary legal standards, leading to the decision that the proposed ballot was invalid.

Based on its findings, the court ruled against the CFMEU, determining that the union's proposed protected action ballot was not justified and did not comply with the legislative framework. Consequently, the court ordered that the proposed ballot be disallowed and that the union was not authorised to proceed with it. This decision effectively put an end to the CFMEU's efforts to conduct the ballot, reinforcing the legal standards that must be met for such industrial actions to be permissible.

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