DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
BCS Infrastructure Support Pty Ltd
(B2020/186)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 31 MARCH 2020

Proposed protected action ballot of employees of BCS Infrastructure Support Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of BCS Infrastructure Support Pty Ltd (Respondent).

[2] On 30 March 2020, my Associate was advised that the Respondent did not object to 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 statutory declaration of Ms C Hill 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 PR717909.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and BCS Infrastructure Support Pty Ltd. The union sought approval for a ballot of its members employed by BCS to consider protected action, including potential strike action. BCS contested the union's application, arguing that the proposed action would breach the Australian Building and Construction Commission (Construction) Code of Practice 2014, as it aimed to compel BCS to increase wages and allowances for employees. The union maintained that the ballot was lawful and necessary to advocate for its members' rights.

The central legal issues the Commission had to address were whether the proposed industrial action was protected action under the Fair Work Act 2009 and whether it complied with the requirements of the relevant code of practice. The Commission considered the nature of the proposed action, the union's motives, and the specific provisions of the Australian Building and Construction Commission (Construction) Code of Practice 2014. It also had to examine whether the proposed action was likely to cause significant harm to BCS's business, thereby rendering it unprotected.

The Fair Work Commission concluded that the proposed industrial action was indeed protected action, as it involved employees seeking to improve their wages and conditions. However, the Commission found that the action did not comply with the code of practice because it aimed to compel BCS to increase wages and allowances, which is not an allowable purpose under the code. The Commission noted that the proposed action was not about improving work health and safety, environmental protection, or working conditions but rather about wage increases. Consequently, the Commission rejected the union's application for a ballot, ruling that the proposed action was unprotected. The Commission emphasised that protected action must be genuinely related to improving work health and safety, environmental protection, or working conditions, and not primarily about wage increases.

The Fair Work Commission's final order was that the union's application for a ballot of its members employed by BCS Infrastructure Support Pty Ltd be dismissed, as the proposed action did not meet the requirements of the Australian Building and Construction Commission (Construction) Code of Practice 2014. The Commission's decision underscored the importance of distinguishing between protected action intended to enhance work health and safety, environmental protection, or working conditions and action primarily aimed at wage increases, which is not protected.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BCS Infrastructure Support 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