DECISION

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

Construction, Forestry, Mining and Energy Union
v
Rohm and Haas Australia Pty Ltd
(B2017/1215)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 DECEMBER 2017

Proposed protected action ballot of employees of Rohm and Haas Australia Pty. Ltd.

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

[2] On 22 December 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 Vroland 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 PR599079.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court was asked to consider the validity of a proposed industrial action ballot conducted by the Construction, Forestry, Mining and Energy Union (CFMEU) of employees of Rohm and Haas Australia Pty Ltd. The dispute arose from the union's intention to ballot its members about potential protected industrial action. The matter was brought before the Court to determine the appropriateness of the ballot and the extent to which the Fair Work Act 2009 (Cth) regulated such actions.

The primary legal issue before the Court was whether the ballot complied with the requirements set out in the Fair Work Act, particularly regarding the timing and the procedural fairness owed to the employer. The Court needed to examine whether the union's actions were in accordance with the Act's provisions, which include specific conditions for initiating and conducting a ballot for protected action. Another significant aspect was whether the union provided adequate notice to the employer and whether the ballot process was conducted in a manner consistent with procedural fairness.

In delivering the judgment, the Court found that the union had failed to comply with the mandatory notice requirements of the Fair Work Act. The union's failure to provide the requisite notice to Rohm and Haas Australia Pty Ltd before conducting the ballot was deemed a breach of the statutory provisions. The Court further held that the union's actions were not procedurally fair as they did not allow the employer an opportunity to respond to the proposed action. Consequently, the Court ruled that the proposed ballot was invalid and not in compliance with the Act. The decision underscored the importance of adhering to the statutory requirements and the necessity for procedural fairness in the conduct of industrial action.

The Court's decision invalidated the proposed ballot and highlighted the importance of compliance with the Fair Work Act. The ruling serves as a reminder for unions to ensure that all procedural requirements are met to avoid similar issues in future industrial actions.

Construction, Forestry, Mining and Energy Union v Rohm and Haas Australia 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