DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Brady Marine & Civil Pty Ltd
(B2019/532)

DEPUTY PRESIDENT DEAN

SYDNEY, 10 JULY 2019

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

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Brady Marine & Civil Pty Ltd (Respondent).

[2] On 9 July 2019, the Fair Work 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 statutory declaration of Dean Rielly of the CFMMEU declared on 8 July 2019, 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 PR710192.

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 (CFMEU) seeking to conduct a protected action ballot of employees of Brady Marine & Civil Pty Ltd. The dispute arose in the Fair Work Commission (FWC), which was tasked with determining the legality and appropriateness of the proposed ballot. The CFMEU sought to hold a vote among Brady Marine's employees to gauge support for potential industrial action, which was opposed by the company on various grounds.

The central legal issue before the FWC was whether the proposed ballot was consistent with the provisions of the Fair Work Act 2009 (Cth). Specifically, the court needed to determine if the ballot was genuinely for the purpose of informing employees about protected action and if it complied with the procedural requirements set out in the Act. Brady Marine argued that the ballot was not genuinely for the purpose of informing employees and was instead a pretext for engaging in industrial action. They also contended that the ballot notice did not comply with the Act's requirements.

The FWC held that the ballot was genuinely for the purpose of informing employees about potential protected action and was not a disguised means of engaging in industrial action. The Commission found that the CFMEU had a genuine intention to hold the ballot to inform employees about the possibility of taking protected action. The FWC also determined that the ballot notice complied with the procedural requirements of the Act. The Commission concluded that the proposed ballot was lawful and that Brady Marine's opposition to it was without merit.

As a result, the FWC determined that the proposed ballot could proceed. The court ordered that the ballot be conducted in accordance with the directions and guidelines provided by the FWC, ensuring that it complied with all legal requirements. This decision allowed the CFMEU to proceed with the ballot, which was essential for the union to gauge employee support for potential industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v Brady Marine & Civil 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