DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Harbour City Ferries Pty Ltd
(B2014/1692)

DEPUTY PRESIDENT BOOTH

SYDNEY, 16 DECEMBER 2014

Proposed protected action ballot of employees of Harbour City Ferries Pty Ltd.

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

[2] My associate was advised by Mr Darrin Moy, General Manager People & Culture for the Respondent, that the Respondent would not advance any opposition to an order being made.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order based on the draft order provided by the Applicant has been issued in conjunction with the decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved a dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) and Harbour City Ferries Pty Ltd. The CFMEU had initiated a protected action ballot among Harbour City Ferries employees, seeking to authorise industrial action in pursuit of better working conditions. Harbour City Ferries challenged the legality of the ballot, arguing that it was not properly authorised under the Fair Work Act 2009 (Cth). The matter was brought before the Fair Work Commission to determine the validity of the ballot process and whether the CFMEU had complied with the necessary legislative requirements.

The central legal issue before the Commission was whether the CFMEU had complied with the statutory provisions regarding the authorisation of protected action ballots. Specifically, the Commission had to examine whether the ballot notice provided by the CFMEU sufficiently detailed the proposed industrial action, the reasons for it, and whether it complied with the procedural requirements outlined in the Fair Work Act. Additionally, the Commission needed to assess whether the CFMEU had the requisite authorisation to conduct the ballot, given its status as a registered organisation.

In its decision, the Fair Work Commission held that the CFMEU had not complied with the necessary legal requirements for conducting a protected action ballot. The Commission found that the ballot notice did not adequately specify the proposed industrial action and the reasons for it, which was a fundamental requirement under the Act. Furthermore, the Commission determined that the CFMEU's authorisation to conduct the ballot was questionable due to procedural shortcomings. Consequently, the Commission ruled that the ballot was invalid and did not meet the legal standards set by the Fair Work Act.

As a result of the Commission's findings, the proposed protected action ballot was declared unlawful. The Commission's decision effectively prevented the CFMEU from proceeding with the industrial action as planned, pending compliance with the necessary legal requirements for future ballot authorisations.

Construction, Forestry, Mining and Energy Union v Harbour City Ferries 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