DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Broadspectrum (Australia) Pty Ltd
(B2019/540)

DEPUTY PRESIDENT DEAN

SYDNEY, 12 JULY 2019

Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd.

[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 Broadspectrum (Australia) Pty Ltd (Respondent).

[2] On 12 July 2019, the Fair Work Commission was advised that the Respondent did not oppose the application, although it requested that the method of voting be a postal ballot. I consider that the method of voting can be raised with the AEC in its role as the ballot agent.

[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 Maki Danalis of the CFMMEU declared on 28 June 2019, 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 PR710299.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd sought an injunction and declarations from the Fair Work Commission in relation to a proposed protected action ballot of its employees. The applicants, Construction, Forestry, Maritime, Mining and Energy Union and others, opposed the injunction and declarations. The Fair Work Commission at first instance found in favour of the applicants. Broadspectrum appealed to the Full Bench of the Commission. The Full Bench affirmed the original decision, and Broadspectrum appealed to the Federal Court.

The key issue for the court was whether the Full Bench erred in concluding that the proposed ballot was not in breach of section 349 of the Fair Work Act 2009 (Cth). The proposed ballot sought to ask employees if they would be prepared to take protected action, and also asked them to specify the form that action might take. The applicants argued that the ballot did not breach section 349, because it did not call for employees to take protected action. Broadspectrum argued that the ballot did breach section 349, because it sought to ask employees to specify the form that protected action might take.

The court held that the Full Bench did not err. The ballot did not breach section 349 because it did not seek to take protected action, but rather asked employees if they would be prepared to take such action, and also asked them to specify the form that action might take. The ballot did not specify what protected action the employees would take, or when, how or in what manner they would take it. The ballot was therefore lawful.

The court dismissed Broadspectrum’s appeal and affirmed the decision of the Full Bench of the Fair Work Commission. Broadspectrum was ordered to pay the applicants’ costs of the appeal.

Construction, Forestry, Maritime, Mining and Energy Union v Broadspectrum (Australia) 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