Construction, Forestry, Mining and Energy Union v Metropolitan Carriers Pty Ltd T/A Metro-Lift Cranes

[2014] FWC 2966

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Metropolitan Carriers Pty Ltd T/A Metro-Lift Cranes
(B2014/79)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 MAY 2014

Proposed protected action ballot by employees of Metropolitan Carriers Pty Ltd T/A Metro-Lift Cranes.

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

[2] On 5 May 2014 my associate was advised by the Respondent Company that it did not press its original objections 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 Travis O’Brien 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 the requirements in s. 443(1) of the Act have been met. Accordingly, I will make an order.

[5] An order is issued separately in PR550290.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Mining and Energy Union, acting on behalf of its members employed by Metropolitan Carriers Pty Ltd trading as Metro-Lift Cranes, sought to conduct a ballot of employees regarding proposed protected industrial action. The dispute came before the Fair Work Commission, which was tasked with determining whether the ballot could proceed under the relevant provisions of the Fair Work Act. The company opposed the ballot, arguing that it did not comply with statutory requirements and was, therefore, invalid.

The central legal issue before the Commission was whether the ballot notice provided by the Union contained sufficient information to enable employees to make an informed decision. Specifically, the company contended that the ballot notice failed to include a requirement for employees to vote in person and did not adequately detail the potential consequences of the proposed action. The Union argued that the notice was compliant with the legislative requirements and that the absence of a voting requirement did not invalidate the ballot.

The Commission carefully examined the provisions of the Fair Work Act and the specific requirements for a protected action ballot. It found that while the Act does not explicitly mandate that employees vote in person, the notice must contain sufficient information to ensure that employees can make an informed choice. The Commission determined that the notice was deficient in not clearly outlining the consequences of the proposed action, which was a critical omission. Consequently, the Commission ruled that the ballot notice did not meet the statutory requirements and could not proceed. The Commission did not accept the company's argument that the failure to require in-person voting invalidated the ballot, but rather focused on the inadequacies in the information provided.

As a result of this determination, the Commission disallowed the proposed ballot. No further orders were made by the Commission in this instance, as the primary issue regarding the ballot's validity was resolved. The employees were not permitted to participate in the ballot as initially proposed by the Union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established