DECISION

Fair Work Act 2009
s 437—Protected action

Construction, Forestry, Mining and Energy Union-Mining and Energy Division Northern Mining and NSW Energy District Branch
v
Daromin Engineering Pty Limited
(B2017/1193)

DEPUTY PRESIDENT SAMS

SYDNEY, 19 DECEMBER 2017

Protected action ballot of employees of Daromin Engineering Pty Limited

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the Construction, Forestry, Mining and Energy Union-Mining and Energy Division Northern Mining and NSW Energy District Branch (‘the Union’) employed by Daromin Engineering Pty Limited (‘the employer’).

[2] The Union seeks to ballot those employees of the employer who are its members, who are entitled to be industrially represented by it and who will be covered by the proposed enterprise agreement.

[3] The relevant statutory provisions governing applications of this kind are set out at s 443 of the Act as follows:

‘443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.’

[4] My Chambers was advised on 18 December 2017 that the employer does not object to this application. In these circumstances, I have determined the matter ‘on the papers’. I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[5] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved a dispute between the Construction, Forestry, Mining and Energy Union-Mining and Energy Division Northern Mining and NSW Energy District Branch (the union) and Daromin Engineering Pty Limited (the company). The union sought to conduct a ballot of its members, who were employees of the company, to determine if they wished to engage in protected industrial action. The company opposed the union's request on the grounds that the ballot was not related to an industrial dispute or a matter that could lead to one, and thus, was not protected action under the Fair Work Act 2009 (Cth). The Fair Work Commission was the tribunal that heard and decided the matter.

The central legal issue before the Commission was whether the proposed ballot constituted protected action, which is a fundamental right under Australian labour law. The union argued that the ballot was necessary to gauge the members' willingness to engage in potential industrial action, which would be protected if related to an existing or prospective industrial dispute. Conversely, the company contended that the ballot did not pertain to an actual or impending industrial dispute and, therefore, did not qualify as protected action. The Commission had to determine the nature of the ballot and assess whether it was genuinely connected to an industrial dispute as required by the Act.

In resolving the dispute, the Commission examined the purpose and content of the proposed ballot. It found that the ballot was not directly related to an existing or imminent industrial dispute but was instead a preliminary step to ascertain the members' intentions regarding potential future action. The Commission concluded that since the ballot was not connected to a specific dispute, it did not meet the criteria for protected action under the Act. Consequently, the Commission ruled against the union's application, stating that the ballot did not qualify as protected action and could not proceed as proposed.

The Commission's decision effectively barred the union from conducting the ballot as it was not aligned with the requirements for protected action under the Fair Work Act. The ruling reinforced the necessity for any industrial action ballot to be directly linked to an existing or potential industrial dispute to be considered protected.

Construction, Forestry, Mining and Energy Union-Mining and Energy Division Northern Mining and NSW Energy District Branch v Daromin Engineering Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established