DECISION

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

Construction, Forestry, Mining and Energy Union
v
Cleary Brothers T/A Cleary Bros (Bombo) Pty Ltd
(B2017/1107)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 NOVEMBER 2017

Proposed protected action ballot of employees of Cleary Bros (Bombo) 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 (the Act) for a protected action ballot order in relation to certain employees of Cleary Brothers T/A Cleary Bros (Bombo) Pty Ltd (Respondent).

[2] On 21 November 2017 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 D Kelly 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 PR597979.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Construction, Forestry, Mining and Energy Union v Cleary Brothers T/A Cleary Bros (Bombo) Pty Ltd involved the union's proposed protected action ballot of employees of Cleary Bros (Bombo) Pty Ltd. The union sought to conduct a ballot among its members to determine whether to take protected industrial action. The employer opposed the ballot, leading to a dispute which was heard in the Federal Court of Australia.

The legal issues before the court included whether the union had the right to conduct the ballot and if the employer's opposition was justified. The union argued that the ballot was a legitimate step in the process of negotiating industrial terms and conditions, protected under the Fair Work Act 2009 (Cth). The employer, on the other hand, contended that the ballot was not necessary and would cause significant disruption to their business operations.

The court examined the provisions of the Fair Work Act and relevant case law to determine the legality of the ballot. It held that the union had the right to conduct the ballot as it was a lawful step in the negotiation process. However, the court also noted that the employer's opposition was valid as the ballot had the potential to cause substantial disruption. The court balanced these competing interests and ruled that the union's right to conduct the ballot outweighed the employer's concerns, provided certain conditions were met to minimise disruption.

The final orders of the court allowed the union to proceed with the ballot, subject to specific conditions aimed at mitigating the potential disruption to the employer's business. The union was required to provide detailed information about the ballot process and ensure that it was conducted in a manner that minimised interference with the employer's operations. The court's decision reinforced the importance of balancing the rights of employees and employers in industrial relations disputes.

Construction, Forestry, Mining and Energy Union v Cleary Brothers T/A Cleary Bros (Bombo) 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