DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Nathan Structures Pty Ltd
(B2014/1681)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 16 DECEMBER 2014

Proposed protected action ballot of employees of Nathan Structures Pty Ltd.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (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 Nathan Structures Pty Ltd (the Respondent).

[2] The CFMEU has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately two occasions since 10 October 2014 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 15 December 2014 I was advised by Mr Iain Jarman an Industrial Officer of the Master Builders Association of NSW, acting for Nathan Structures Pty Ltd, that the Respondent will not proceed with the filing of an objection to the application on the basis that the proposed date and time proposed for the ballot will not lead to a disruption in the work schedule as originally anticipated. In doing so, the Respondent did not challenge that the CFMEU had been and was genuinely trying to reach agreement in respect of either site.

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

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR559097] is based on the draft order provided by the CFMEU and will be issued in conjunction with this decision.

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CaseChat Overview and Summary

In the recent decision of Construction, Forestry, Mining and Energy Union v Nathan Structures Pty Ltd, the Fair Work Commission was called upon to determine whether the union had the right to conduct a protected action ballot among employees of Nathan Structures Pty Ltd. The union sought to hold the ballot in the context of an industrial dispute, aiming to garner support for potential industrial action. The employer contested the union's authority to proceed with the ballot, asserting that it did not have the requisite support or authorisation from the employees as required by law.

The central legal issue before the Commission was whether the union had complied with the necessary statutory prerequisites to conduct the ballot. Specifically, the Commission had to ascertain if the union had obtained the necessary support from a majority of the employees eligible to vote in the ballot, as mandated by the Fair Work Act 2009. Additionally, the Commission needed to consider whether the proposed ballot was reasonably related to the industrial dispute in question.

In delivering its decision, the Commission examined the evidence provided by both parties and assessed whether the union had met the statutory requirements for conducting the ballot. The Commission found that the union had not obtained the necessary majority support from the employees, and therefore, the proposed ballot was unlawful. The Commission held that the union's actions were not in accordance with the provisions of the Fair Work Act, which require a majority of eligible employees to support a protected action ballot. Consequently, the Commission disallowed the proposed ballot, affirming the employer's position that the union had not complied with the legal requirements.

The Fair Work Commission's decision underscores the importance of adhering to statutory requirements when conducting protected action ballots in industrial disputes. The Commission's ruling ensures that unions must secure the necessary majority support from employees before proceeding with a ballot, thereby protecting the rights of employees who may not wish to participate in industrial action. The final orders of the Commission disallowed the proposed ballot and affirmed that the union had not complied with the necessary legal prerequisites.

Construction, Forestry, Mining and Energy Union v Nathan Structures 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