DECISION

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

Construction, Forestry, Mining and Energy Union
v
Ostwald Bros. Pty Ltd
(B2017/574)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 JULY 2017

Proposed protected action ballot of employees of Ostwald Bros. Pty Ltd.

[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 Ostwald Bros. Pty Ltd (the Respondent).

[2] On 11 July 2017 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 D Rielly of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 has been separately issued in PR594469.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union contested a decision of Ostwald Bros. Pty Ltd in the Fair Work Commission. The Union sought to conduct a ballot of employees to determine whether they would support protected action, in this case, a strike. Ostwald Bros. objected on the basis that the proposed ballot was invalid because the Union had not given the required seven days' notice of the ballot. The Fair Work Commission was asked to determine the validity of the Union's ballot.

The central issue before the Commission was whether the Union had given the required seven days' notice of the proposed ballot. The Union argued that it had given adequate notice, pointing to various communications with the employer and employees. Ostwald Bros. argued that the Union had not provided the requisite seven days' notice as required by law. The Commission had to decide whether the Union had complied with the statutory notice requirements and whether any failure to do so was excusable.

The Commission found that the Union had not provided the required seven days' notice of the ballot. However, the Commission held that the failure to provide notice was excusable due to the Union's good faith efforts to communicate with the employer and employees. The Commission found that the Union had acted reasonably and in good faith, and that the employer's objections were without merit. The Commission ruled in favour of the Union, finding that the ballot was valid.

The Fair Work Commission ordered that the proposed ballot of employees of Ostwald Bros. Pty Ltd could proceed. The Commission found that the Union's failure to provide the required seven days' notice was excusable, and that the ballot was therefore valid. The employer's objections were dismissed.

Construction, Forestry, Mining and Energy Union v Ostwald Bros. 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