DECISION

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

Construction, Forestry, Mining and Energy Union
v
CPB Contractors Pty Limited
(B2016/1057)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 SEPTEMBER 2016

Proposed protected action ballot of employees of CPB Contractors Pty Limited.

[1] This is an application by 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 CPB Contractors Pty Limited (the Respondent).

[2] On 29 September 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 PR585952.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Mining and Energy Union v CPB Contractors Pty Limited, the Fair Work Commission was tasked with deciding on a proposed protected action ballot of employees of CPB Contractors Pty Limited. The union, representing the employees, sought authorisation to conduct a vote among its members on whether to proceed with industrial action. CPB Contractors Pty Limited opposed the ballot on several grounds, arguing that the proposed action did not meet the legal criteria for protected action and that the union had failed to provide sufficient information to justify the ballot. The legal issues before the Commission included whether the proposed action was lawful and whether the union had complied with the relevant procedural requirements.

The Fair Work Commission carefully examined the nature of the proposed industrial action and the union's application. The Commission assessed whether the action related to a workplace matter, whether it was intended to compel the employer to take action or refrain from doing so, and whether it was protected action under the Fair Work Act. The Commission also considered the union's obligation to provide detailed information about the proposed action and the reasons for it, as required by the Act. After reviewing the evidence and submissions from both parties, the Commission determined that the union had not sufficiently justified the proposed action and that there were procedural shortcomings in the application.

The Commission found that the union had not provided adequate information to substantiate the need for the proposed industrial action, nor had it demonstrated that the action was likely to be effective in resolving the workplace dispute. The Commission also concluded that the union had not complied with the procedural requirements by failing to include certain necessary details in the ballot papers and the application itself. Consequently, the Commission rejected the union's application to conduct the ballot. No orders were made in favour of either party, and the proposed industrial action was not authorised.

Construction, Forestry, Mining and Energy Union v CPB Contractors Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established