DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
(B2015/583)

COMMISSIONER RIORDAN

SYDNEY, 10 JUNE 2015

Proposed protected action ballot of employees of Icon Co (NSW) Pty Ltd.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by The Construction, Forestry, Mining and Energy Union (CFMEU). It seeks a protected action ballot order in relation to certain employees of Icon Co (NSW) Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the CFMEU filed a statement dated 5 June 2015, made by Mr Ben Manna, Union Organiser for the CFMEU .

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the CFMEU, that the CFMEU has been, and continues to be, genuinely trying to reach an agreement with the Employer.

[5] An order [PR568150] based on the draft order provided by the CFMEU is issued in conjunction with this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the recent case of the Construction, Forestry, Mining and Energy Union, the Fair Work Commission was tasked with determining whether a proposed industrial action ballot was valid. The dispute arose between the Construction, Forestry, Mining and Energy Union (CFMEU) and Icon Co (NSW) Pty Ltd, an employer in the construction industry. The central issue was whether the CFMEU's ballot, intended to authorise protected action, complied with the legal requirements set out under the Fair Work Act 2009.

The legal issues before the Commission were whether the ballot notice was clear, whether it specified the protected action, and whether it was issued within the appropriate timeframe. Additionally, the Commission considered whether the ballot complied with the procedural requirements necessary to trigger lawful industrial action. The CFMEU argued that the ballot met all necessary statutory criteria, while Icon Co (NSW) Pty Ltd contended that the ballot was defective and did not comply with the legislative framework.

The Fair Work Commission found that the CFMEU's ballot did not adequately specify the nature and duration of the proposed protected action. The Commission held that the ballot notice was not sufficiently clear and precise to meet the statutory requirements, leading to its invalidity. The Commission further found that the ballot did not comply with the procedural obligations intended to protect both the rights of employees and employers. Consequently, the proposed industrial action could not proceed under the protection of the Fair Work Act. The Commission's decision underscored the importance of precise and transparent communication in the process of initiating protected industrial action.

The Fair Work Commission declared the proposed ballot invalid, thereby preventing the CFMEU from proceeding with the industrial action as planned. The Commission's ruling highlighted the necessity for clarity and precision in ballot notices to ensure that all parties are fully informed of the intended action and its implications. This decision serves as a reminder of the stringent requirements that must be met to lawfully authorise industrial action under Australian labour law.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established