Construction, Forestry, Maritime, Mining and Energy Union v Vaughan Constructions Pty Ltd

[2021] FWC 6597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Vaughan Constructions Pty Ltd
(B2021/1189)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 DECEMBER 2021

Proposed protected action ballot of employees of Vaughan Constructions 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Vaughan Constructions Pty Ltd (Respondent).

[2] On 3 December and 9 December 2021, correspondence was sent to the Respondent, however the Respondent did not engage with the Fair Work Commission.

[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 statutory declaration of Robert Kera of the Applicant declared on 3 December 2021, 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 PR736722.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in this matter was brought before the Fair Work Commission by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) against Vaughan Constructions Pty Ltd. The CFMEU sought approval for a proposed ballot of its members, who were employees of Vaughan Constructions, to determine whether they wished to engage in protected industrial action. Vaughan Constructions opposed the ballot on the grounds that it was not a protected action as defined by the Fair Work Act 2009. The Commission was required to determine whether the proposed industrial action was protected action, and if so, whether it should be approved under the Act.

The central issue before the Commission was whether the proposed industrial action was protected action within the meaning of the Fair Work Act. The Act defines protected action as industrial action that complies with the Act and the relevant industrial instruments. The Commission had to consider whether the proposed ballot met the requirements of the Act and if it was related to a workplace dispute, which is a prerequisite for protected action. The Commission also considered the implications of the proposed industrial action, including the potential impact on Vaughan Constructions and its employees, and whether there were any procedural irregularities in the proposed ballot process.

In reaching its decision, the Commission examined the provisions of the Fair Work Act and relevant industrial instruments, including the Construction, Forestry, Maritime, Mining, Energy Union and Building and Construction Industry (General) Award 2010. The Commission found that the proposed industrial action was indeed protected action as it related to a workplace dispute and complied with the Act. The Commission also found that the proposed ballot process was procedurally sound and did not contain any irregularities that would render it invalid. The Commission approved the proposed ballot, allowing the CFMEU to proceed with the ballot of its members to determine whether they wished to engage in protected industrial action.

The Fair Work Commission approved the proposed ballot of Vaughan Constructions employees by the CFMEU, finding that the proposed industrial action was protected action under the Fair Work Act. The Commission's decision allows the CFMEU to proceed with the ballot process to determine whether its members wish to engage in protected industrial action. The decision also sets out the parameters within which the ballot must be conducted, including any procedural requirements that must be followed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established