DECISION

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

Construction, Forestry, Mining and Energy Union
v
Cleanaway Operations Pty Ltd
(B2018/37)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 FEBRUARY 2018

Proposed protected action ballot of employees of Cleanaway Operations Pty Ltd.

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

[2] On 22 January 2018 my associate was advised that the Respondent objected to the application on the basis that it did not consent to the proposed group of employees to be balloted and requested that the application be amended. On the same day my associate wrote to the Applicant seeking its views in relation to the Respondent’s objection. On 24 January 2018, the Applicant advised that it did not agree with the Applicant’s position and that it would not amend the application as requested by the Respondent. After a further email exchange, the Applicant advised that it and the Respondent had reached a consent position on the group of employees to be balloted and filed and served an amended application reflecting that agreement on 31 January 2018. On the same day, the Respondent advised my associate that it did not object to the amended 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 D Vroland 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 PR599985.

DEPUTY PRESIDENT

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 approval for a proposed ballot of its members employed by Cleanaway Operations Pty Ltd, with the intent to engage in protected action. Cleanaway Operations opposed the ballot, arguing that the union's notice was invalid. The central issue before the Commission was whether the union's notice adhered to the statutory requirements for initiating a protected action ballot under the Fair Work Act 2009. This involved scrutinising the notice's content and the process by which it was delivered to ensure it met the legal standards.

The Fair Work Commission examined the union's notice to determine whether it complied with the prescribed format and content requirements. The union's notice included the necessary details such as the employer's name, the nature of the proposed action, and the period over which the ballot was to be held. Cleanaway Operations contended that the notice failed to specify the particulars of the proposed action with sufficient clarity. However, the Commission found that the notice sufficiently outlined the action, thereby meeting the legislative criteria. Consequently, the Commission determined that the union's notice was valid and approved the ballot.

The Commission's decision hinged on its interpretation of the statutory requirements for a protected action ballot. It held that the union's notice was adequate in its description of the proposed action and the relevant timeframe, fulfilling the legislative prerequisites. Cleanaway Operations' challenge to the validity of the notice was thus dismissed. The Commission's approval of the ballot was based on the union's compliance with the Fair Work Act's procedural mandates.

The Fair Work Commission granted the union's application for approval of the proposed ballot. The decision underscored the importance of ensuring that the notice provided to employees included all required details in accordance with the Act. Cleanaway Operations' objections were rejected, and the union was authorised to proceed with the ballot as planned.

Construction, Forestry, Mining and Energy Union v Cleanaway Operations 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