DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Brockman Engineering Pty Ltd
(B2021/718)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 AUGUST 2021

Proposed protected action ballot of employees of Brockman Engineering Pty Ltd.

[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 Brockman Engineering Pty Ltd (Respondent).

[2] On 25 August 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 PR733194.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) heard a case involving the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Brockman Engineering Pty Ltd. The CFMEU sought to conduct a protected action ballot among Brockman Engineering employees, intending to gather their views on potential industrial action. Brockman Engineering opposed the ballot, arguing it would unduly disrupt their operations. The dispute was brought before the FWC to resolve the conflict between the right of employees to organise and the employer's need to maintain business continuity.

The central legal issues before the FWC were whether the proposed ballot constituted a lawful protected action under the Fair Work Act 2009 (Cth) and whether Brockman Engineering's opposition to the ballot was justified. The FWC had to assess the necessity and proportionality of the ballot in light of the employer's operational requirements and the employees' rights to organise and engage in protected industrial action. The FWC also needed to consider the balance between the employer's business interests and the employees' right to seek support for potential industrial action.

The FWC found that the proposed ballot was a lawful protected action, as it aligned with the provisions of the Fair Work Act. The Commission held that the employees' right to organise and engage in collective bargaining was protected, and the ballot was a necessary step in this process. However, the FWC also acknowledged the employer's legitimate concerns about operational disruption. Ultimately, the FWC ruled that the benefits of the ballot to the employees' right to organise outweighed the potential disruption to the employer's operations. Consequently, the FWC authorised the CFMEU to proceed with the ballot under specified conditions designed to minimise the impact on Brockman Engineering's business.

The FWC ordered that the protected action ballot could proceed, subject to conditions that aimed to mitigate any undue disruption to Brockman Engineering's operations. These conditions included limiting the timing and manner of the ballot to ensure that it did not interfere excessively with the employer's ability to conduct its business. The FWC's decision allowed the employees to exercise their right to organise while also taking into account the employer's legitimate operational needs.

Construction, Forestry, Maritime, Mining and Energy Union v Brockman Engineering 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