Construction, Forestry, Mining and Energy Union v Caelli Constructions (Vic) Pty Ltd (ACN 080 995 204)

The Construction, Forestry, Mining and Energy Union (CFMEU) filed an application against Caelli Constructions (Vic) Pty Ltd (Caelli) concerning the distribution of materials related to a protected action ballot and a proposed employee collective agreement. The case was heard in the Fair Work Commission (FWC). The CFMEU argued that Caelli breached an undertaking not to circulate further material regarding the ballot and to avoid doing so via mail. Caelli contended that the material distributed since 4 June was not related to the ballot but was instead directed at the proposed employee collective agreement and thus did not constitute a breach. The court did not need to resolve the interpretation of the undertaking but noted that Caelli did not disclose its intention to conduct a vote on an employee collective agreement before the close of the ballot, which it considered a lack of candour. This lack of disclosure justified the application, including the claim for interlocutory relief.

The court ordered that Caelli refrain from conducting a vote on an employee collective agreement until after 29 June 2009 or until further order. It considered it inappropriate or unnecessary to impose additional restraints on Caelli regarding treating any vote taken after 29 June 2009 as approving the relevant employee agreement or to prevent the lodgement of any approved agreement under section 344 of the Workplace Relations Act 1996 (Cth). The court scheduled a directions hearing for the substantive action on a date not earlier than 30 June 2009 and reserved liberty for either party to apply on at least 48 hours written notice to the other party.