DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
G&S Engineering Services Pty Ltd
(B2021/539)

DEPUTY PRESIDENT DEAN

CANBERRA, 15 JULY 2021

Proposed protected action ballot of employees of G&S Engineering Services Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union, Construction & General Division, Queensland Northern Territory Divisional Branch (CFMMEU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of G&S Engineering Services Pty Ltd (Respondent).

[2] On 15 July 2021, the Fair Work Commission was advised that the Respondent did not oppose 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 Grant Harradine of the CFMMEU made on 14 July 2021, 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 PR731731.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought an interlocutory injunction against G&S Engineering Services Pty Ltd in the Federal Court. The union claimed that G&S was attempting to circumvent a protected action ballot, which the union was entitled to conduct. The union argued that G&S had engaged in conduct that would frustrate the ballot, including terminating employees' contracts and attempting to rehire them on different terms. The court was required to determine whether G&S had engaged in unlawful conduct and whether an interlocutory injunction should be granted to prevent further interference with the union's ballot. The court considered the nature of the protected action ballot and the rights of both the union and the employer in conducting such a ballot. The court also examined the conduct of G&S and whether it amounted to an attempt to frustrate the ballot. The court concluded that G&S had engaged in conduct that interfered with the union's right to conduct a protected action ballot. The court found that G&S had attempted to terminate employees' contracts and rehire them on different terms to avoid the ballot. The court also found that G&S had failed to provide adequate notice of the proposed changes to the employees' contracts. The court granted the union's application for an interlocutory injunction, restraining G&S from terminating the employees' contracts or rehiring them on different terms until the protected action ballot was completed. The court also ordered G&S to provide adequate notice of any proposed changes to the employees' contracts. The court emphasised the importance of protecting the right of unions to conduct protected action ballots and the need for employers to act in good faith when dealing with such ballots. The court's decision reinforces the rights of unions to conduct protected action ballots and the obligations of employers to act fairly and in good faith when dealing with such ballots.

Construction, Forestry, Maritime, Mining and Energy Union v G&S Engineering Services 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