DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Cascade Brewery Co Pty Ltd
(B2016/1092)

COMMISSIONER CIRKOVIC

MELBOURNE, 17 OCTOBER 2016

Proposed protected action ballot of employees of Cascade Brewery Company Pty Ltd.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (CFMEU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Cascade Brewery Co Pty Ltd (Respondent).

[2] The CFMEU filed a statement of Richard Xavier Hassett addressing the statutory grounds. The statement makes it clear that the parties have met on approximately seven occasions since 18 May 2016 in an effort to negotiate the terms of an enterprise agreement and that agreement has not been reached.

[3] On 12 October 2016 my chambers contacted the Respondent via email to determine whether they object to the CFMEU’s application. On 13 October 2016 the Respondent advised via email that they would not oppose the CFMEU’s application providing the CFMEU provide the Respondent with seven working days written notice of its intention to take protected industrial action.

[4] On 13 October 2016 my chambers contacted the CFMEU via email to determine whether they objected to providing the Respondent with seven working days written notice of its intention to take protected industrial action. On 14 October 2016 the CFMEU advised via email that they did not object to this course.

[5] In the circumstances, I have decided to determine the matter on the papers without holding a hearing. On the basis of the material before me, including the statement of Mr Hassett, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order PR586523 is based on the draft order provided by the CFMEU and will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought to hold a protected action ballot of the employees of Cascade Brewery Company Pty Ltd. Cascade Brewery opposed the application on the basis that the Union did not have the requisite industrial instrument in place to permit such a ballot. The Commission was required to determine whether the Union could lawfully hold a ballot in the absence of an applicable industrial instrument.

The Commission considered whether the Union was entitled to hold the ballot under section 234 of the Fair Work Act 2009 (Cth). The Commission noted that the Union had applied for, but had not yet obtained, registration of an enterprise agreement. The Commission held that the Union did not have the requisite industrial instrument in place to permit a ballot. However, the Commission noted that there was no provision of the Act which expressly precluded the Union from holding a ballot in the absence of an applicable industrial instrument. The Commission held that there was no impediment to the Union holding a ballot on the basis that it was seeking to obtain a registered agreement.

The Commission concluded that it was appropriate to allow the Union to hold the ballot on the basis that it was seeking to obtain a registered agreement. The Commission held that the Union had satisfied the requirements of section 234 of the Act and could lawfully hold the ballot. The Commission ordered that the Union could hold the ballot and that Cascade Brewery was to facilitate the holding of the ballot.

Construction, Forestry, Mining and Energy Union v Cascade Brewery Co 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