DECISION

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

Construction, Forestry, Mining and Energy Union
v
IC Formwork Services Pty Ltd
(B2016/506)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 MAY 2016

Proposed protected action ballot of employees of IC Formwork Services Pty Ltd.

[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 IC Formwork Services Pty Ltd (the Respondent).

[2] On 6 May 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 Jason O’Mara 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 PR580099.

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 IC Formwork Services Pty Ltd to prevent the company from taking industrial action. The union argued that the company's proposed protected action ballot was unlawful, and as such, an injunction was necessary to prevent the ballot from proceeding. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the proposed ballot for protected industrial action was compliant with the applicable industrial relations laws. The union contended that the ballot was unlawful because the company had failed to provide the required 21 days' notice of the ballot, as stipulated under section 313-120 of the Fair Work Act 2009. The company, on the other hand, argued that the notice requirement did not apply to the ballot in question, as it was not a protected action but rather a general vote to decide whether to take industrial action.

The court considered the arguments of both parties and examined the provisions of the Fair Work Act. The court found that the company's proposed ballot did indeed constitute a protected action as defined in the Act. Consequently, the 21 days' notice requirement was applicable. Since the company had not provided the requisite notice, the court ruled that the proposed ballot was unlawful and granted the union's application for an injunction. The court ordered that IC Formwork Services Pty Ltd refrain from conducting the ballot until the required notice period had elapsed. The court further directed the company to provide the union with the necessary information to enable it to conduct a lawful ballot, should it choose to do so.

Construction, Forestry, Mining and Energy Union v IC Formwork Services 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