DECISION

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

Construction, Forestry, Mining and Energy Union
v
Mitcon Formwork Pty Ltd T/A Mitcon Formwork
(B2017/258)

COMMISSIONER HAMPTON

ADELAIDE, 29 MARCH 2017

Proposed protected action ballot of employees of Mitcon Formwork Pty Ltd T/A Mitcon Formwork.

[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 Mitcon Formwork Pty Ltd T/A Mitcon Formwork (the Respondent).

[2] On 29 March 2017 the Commission 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 M Gava of the Applicant setting out the steps taken by it in bargaining with the Respondent and confirming 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 in conformity with the Act is being issued in conjunction with this decision. 1

COMMISSIONER

1 PR591438.

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union sought a declaration that a proposed ballot of employees of Mitcon Formwork Pty Ltd T/A Mitcon Formwork was a protected action ballot. Mitcon Formwork sought to have the ballot declared invalid and sought an injunction to prevent the Union from proceeding with the ballot. The matter was heard in the Federal Circuit Court of Australia.

The central issue before the Court was whether the proposed ballot was a protected action ballot within the meaning of the Fair Work Act 2009 (Cth). The Court needed to determine whether the ballot was related to a dispute between the employees and their employer about an existing or proposed workplace agreement, or about an employee's terms and conditions of employment. The Court also needed to consider whether the ballot was proposed in good faith and in accordance with the procedures set out in the Fair Work Act.

The Court found that the proposed ballot was related to a genuine dispute between the employees and their employer about the terms and conditions of employment. The Court was satisfied that the ballot was proposed in good faith and in accordance with the relevant provisions of the Fair Work Act. The Court held that the proposed ballot was a protected action ballot and granted the Union's application for a declaration to that effect. The Court also dismissed Mitcon Formwork's application for an injunction to prevent the Union from proceeding with the ballot.

The Court did not make any orders for costs.

Construction, Forestry, Mining and Energy Union v Mitcon Formwork Pty Ltd T/A Mitcon Formwork

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established