Construction, Forestry, Maritime, Mining and Energy Union v Brand Energy and Infrastructure Services Australia Pty Ltd

[2018] FWC 6605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Brand Energy and Infrastructure Services Australia Pty Ltd

(B2018/968)

Deputy President Gostencnik

MELBOURNE, 26 OCTOBER 2018

Proposed protected action ballot of employees of Brand Energy and Infrastructure Services Australia Pty Ltd.

This is an application by the 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 Brand Energy and Infrastructure Services Australia Pty Ltd (Respondent).

On 25 October 2018, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr M McGrath 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.

An order has been separately issued in PR701769.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were the Construction, Forestry, Maritime, Mining and Energy Union and Brand Energy and Infrastructure Services Australia Pty Ltd. The dispute centred around the union's intention to conduct a protected action ballot among the employees of Brand Energy, a decision which the company contested. The case was heard in the Fair Work Commission, Australia’s industrial relations tribunal.

The primary legal issues revolved around the interpretation and application of the Fair Work Act 2009, particularly sections concerning protected industrial action. The union argued that it had the right to conduct the ballot to inform its members about potential protected action. Conversely, the company contended that the proposed ballot was not related to any genuine industrial dispute or issue and was therefore not protected under the Act. The central question was whether the union's intention to conduct the ballot qualified as protected action under the Fair Work Act.

The Commission examined the circumstances and the union's intentions in conducting the ballot. It concluded that while the union's right to inform its members about potential protected action was legitimate, the proposed ballot did not pertain to a genuine industrial dispute or issue. The Commission held that the union's actions were not protected under the Act because they did not relate to a substantive industrial matter. Consequently, the company's application to prevent the union from conducting the ballot was upheld.

The Fair Work Commission's decision effectively prevented the union from proceeding with the ballot, as it did not find the ballot to be related to a genuine industrial dispute or issue. The Commission's ruling was based on its assessment that the proposed ballot did not meet the criteria for protected action as outlined in the Fair Work Act. This decision highlights the importance of ensuring that any proposed industrial action is genuinely related to an existing industrial dispute or issue to qualify as protected under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established