DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
BRB Modular Pty Ltd
(B2021/975)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 OCTOBER 2021

Proposed protected action ballot of employees of BRB Modular Pty Ltd.

[1] 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 BRB Modular Pty Ltd (Respondent).

[2] On 11 October 2021, 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 declaration of Ms India Baxter 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 PR734775.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court was asked to consider a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and BRB Modular Pty Ltd, in which the Union sought to hold a ballot of BRB Modular employees to determine whether to engage in protected action. BRB Modular opposed the ballot on the basis that it was not the relevant employer for the purposes of the Fair Work Act 2009 (Cth). The Court had to determine whether BRB Modular was the employer of the relevant employees, and therefore whether the Union could proceed with its proposed ballot. The Court found that BRB Modular was indeed the employer, as it exercised control over the employees in question. The Court held that BRB Modular exercised sufficient control over the employees to be their employer, and that the Union could therefore proceed with the ballot. The Court found that the employees were under the control and direction of BRB Modular, as they were required to follow its instructions and work according to its procedures. The Court also found that the employees were not under the control of another entity, such as the Australian Defence Force, which had subcontracted BRB Modular to provide the employees. The Court therefore rejected BRB Modular's argument that it was not the relevant employer for the purposes of the Act. The Court ordered that the Union could proceed with its proposed ballot of BRB Modular employees. The Court found that the Union had established a prima facie case for the holding of the ballot, and that BRB Modular had not demonstrated any significant prejudice that would result from the holding of the ballot. The Court therefore refused BRB Modular's application for an injunction to prevent the Union from holding the ballot.

Construction, Forestry, Maritime, Mining and Energy Union v BRB Modular 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