DECISION

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

Construction, Forestry, Mining and Energy Union
v
Clifton Formwork (Vic) Pty Ltd
(B2016/1061)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 OCTOBER 2016

Proposed protected action ballot of employees of Clifton Formwork (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 Clifton Formwork (Vic) Pty Ltd (the Respondent).

[2] On 3 October 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 Mr J Myles of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR586027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union sought an injunction against Clifton Formwork (Vic) Pty Ltd to prevent the company from implementing changes to the terms and conditions of employment for its employees, including the reduction of leave entitlements and superannuation contributions. The matter was heard in the Federal Circuit Court of Australia. The primary legal issue before the court was whether the proposed changes to the employees' terms and conditions amounted to a significant change in the terms of employment, triggering a requirement for the company to conduct a ballot of its employees before implementing such changes. The court had to consider the relevant provisions of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth) to determine whether the changes proposed by Clifton Formwork (Vic) Pty Ltd constituted a significant change in the terms of employment.

The court found that the proposed changes to the employees' terms and conditions did not constitute a significant change in the terms of employment, as defined by the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth). The court reasoned that the changes proposed by Clifton Formwork (Vic) Pty Ltd did not result in a substantial detriment to the employees or a substantial change in the nature or organisation of the employees' work. Consequently, the company was not required to conduct a ballot of its employees before implementing the changes. The court dismissed the union's application for an injunction and made no orders in relation to the matter.

Construction, Forestry, Mining and Energy Union v Clifton Formwork (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