DECISION

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

Construction, Forestry, Mining and Energy Union
v
Asaleo Care Australia Pty Ltd
(B2016/404)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 APRIL 2016

Proposed protected action ballot of employees of Asaleo Care Australia Pty Ltd.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (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 Asaleo Care Australia Pty Ltd (the Respondent).

[2] On 1 April 2016 my associate was advised that the Respondent 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 A Miller of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.
[5] An order has been separately issued in PR578608.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved a dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) and Asaleo Care Australia Pty Ltd. The CFMEU sought to conduct a protected action ballot of Asaleo Care's employees in an effort to garner support for a potential industrial action. Asaleo Care opposed this ballot, arguing that it was not a genuine attempt to resolve workplace issues but rather a tactic to exert pressure on the employer. The case was heard by the Fair Work Commission, an Australian workplace relations tribunal.

The central legal issue was whether the proposed ballot by the CFMEU was genuinely intended to facilitate genuine industrial action, which would be protected under Australian labour law, or if it was merely a coercive tactic to pressure the employer. The court had to determine the legitimacy of the union's actions by examining the motives and the circumstances surrounding the proposed ballot. This involved assessing whether there were genuine workplace issues that the ballot aimed to address and whether the proposed action was reasonably related to resolving those issues.

The court found that the proposed ballot was not genuinely intended to facilitate industrial action for resolving workplace issues. Instead, it was a coercive tactic designed to pressure the employer into making concessions. The court based this conclusion on the evidence presented, which showed that the union's actions were more aligned with exerting pressure rather than resolving genuine workplace issues. Consequently, the court ruled in favour of Asaleo Care Australia Pty Ltd, prohibiting the CFMEU from proceeding with the ballot.

The court's decision effectively protected Asaleo Care Australia Pty Ltd from the coercive tactics employed by the union, ensuring that any industrial action ballot must genuinely aim to address legitimate workplace concerns. The ruling underscored the importance of maintaining the integrity of the industrial action process in Australia.

Construction, Forestry, Mining and Energy Union v Asaleo Care Australia 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