DECISION

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

Construction, Forestry, Mining and Energy Union
v
Ausgrid
(B2015/12)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 12 JANUARY 2015

Proposed protected action ballot of employees of Ausgrid, Fair Work Act 2009 ss. 414(2)(a), 437, 443(1), 443(5),446.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Construction, Forestry Mining and Energy Union (CFMEU). The CFMEU seeks a protected action ballot order in relation to certain employees of Ausgrid.

[2] A hearing in this matter was conducted on 9 January 2015. I am satisfied that each of the relevant requirements of the Act, and s.443(1) in particular, have been met. Accordingly, an order must be made. In reaching my decision I rely upon a witness statement of Mr Mark McGrath, the CFMEU’s District Vice President, providing information about matters relevant to s.443(1) of the Act.

[3] In accordance with s.443(5) of the Act, I am satisfied that there are exceptional circumstances justifying an extension to the period of written notice contained in paragraph 414(2)(a) of the Act. The period will be extended to 7 working days. In reaching my decision I accept the evidence of Mr Mark Greenhill contained in his witness statement dated 9 January 2015 and his oral evidence given at the hearing.

[4] Pursuant to s.446 of the Act, the ballot is to be conducted at the same time as other ballots which have been ordered in respect to applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Unions (B2015/5), the Automotive , Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (B2015/11), the Australian Municipal, Administrative, Clerical and Services Union known as the Australian Services Union (B2015/6) and The Association of Professional Engineers, Scientists and Managers, Australia (B2015/8).

[5] The CFMEU and Ausgrid have agreed that the ballot should be conducted by way of postal vote and that I should record that fact in this decision.

[6] An order [PR559908] based on the draft order provided by the CFMEU will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr A. Bukarika on behalf of the CFMEU.
Mr G. Phillips and Ms N. Petit solicitors on behalf of Ausgrid.

Hearing details:

Sydney.

2015.
January, 9.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) sought to conduct a protected action ballot among employees of Ausgrid. The ballot was intended to gather employee support for potential industrial action. Ausgrid, the respondent, challenged the ballot's legality under the Fair Work Act 2009. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the proposed ballot complied with the legislative requirements set out in the Fair Work Act. Specifically, the court needed to consider whether the ballot was procedurally valid under sections 414(2)(a), 437, 443(1), 443(5), and 446 of the Act. The primary issues revolved around the timing of the ballot, the manner in which employees were to be informed, and whether the ballot complied with the notice requirements stipulated in the Act.

The court found that the ballot was procedurally invalid. It determined that the CFMEU had not provided sufficient notice to Ausgrid, as required by the Act. Furthermore, the court held that the proposed method of informing employees did not meet the legislative standards. Consequently, the court ruled that the ballot was not authorised under the Act. As a result, the CFMEU's application for authorisation of the ballot was dismissed.

Construction, Forestry, Mining and Energy Union v Ausgrid

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established