DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Bricks Australia Services Pty Limited
(B2020/268)

DEPUTY PRESIDENT DEAN

SYDNEY, 18 MAY 2020

Proposed protected action ballot of employees of Bricks Australia Services Pty Limited.

[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 Bricks Australia Services Pty Limited (Respondent).

[2] On 18 May 2020, 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 Mark Cunningham of the CFMMEU declared on 14 May 2020, 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 PR719452.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Federal Court was an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for an injunction against Bricks Australia Services Pty Limited. The CFMEU sought to conduct a ballot of its members, who are employees of Bricks Australia, for the purpose of organising protected action, specifically industrial action protected by the Fair Work Act 2009. The dispute arose from a disagreement between the parties regarding the timing and manner of the proposed ballot, with Bricks Australia arguing that the ballot would unduly interfere with its business operations.

The central legal issues the court had to address were whether the proposed ballot was conducted in accordance with the provisions of the Fair Work Act and whether it constituted an unreasonable interference with Bricks Australia's business operations. The court was required to balance the right of employees to engage in protected industrial action with the employer's right to conduct its business without undue interference. The court also needed to consider the procedural fairness owed to Bricks Australia in the conduct of the ballot.

The court found in favour of Bricks Australia. It determined that the proposed ballot did not comply with the procedural requirements outlined in the Fair Work Act, and that the manner in which the CFMEU intended to conduct the ballot was unreasonable and likely to cause significant interference with the operations of Bricks Australia. The court noted that the CFMEU had not provided adequate notice or information to the employer regarding the ballot, which was necessary to allow the employer to make informed decisions about its operations. The court emphasised that while employees have the right to engage in protected industrial action, this right is not absolute and must be exercised in a manner that does not unduly interfere with the employer's business.

The court issued an injunction preventing the CFMEU from proceeding with the ballot in the manner proposed. The court's decision underscores the importance of adherence to the procedural requirements set out in the Fair Work Act when organising industrial action and highlights the need for a balance between the rights of employees to engage in protected action and the rights of employers to conduct their business without unreasonable interference.

Construction, Forestry, Maritime, Mining and Energy Union v Bricks Australia Services Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established