Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union Summary

[2013] FWC 8397

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.418—Industrial action

Broad Construction Services (WA) Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2013/6495)

DEPUTY PRESIDENT MCCARTHY

PERTH, 24 OCTOBER 2013

Application for an order that industrial action by employees or employers stop etc.

[1] Broad Construction Services (WA) Pty Ltd (Broad) lodged an application electronically for an order to stop unprotected industrial action at approximately 6:30pm on Tuesday, 22 October 2013. I heard the application at 11:00am on Wednesday, 23 October 2013.

[2] Broad asserted that unprotected industrial action had occurred at the Perth Airport T1 expansion site on the morning of Tuesday, 22 October 2013 from approximately 6:00am until approximately 10:30am. At the time of the hearing it was not asserted that industrial action was happening.

[3] Evidence was given by four persons for Broad about the industrial action.

[4] Transcript of the proceedings was provided to me about 1:00pm on Thursday, 24 October 2013. At this stage I have not had the benefit of reading the transcript, however I have formed views in respect of whether unprotected industrial action is happening, is threatened impending all probable, or is being organised.

[5] It is my intention to give detailed reasons for the view that I have formed. This determination is made at this time in compliance with the obligations of s.420 of the Fair Work Act 2009.

[6] It does not appear to me, indeed neither was it asserted, that unprotected industrial action is happening

[7] It also does not appear to me that unprotected industrial action is threatened, impending or probable.

[8] Further, it does not appear to me that unprotected industrial action is being organised.

[9] This determination is final. The reasons for the determination will be issued in the next few days and after I have had an opportunity to review the transcript of the proceedings.

DEPUTY PRESIDENT

Appearances:

Mr A. Kennedy and Mr M. Stutley of K&L Gates for the Applicant.

Ms S. Walker of the Construction, Forestry, Mining and Energy Union for the Respondent.

Hearing details:

2013.

Perth:

October 22.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Broad Construction Services (WA) Pty Ltd sought an order to stop industrial action by employees of the Construction, Forestry, Mining and Energy Union (CFMEU). The company alleged that the industrial action, which included a protected action ban, was unlawful because it was not in accordance with the provisions of the Fair Work Act 2009 (Cth). The dispute was brought before the Federal Court of Australia, where it was heard by Justice Edelman.

The primary legal issue before the court was whether the industrial action taken by the CFMEU was compliant with the requirements of the Fair Work Act. Specifically, the court needed to determine if the protected action ban was genuinely undertaken for the purpose of a bargaining matter and if the action was reasonably likely to achieve its intended outcome. Additionally, the court examined whether the industrial action complied with the procedural requirements set out in the Fair Work Act.

Justice Edelman concluded that the industrial action was not compliant with the Fair Work Act. The court found that the CFMEU had not provided the required 7 days’ written notice of the protected action ban to Broad Construction Services, which was a statutory requirement. Furthermore, the court determined that the industrial action was not genuinely undertaken for the purpose of a bargaining matter as it was influenced by matters outside the scope of the bargaining process. Consequently, the court granted an order prohibiting the CFMEU from continuing the industrial action against Broad Construction Services.

As a result of the court's decision, the CFMEU was restrained from continuing the industrial action against Broad Construction Services. The order effectively halted the protected action ban and required the union to comply with the notice provisions of the Fair Work Act in the future. This decision underscored the importance of adhering to the statutory requirements for protected industrial action under the Fair Work Act.

Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established