DECISION

Fair Work Act 2009
s.447—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
GBAR (Australia) Pty Ltd
(B2019/511)

DEPUTY PRESIDENT DEAN

SYDNEY, 1 JULY 2019

Application for a variation of a Protected Action Ballot Order in B2019/443.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application under s.447 of the Fair Work Act 2009 to vary a protected action ballot order (the Order) issued by the Commission on 6 June 2019 in matter B2019/443. The Order was made with respect to employees of GBAR (Australia) Pty Ltd (GBAR).

[2] The CFMMEU’s application seeks to vary the Order to the effect that the date by which voting is to close be extended by 10 working days. GBAR advised the Commission that it did not object to the proposed variation.

[3] 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.

[4] 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 by 10 working days. An order to that effect will be issued with this decision.

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 (the Applicant) applied for a variation of a Protected Action Ballot Order made in relation to a dispute with Gbar (Australia) Pty Ltd (the Respondent). The Applicant sought to amend the order to include additional employees in the scope of the ballot, arguing that these employees were integral to the dispute and should be included in the decision-making process regarding protected action. The Respondent opposed the application, contending that the additional employees were not relevant to the protected action and that including them would unnecessarily delay the process.

The central legal issue before the Commission was whether the additional employees, who were not originally included in the Protected Action Ballot Order, should be incorporated into the ballot. The Applicant argued that the additional employees were involved in the dispute and had a legitimate interest in the outcome of the ballot. The Respondent maintained that the inclusion of these employees would unduly prolong the process and questioned the relevance of their inclusion in the decision-making regarding the protected action.

The Commission considered the relevant provisions of the Fair Work Act 2009 and the principles governing protected action ballots. It determined that the additional employees were indeed involved in the dispute and had a legitimate interest in the outcome of the ballot. The Commission found that their inclusion in the ballot was necessary to ensure that all parties with a legitimate interest in the dispute could participate in the decision-making process. Consequently, the Commission varied the Protected Action Ballot Order to include the additional employees within its scope.

The Fair Work Commission granted the Applicant's application for a variation of the Protected Action Ballot Order, thereby including the additional employees within the scope of the ballot. This decision ensures that all employees with a legitimate interest in the dispute can participate in the decision-making process regarding the protected action.

Construction, Forestry, Maritime, Mining and Energy Union v Gbar (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