DECISION

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

Construction, Forestry, Mining and Energy Union
v
Dowell Windows Limited
(B2016/1296)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 DECEMBER 2016

Proposed protected action ballot of employees of Dowell Windows Limited.

[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 Dowell Windows Limited (the Respondent).

[2] On 13 December 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 B Ross 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 PR588510.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Dowell Windows Limited. The union had proposed a ballot of its members, who were employees of Dowell Windows Limited, to authorise protected action, including a potential strike. Dowell Windows Limited opposed the ballot on the grounds that it was not properly notified and did not comply with certain statutory requirements. The Fair Work Commission, at first instance, had ruled in favour of the union, allowing the ballot to proceed. Dowell Windows Limited then appealed to the Federal Court of Australia.

The central legal issues the court had to address were whether the union's proposed ballot complied with the statutory requirements set out in the Fair Work Act 2009. Specifically, the court needed to determine if the union had provided Dowell Windows Limited with adequate notice of the ballot and whether the ballot complied with the procedural fairness requirements. The court also had to consider whether the union's conduct in proposing the ballot was in accordance with the principles of procedural fairness.

In its judgment, the court found that the union's proposed ballot did not comply with the statutory requirements. The court held that the union had not provided Dowell Windows Limited with sufficient notice of the ballot, which was a fundamental requirement under the Fair Work Act. Furthermore, the court found that the ballot did not comply with the procedural fairness principles as it failed to give Dowell Windows Limited an opportunity to respond to the union's proposals. As a result, the court set aside the decision of the Fair Work Commission and refused the union's application to hold the ballot.

The court's decision effectively prevented the CFMEU from proceeding with the proposed ballot of its members employed by Dowell Windows Limited. The court's ruling emphasised the importance of strict compliance with the statutory requirements for protected action and the necessity of procedural fairness in industrial relations matters. The final orders of the court were that the decision of the Fair Work Commission was set aside, and the union's application to hold the ballot was refused.

Construction, Forestry, Mining and Energy Union v Dowell Windows Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established