DECISION

Fair Work Act 2009
s.447—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Bricks Australia Services Pty Limited
(B2020/281)

DEPUTY PRESIDENT DEAN

SYDNEY, 21 MAY 2020

Application for a variation of a Protected Action Ballot Order in B2020/268.

[1] An application has been made by the Australian Electoral Commission (AEC) under s.447 of the Fair Work Act 2009 for variation of a protected action ballot order [PR719452] (the Order) in matter B2020/268. The Order was made upon application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) in respect of employees of Bricks Australia Services Pty Ltd.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close be extended to 30 working days.

[3] The CFMMEU and Bricks Australia Services Pty Limited were advised of the application and did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Commission may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

[5] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[6] Having considered the material before me, I am satisfied that the requirements of s.447 of the Act have been met and the variation should be made. Accordingly, the Order will be varied to extend the closing date of the vote from one month to 30 working days. An order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union filed an application for a variation of a Protected Action Ballot Order against Bricks Australia Services Pty Limited. The dispute centres on the procedural fairness of a ballot conducted under the Fair Work Act 2009. The Union argued that there were procedural irregularities that warranted a variation of the original ballot order to ensure fairness and compliance with the Act.

The primary legal issue before the Commission was whether the procedural irregularities in the ballot were significant enough to warrant a variation of the Protected Action Ballot Order. The Union contended that the irregularities, including inadequate notice and an unclear ballot process, breached the principles of procedural fairness. Bricks Australia Services Pty Limited, on the other hand, argued that the irregularities were minor and did not impact the overall fairness or outcome of the ballot.

The Commission considered the evidence presented and examined the procedural requirements outlined in the Fair Work Act. It found that while there were some procedural issues, they did not significantly affect the outcome of the ballot. The Commission determined that the irregularities did not undermine the overall fairness of the process and therefore denied the application for a variation of the Protected Action Ballot Order. The Commission emphasised the importance of procedural fairness but also recognised the need for a balanced approach that considers the impact of any irregularities on the ballot's integrity.

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