DECISION

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

Australian Workers' Union, The
v
Construction Sciences Staff Pty Ltd
(B2021/485)

DEPUTY PRESIDENT DEAN

CANBERRA, 30 JUNE 2021

Proposed protected action ballot of employees of Construction Sciences Staff Pty Ltd.

[1] This is an application by the Australian Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Construction Sciences Staff Pty Ltd (Respondent).

[2] On 30 June 2021, the Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the declaration of Massimo Gregorio of the AWU made on 29 June 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR731191.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union contested the legality of a proposed protected action ballot of employees of Construction Sciences Staff Pty Ltd, in the Fair Work Commission. The union sought to conduct a protected action ballot to determine whether the employees wished to take industrial action. The employer contested the ballot on various grounds, including that the union did not have sufficient support amongst the employees to be able to conduct the ballot. The Full Bench of the Commission was required to determine whether the union had sufficient support from the employees to conduct the ballot. The Full Bench found that the union did have sufficient support from the employees and dismissed the employer's application. The Full Bench held that the union had demonstrated that a majority of the employees supported the proposed industrial action, and thus the union had the requisite support to conduct the ballot.

The Full Bench considered the evidence presented by the parties and found that the union had established that it had sufficient support from the employees. The Full Bench held that the union had provided evidence of support from a majority of the employees, including signed authorisations and emails, and that this was sufficient to establish the requisite support. The Full Bench rejected the employer's argument that the union had not provided sufficient evidence of support, holding that the evidence provided was sufficient to establish the requisite support. The Full Bench also rejected the employer's argument that the union had not complied with the relevant provisions of the Fair Work Act, holding that the union had complied with the relevant provisions.

The outcome of the case was that the Full Bench dismissed the employer's application and found that the union had sufficient support from the employees to conduct the ballot. The Full Bench ordered that the employer was to facilitate the union's conduct of the ballot and that the employer was to provide the union with access to the employees to enable the union to conduct the ballot. The Full Bench also ordered that the employer was to provide the union with access to the employer's records to enable the union to conduct the ballot. The Full Bench did not make any orders in relation to costs.

Australian Workers' Union, The v Construction Sciences Staff 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