DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v
SA Construct Pty Ltd
(B2021/129)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 4 MARCH 2021

Proposed protected action ballot of employees of SA Construct Pty Ltd – whether notification time should be extended – no exceptional circumstances – orders made

[1] This matter concerns an application made to the Commission on 1 March 2021 by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or the Union) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of SA Construct Pty Ltd (SA Construct or the employer).

[2] Section 441 of the FW Act requires such applications to be determined within two working days so far as practicable.

[3] On 2 March 2021 the employer advised that it did not oppose the making of the order but sought that the notification time for any protected action be extended from 3 days to 5 days.

[4] The Union opposes that extension.

[5] Both the employer and the Union have made written submissions on the disputed issue. 1 Each have agreed to the notification-time dispute being determined on the papers.

Facts

[6] SA Construct is a private business operating in the construction industry. It provides construction services to the private and public sector in both Adelaide and regional South Australia.

[7] SA Construct employs persons under the SA Construct Pty Ltd On-site Enterprise Agreement 2016 (the current Agreement).

[8] The current Agreement was approved by the Commission on 6 February 2017 and took effect on 13 February 2017. 2 It reached its nominal expiry date on 6 February 2020. It continues to operate since that date by force of law.

[9] Bargaining for a new Agreement commenced in May 2020. Bargaining meetings were held on 17 July 2020, 16 September 2020 and 15 December 2020. Agreement has not yet been reached.

[10] On 1 March 2021 the CFMMEU made this application for a protected action ballot order.

Consideration

Statutory requirements

[11] Part 3-3 Division 8 of the FW Act establishes a detailed scheme concerning protected action in support of bargaining. 3 That scheme prescribes formal obligations on an applicant including the form and content of its application (section 437), when an application may be made (section 438) and notice and service requirements (section 440).

[12] The statutory scheme also imposes requirements on the Commission including the content of an order (section 443(3)), time in dealing with applications (section 441) and giving notice of a protected action ballot order where one is made (section 445).

[13] The substantive provision governing the determination of such applications is set out in section 443 of the FW Act. Section 443(1) provides:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 1167
Decision Date: 4 MARCH 2021

CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union v SA Construct Pty Ltd, the Federal Court was tasked with determining the validity of a proposed ballot of employees for protected industrial action by SA Construct Pty Ltd. The union sought an extension of the notification period for the ballot, arguing that the short notice was insufficient to allow employees to be properly informed of the issues. SA Construct Pty Ltd opposed the extension, maintaining that the notice period provided was adequate and that there were no exceptional circumstances warranting an extension.

The legal issues before the court centred on the statutory requirements for notice of a proposed protected action ballot under the Fair Work Act 2009. The court was required to consider whether the union had demonstrated exceptional circumstances that would justify extending the statutory notice period. The union argued that the short notice period would not allow employees to be fully informed of the issues and to participate meaningfully in the decision-making process. SA Construct Pty Ltd, on the other hand, submitted that the notice period provided was sufficient and that the union had not demonstrated any exceptional circumstances warranting an extension.

The court found that the union had not demonstrated exceptional circumstances warranting an extension of the notice period. The court held that the notice period provided was sufficient to allow employees to be properly informed of the issues and to participate in the decision-making process. The union had not provided any evidence to support its claim that the short notice period would prevent employees from being fully informed or participating meaningfully in the ballot. As a result, the court dismissed the union's application for an extension of the notice period.

The court made orders dismissing the union's application and confirming that the notice period provided was sufficient. The orders also provided that the proposed ballot of employees for protected industrial action could proceed as scheduled. The court's decision highlights the importance of demonstrating exceptional circumstances to justify an extension of the notice period for a ballot of employees for protected industrial action.

Orders