Construction, Forestry, Mining and Energy Union

[2014] FWC 3752

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(B2014/839)

PAYNTER DIXON MANAGEMENT SERVICE PTY LIMITED/CFMEU COLLECTIVE AGREEMENT 2009-2011

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 5 JUNE 2014

Proposed protected action ballot by employees of Paynter Dixon Management Services 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 Paynter Dixon Management Services 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 2 June 2014 made by Brian Miller, Union Organiser.

[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 [PR551505] 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 Construction, Forestry, Mining and Energy Union v Paynter Dixon Management Services Pty Ltd, the Fair Work Commission (FWC) was tasked with determining the validity of a proposed ballot for protected industrial action by employees of Paynter Dixon Management Services Pty Ltd. The dispute centred around the adequacy and legality of the ballot notice provided to the employees and its compliance with the Fair Work Act 2009. The employees sought to engage in protected action due to various grievances related to their employment terms and conditions.

The primary legal issues before the FWC were whether the ballot notice given to the employees was sufficient and whether it met the statutory requirements set out in the Fair Work Act. Specifically, the FWC had to determine if the ballot notice was in the prescribed form, contained the required information, and was provided to the employees at least 10 days before the ballot was to be held. Additionally, the FWC examined whether there were any procedural or substantive irregularities in the manner in which the ballot was conducted.

The FWC found that the ballot notice issued by the union did not comply with the statutory requirements. The notice was deemed inadequate as it did not include all the prescribed information, such as a clear description of the proposed protected action and the specific issues it addressed. Consequently, the FWC ruled that the ballot was invalid and could not proceed. The decision emphasised the importance of strict adherence to the legislative requirements for conducting lawful industrial action to ensure fairness and clarity for all parties involved.

The FWC's decision resulted in the invalidation of the proposed ballot. The union was directed to cease any further action based on the invalid ballot notice. The employees, while still having the right to organise and engage in protected action, were required to ensure that any future ballot complied fully with the statutory provisions to avoid similar outcomes. The decision underscored the necessity for unions and employers to meticulously follow legal procedures when organising industrial actions to maintain the integrity of the process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established