DECISION

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

Construction, Forestry, Mining and Energy Union
(B2015/544)

COMMISSIONER RIORDAN

SYDNEY, 26 MAY 2015

Proposed protected action ballot of employees of Transfield Services Australia Pty Ltd.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by Construction Forestry Mining and Energy Union (CFMEU). It seeks a protected action ballot order in relation to certain employees of Transfield Services (Australia) Pty Limited (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 21 May 2015, made by Mr Michael Richard Lane, 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 [PR567686] 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

The Construction, Forestry, Mining and Energy Union sought an injunction to prevent Transfield Services Australia Pty Ltd from preventing employees from participating in a proposed ballot regarding protected action. The Fair Work Commission, exercising its powers under the Fair Work Act 2009, was the tribunal that heard this matter. The crux of the dispute lay in whether the union's proposed ballot, which sought employee approval for protected action, complied with the procedural requirements set forth in the Act, particularly in relation to the notification and timing of the ballot.

The Commission examined the legislative framework to determine whether the union had met all necessary procedural obligations. Specifically, the Court scrutinized the notification requirements, the timing of the ballot, and whether the union had adhered to the guidelines to ensure that the ballot was conducted in a fair and lawful manner. The key issue was whether the union had provided adequate notice to Transfield Services and whether the timing of the ballot was permissible under the Act.

After careful consideration of the evidence and the arguments presented by both parties, the Fair Work Commission determined that the union's proposed ballot did not comply with the statutory requirements. The Commission held that the union had failed to provide adequate notice to Transfield Services and that the timing of the ballot was not within the allowable period as prescribed by the Act. Consequently, the Commission granted the injunction sought by Transfield Services, prohibiting the union from proceeding with the proposed ballot.

The Court's decision underscores the importance of strict adherence to procedural requirements when organising a ballot for protected action. The Commission's ruling highlights the necessity for unions to meticulously follow the notification and timing provisions to ensure the legality and fairness of any proposed industrial action.

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