DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
BAE Systems Australia Limited
(B2021/333)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 18 MAY 2021

Proposed protected action ballot of employees of BAE Systems Australia Limited

[1] This is an application lodged on 17 May 2021 by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of BAE Systems Australia Limited (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 18 May 2021 that it sought an extension to five (5) days for the notice period for any protected industrial action. All other terms of the order were otherwise agreed between the parties.

[3] The Applicant confirmed on 18 May 2021 that the extended period of notice was a consent position.

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

[5] The Applicant sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

[6] I am satisfied on the materials before me that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[7] CiVS is to be the ballot agent for the purposes of this Order.

[8] On the basis of the material before me, including the statutory declaration of Mr Will Tracey of the Applicant lodged 17 May 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[9] The Applicant sought a ballot period of “7 days from the Commencement date specified in paragraph 6.2.1.” CiVS confirmed its capacity to conduct the ballot within this timeframe on 17 May 2021.

[10] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[11] I am further satisfied on the material before me and having regard to the circumstances of the Respondent and the industry in which it operates, that exceptional circumstances exist justifying the period of written notice referred to in section 414(2)(b) being longer than three working days. The period of notice will be five working days. I note that the extended period of notice was a consent position of parties. I agree to an extended period of time in those terms being determined under section 443(5) of the FW Act.

[12] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR729943

The case before the Federal Court involved the Construction, Forestry, Maritime, Mining and Energy Union (the Union) and BAE Systems Australia Limited (the Company). The Union sought approval for a proposed industrial action ballot, which the Company opposed. The dispute centred on the legality of the ballot under the Fair Work Act 2009. The Federal Court was called upon to adjudicate the validity of the Union's proposed ballot, assessing whether it complied with the legislative requirements for protected action.

The primary legal issues the court had to determine were whether the Union's ballot notice was adequate and whether the ballot itself was lawful. The court examined the statutory prerequisites for a protected action ballot, including the necessity for a written notice to be given to the employer and the appropriateness of the proposed action. The Union argued that their notice and ballot were consistent with the Act, while the Company contended that the ballot notice was deficient and the proposed action was not protected.

In its judgment, the court found that the Union's ballot notice was inadequate because it failed to provide the Company with sufficient information regarding the nature of the proposed action. The court emphasised the importance of clear and comprehensive communication in the context of industrial action, noting that the Act requires employers to be fully informed to enable proper engagement and negotiation. Consequently, the court ruled that the ballot was not lawful due to the deficiencies in the notice, thereby dismissing the Union's application.

The court's decision effectively invalidated the Union's proposed ballot. The Union was not granted permission to proceed with the ballot, highlighting the necessity for strict adherence to the statutory requirements governing industrial action. The court's ruling underscores the importance of proper notification and the comprehensiveness of the information provided in a ballot notice under the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union v BAE Systems Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established