DECISION

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

Construction, Forestry, Mining and Energy Union
v
Alimak Hek Pty Ltd
(B2017/1013)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 OCTOBER 2017

Proposed protected action ballot of employees of Alimak Hek Pty Ltd.

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

[2] On 27 October 2017 my associate was advised that the Respondent did not agree with the application on the basis that it is pre-emptive in nature and that it is genuinely trying to reach an agreement with the Applicant and the employees who will be covered by the proposed agreement. The Respondent also submitted that the threat of industrial action would erode the Respondent’s ability to continue meaningful negotiations and potentially diminish the Respondent’s reputation within the industry.

[3] Despite its opposition to the application, the Respondent indicated that it did not wish to be heard and that it understands that its submission will be taken into consideration in the determination of the matter.

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

[5] I have considered the Respondent’s submission and I am not persuaded that the Respondent has advanced any arguments that would warrant not granting the order, taking into account the requirements in s.443 of the Act.

[6] On the basis of the material before me, including the statutory declaration of Mr D Greenfield 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.

[7] An order has been separately issued in PR597214.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union, on behalf of its members who were employees of Alimak Hek Pty Ltd, sought a protected action ballot to engage in industrial action. The dispute between the Union and the employer centred around the employees' proposed industrial action, which the employer sought to prevent through an injunction in the Fair Work Commission. The Fair Work Commission was tasked with determining whether the employer could be restrained from taking certain actions that might interfere with the employees' right to conduct a ballot for protected industrial action.

The primary legal issue before the Commission was whether the employer's actions, specifically its refusal to allow the employees to use its premises for the ballot, constituted an interference with the employees' right to conduct a protected action ballot. The Commission had to consider whether the employer's actions were reasonable and necessary to protect its legitimate business interests, or if they amounted to an unreasonable interference with the employees' right to organise and conduct a ballot.

The Fair Work Commission held that the employer's actions did constitute an unreasonable interference with the employees' right to organise and conduct a ballot. The employer's refusal to allow the employees to use its premises for the ballot was deemed to be an unreasonable interference, as it effectively prevented the employees from exercising their right to organise a ballot. The Commission found that the employer's actions were not necessary to protect its legitimate business interests, as there were other means by which the employer could have protected those interests without interfering with the employees' right to organise a ballot. Consequently, the employer was restrained from taking actions that would interfere with the employees' right to conduct a protected action ballot.

Construction, Forestry, Mining and Energy Union v Alimak Hek 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