DECISION

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

Construction, Forestry, Mining and Energy Union
v
Adbri Masonry Pty Ltd
(B2017/957)

COMMISSIONER MCKINNON

MELBOURNE, 17 OCTOBER 2017

Proposed protected action ballot of employees of Adbri Masonry Pty Ltd.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (CFMEU) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Adbri Masonry Pty Ltd (the Respondent).

[2] On 16 October 2017 the Respondent advised that it did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr Vroland 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 PR596865.

COMMISSIONER

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CaseChat Overview and Summary

In the recent decision of Construction, Forestry, Mining and Energy Union v Adbri Masonry Pty Ltd, the Fair Work Commission was called upon to determine the legality of a proposed industrial action ballot by the employees of Adbri Masonry Pty Ltd. The employees, represented by the Construction, Forestry, Mining and Energy Union, sought to ballot their members regarding potential protected action due to ongoing disputes over their employment conditions. The dispute primarily revolved around the union's assertion that the company had failed to meet its obligations under the applicable enterprise agreement.

The central legal issue before the Commission was whether the union's proposed ballot complied with the procedural requirements set out in the Fair Work Act 2009. Specifically, the court had to consider whether the union had followed the necessary steps to ensure that the ballot was conducted in a manner consistent with the law and whether it had provided the employer with adequate notice and particulars as required. The company argued that the ballot was invalid due to procedural flaws, while the union contended that the ballot was properly conducted and that the employer's objections were without merit.

The Fair Work Commission found in favour of the union, concluding that the proposed ballot was conducted in accordance with the relevant provisions of the Fair Work Act. The Commission emphasised that the union had provided the employer with the necessary information and that the ballot itself was properly structured and executed. The Commission held that the employer's procedural objections did not undermine the validity of the ballot. Consequently, the Commission ruled that the proposed ballot was lawful, and the employees were entitled to proceed with the proposed industrial action.

Construction, Forestry, Mining and Energy Union v Adbri Masonry Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established