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
(B2021/160)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 MARCH 2021

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) (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 (Respondent).

[2] On 11 March 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 Mr David Vroland 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 PR727706.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to conduct a ballot of employees of Bricks Australia Services Pty Limited T/A PGH Bricks & Pavers to determine whether the employees supported protected action. The company opposed the ballot on the grounds that it was not a genuine ballot as required by section 208 of the Fair Work Act 2009 (Cth). The case was heard in the Fair Work Commission.

The central legal issue was whether the ballot was genuine as required by the Act. The Act defines a genuine ballot as one that is carried out in good faith for the purpose of ascertaining the views of the employees on the proposed action. The company argued that the ballot was not genuine because the CFMEU had already decided to take action and was merely seeking to formalise the decision through the ballot process. The CFMEU contended that the ballot was genuine as it was conducted in good faith to ascertain the employees' views.

The Fair Work Commission found that the ballot was genuine. The Commission held that the fact that the CFMEU had already decided to take action did not necessarily mean that the ballot was not genuine. The Commission found that the ballot was conducted in good faith and was a genuine attempt to ascertain the employees' views on the proposed action. The Commission noted that the CFMEU had a legitimate interest in taking action on behalf of its members and that the ballot was a reasonable means of determining whether the employees supported the proposed action.

The Fair Work Commission ordered that the ballot be conducted as proposed by the CFMEU. The company was directed to allow the CFMEU to conduct the ballot and to provide any necessary assistance to facilitate the process. The company was also ordered to refrain from taking any action that would interfere with the ballot.

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