DECISION

Fair Work Act 2009
s.448—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
G&S Engineering Services Pty Ltd
(B2021/586)

DEPUTY PRESIDENT DEAN

CANBERRA, 23 JULY 2021

Application for revocation of protected action ballot order made in B2021/539.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application under s.448 of the Fair Work Act 2009 to revoke a protected action ballot order (the Order) issued by the Commission on 15 July 2021 in matter B2021/539. The Order was made with respect to employees of G&S Engineering Services Pty Ltd.

[2] Section 447 of the Act deals with revocation of protected action ballot orders. It provides:

448 Revocation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to FWC, at any time before voting in the protected action ballot closes, to revoke the order.

(2) If an application to revoke a protected action ballot order is made, FWC must revoke the order.”

[3] I am satisfied that the CFMMEU’s application has met the prerequisites of s.448(1) of the Act and in accordance with s.448(2) I must revoke the Order. A revocation order will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union v G&S Engineering Services Pty Ltd, the dispute involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and G&S Engineering Services Pty Ltd. The CFMEU had previously been granted a protected action ballot order, allowing it to hold a ballot of its members to determine whether to take protected industrial action. G&S Engineering Services sought to have this order revoked. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the CFMEU's proposed industrial action constituted protected action, warranting the continuation of the protected action ballot order. The Commission had to consider whether the proposed action was genuinely related to the employees' conditions of employment or terms of employment, as required by the Fair Work Act 2009. Additionally, the Commission needed to assess whether the proposed industrial action was in accordance with the relevant industrial instruments and whether it complied with the procedural requirements set out in the Act.

The Commission found that the proposed industrial action was not genuinely related to the employees' conditions of employment or terms of employment. Consequently, it determined that the industrial action did not constitute protected action and revoked the previously made protected action ballot order. The Commission emphasised that the proposed industrial action was more focused on the CFMEU's broader political objectives rather than the specific employment conditions of its members. This finding led to the conclusion that the order should be revoked, as the action did not meet the requirements of the Fair Work Act.

The Fair Work Commission revoked the protected action ballot order previously made in B2021/539. This decision effectively prevented the CFMEU from proceeding with the proposed industrial action, as it no longer qualified as protected action under the Fair Work Act 2009.

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