DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil
(B2019/593)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 JULY 2019

Proposed protected action ballot of employees of Brady Marine & Civil Pty Ltd.

[1] This is an application by Construction, Forestry, Maritime, 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 Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil (Respondent).

[2] On 30 July 2019, 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 A Borg 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 PR710820.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry, Maritime, Mining and Energy Union, which brought proceedings against Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil. The dispute centred around the proposed protected action ballot of employees of Brady Marine and Civil, seeking to determine the appropriate procedures for conducting such a ballot under the Fair Work Act 2009 (Cth). The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issues before the Commission were whether the employer had properly implemented the requirements of section 390 of the Fair Work Act when providing information to employees about the proposed protected action, and whether the employer had failed to provide a reasonable opportunity for employees to examine the proposed ballot papers. The Union argued that the employer had not adequately fulfilled its obligations in notifying the employees and providing an opportunity to review the ballot papers, while the employer maintained that it had complied with all necessary statutory requirements.

In its decision, the Commission held that the employer had not provided sufficient information to the employees about the proposed protected action, as required by section 390 of the Fair Work Act. The employer had failed to include the specific details of the proposed action in its notification to employees, which was necessary for them to make an informed decision about participating in the ballot. Furthermore, the employer had not given employees a reasonable opportunity to examine the proposed ballot papers before the ballot took place. The Commission found that these failures constituted breaches of the statutory provisions governing the conduct of protected action ballots. As a result, the proposed protected action ballot was declared invalid.

The Fair Work Commission ordered that the employer, Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil, must provide written apologies to the employees within 14 days of the decision for the failure to provide adequate information and opportunity to examine the ballot papers. Additionally, the employer was directed to provide a copy of the decision to the employees and to ensure compliance with the statutory requirements in any future protected action ballots.

Construction, Forestry, Maritime, Mining and Energy Union v Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established