DECISION

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

Construction, Forestry, Mining and Energy Union
v
Boom Logistics (Vic) Pty Ltd
(B2016/1275)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 7 DECEMBER 2016

Proposed protected action ballot of employees of Boom Logistics (Vic) 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 Boom Logistics (Vic) Pty Ltd (the Respondent).

[2] On 6 December 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 Ms J Maloney 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 PR588330.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Construction, Forestry, Mining and Energy Union v Boom Logistics (Vic) Pty Ltd involved a dispute between the union representing employees of Boom Logistics and the employer itself. The central issue was the union's proposal to conduct a protected action ballot among the employees to determine support for potential industrial action. The matter was heard in the Fair Work Commission, which has jurisdiction over employment disputes in Australia.

The legal issues before the Commission included whether the proposed ballot was an "industrial action ballot" as defined by the Fair Work Act 2009, and if so, whether the union had complied with the procedural requirements for such a ballot. Specifically, the Commission had to consider whether the union had given the employer the requisite seven days' notice of the ballot, and whether the ballot notice itself was properly drafted and delivered to the employees.

In its decision, the Commission noted that the union had not provided the employer with the requisite seven days' notice, as required by section 316 of the Fair Work Act. Furthermore, the ballot notice was not considered to be compliant with the Act's requirements, as it did not adequately inform employees of the specific industrial action that might be taken. The Commission found that these procedural deficiencies were significant and could not be overlooked, as the Act's requirements are intended to ensure that any industrial action is conducted in an orderly and lawful manner.

As a result, the Commission ruled that the proposed ballot was not valid and could not proceed. The Commission emphasised the importance of following the procedural requirements set out in the Fair Work Act to maintain industrial harmony and ensure that any industrial action is conducted lawfully. The Commission's decision was based strictly on the procedural shortcomings identified, without delving into the merits of the underlying dispute between the union and the employer.

Construction, Forestry, Mining and Energy Union v Boom Logistics (Vic) 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