DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Bricks Australia Services Pty Limited T/A PGH Bricks & Pavers
(B2021/961)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 OCTOBER 2021

Proposed protected action ballot of employees of Bricks Australia Services Pty Limited T/A PGH Bricks & Pavers

[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 Bricks Australia Services Pty Limited T/A PGH Bricks & Pavers (Respondent).

[2] On 7 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 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 PR734693.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to hold a protected action ballot of employees of Bricks Australia Services Pty Limited, trading as PGH Bricks & Pavers. The CFMEU sought to conduct the ballot to enable employees to vote on whether to take protected action, specifically industrial action. The matter was brought before the Commission following an objection by the employer to the ballot. The Commission needed to decide whether the ballot could proceed and if any conditions should apply.

The legal issues before the Commission included whether the proposed ballot complied with the relevant sections of the Fair Work Act 2009, and whether the ballot met the necessary criteria for lawful industrial action. The employer argued that the ballot did not comply with procedural requirements and that the employees did not have a genuine dispute with the employer. The CFMEU contended that the ballot was necessary to facilitate lawful industrial action and that the employer's objections were unfounded.

The Fair Work Commission found that the proposed ballot complied with the statutory requirements for a protected action ballot. The Commission determined that the employees had a genuine dispute with the employer and that the ballot was an appropriate means to facilitate lawful industrial action. The Commission concluded that the procedural requirements were met and dismissed the employer's objections. The ballot was allowed to proceed, subject to the Commission's conditions.

The Commission ordered that the ballot be conducted in accordance with the terms specified, ensuring that all procedural requirements were met. The employer was directed to facilitate the ballot and provide necessary information to employees. The CFMEU was required to ensure that the ballot process was fair and that the results were accurately reported to the Commission. The Commission retained jurisdiction to monitor and intervene if necessary to ensure compliance with its conditions.

Construction, Forestry, Maritime, Mining and Energy Union v Bricks Australia Services Pty Limited T/A PGH Bricks & Pavers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established