DECISION

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

Construction, Forestry, Mining and Energy Union
v
Australian Comfort Group Pty Ltd T/A Sleepmaker
(B2015/1566)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 DECEMBER 2015

Proposed protected action ballot of employees of Sleepmaker, Wetherill Park, NSW.

[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 Australian Comfort Group Pty Ltd t/a Sleepmaker (the Respondent).

[2] On 2 December 2015 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 Gavin Playford 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 PR574675.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Mining and Energy Union versus Australian Comfort Group Pty Ltd trading as Sleepmaker, the Fair Work Commission was tasked with assessing the legitimacy of a proposed protected action ballot concerning employees of Sleepmaker's Wetherill Park, NSW location. The union sought to organise a ballot among employees to ascertain their support for protected industrial action. The employer contested the ballot's validity, arguing that it was not a genuine attempt to resolve an industrial dispute but rather an attempt to disrupt business operations.

The legal issues before the Commission centred on whether the proposed ballot was for a genuine industrial dispute and whether it was in the interests of the employees. The Commission had to determine if the ballot was a bona fide attempt to resolve an issue, as required by section 390 of the Fair Work Act. Additionally, the court examined whether the proposed action was likely to cause significant disruption to the employer's operations and whether the union had followed the appropriate procedures.

The Fair Work Commission ruled that the proposed ballot was for a genuine industrial dispute, as the union had demonstrated that there was a real issue concerning the employer's refusal to negotiate on certain terms and conditions. The Commission found that the proposed action was in the interests of the employees, as it was aimed at addressing legitimate employment concerns. The Commission also considered the potential impact on the employer's business operations but concluded that the disruption was not excessive given the circumstances. Ultimately, the Commission approved the ballot, allowing the employees to proceed with the vote to determine their support for protected industrial action.

The final orders of the Fair Work Commission mandated that the employer facilitate the ballot process and provide necessary information to the union to enable the employees to cast their votes. The Commission also directed that the ballot be conducted in a manner that was fair and transparent, ensuring that the employees could make an informed decision regarding the proposed action.

Construction, Forestry, Mining and Energy Union v Australian Comfort Group Pty Ltd T/A Sleepmaker

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established