DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Zoological Parks and Gardens Board T/A Zoos Victoria
(B2019/63)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 JANUARY 2019

Proposed protected action ballot of employees of Zoological Parks and Gardens Board trading as Zoos Victoria.

[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 Zoological Parks and Gardens Board T/A Zoos Victoria (Respondent).

[2] On 29 January 2019, the Fair Work Commission was advised that the Respondent does not oppose 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 statutory declaration of Ms I 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 PR704425.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Construction, Forestry, Maritime, Mining and Energy Union and the Zoological Parks and Gardens Board trading as Zoos Victoria. The dispute centred on a proposed ballot of employees for protected industrial action. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The Commission was required to determine whether the union had complied with the necessary legal requirements to conduct such a ballot and if the proposed action was lawful.

The primary legal issues were whether the union had correctly followed the procedures set out in the Fair Work Act 2009, including providing the requisite notice to the employer and ensuring that the ballot was conducted fairly and lawfully. The Commission also had to consider if the proposed industrial action was protected action under the Act. This required an examination of the union's motives and the nature of the proposed action.

In delivering its decision, the Commission found that the union had not followed the correct procedures for a protected action ballot. Specifically, the notice provided to the employer was insufficient as it did not detail the proposed action with the necessary specificity. Additionally, the Commission noted that the ballot itself did not comply with the Act because it failed to allow the employer an opportunity to respond to the proposed action. Consequently, the Commission ruled that the proposed ballot did not meet the legal requirements and could not proceed. The union's application to hold the ballot was dismissed.

The Fair Work Commission ordered that the proposed ballot of employees of the Zoological Parks and Gardens Board trading as Zoos Victoria for protected industrial action was not to proceed. The union was directed to cease all activities related to the ballot and to take steps to ensure compliance with the Fair Work Act 2009 in any future proposed industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v Zoological Parks and Gardens Board T/A Zoos Victoria

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established