DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Watpac Construction Pty Ltd
(B2020/633)

DEPUTY PRESIDENT DEAN

SYDNEY, 13 OCTOBER 2020

Proposed protected action ballot of employees of Watpac Construction Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Watpac Construction Pty Ltd (Respondent).

[2] On 13 October 2020, 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 statutory declaration of Darren Greenfield of the CFMMEU 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 PR723519.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) brought an action against Watpac Construction Pty Ltd in the Fair Work Commission. The CFMEU sought an order for Watpac to conduct a ballot of its employees regarding proposed protected action, specifically industrial action in the form of a strike. The legal issues centred on whether Watpac had complied with the requirements under the Fair Work Act 2009 to hold a ballot and the appropriate process for conducting such a ballot. The court had to determine if Watpac was required to hold a ballot and, if so, whether the proposed process complied with the legislative requirements.

The court considered the obligations imposed by the Fair Work Act 2009 on employers to facilitate a ballot when employees seek to engage in protected industrial action. The central issue was whether Watpac had to conduct a ballot and whether the ballot process they proposed was lawful. The court examined the procedural requirements and the statutory provisions that governed the conduct of the ballot, including the necessity of a secret ballot and the right of employees to vote. The court also assessed whether the CFMEU had correctly followed the prescribed steps in requesting the ballot and whether Watpac had responded appropriately.

The court ruled that Watpac was indeed required to hold a ballot as requested by the CFMEU. It found that Watpac's proposed ballot process did not comply with the necessary legislative requirements for a secret ballot, primarily because it did not ensure the anonymity of the employees' votes. The court ordered Watpac to conduct a proper secret ballot in accordance with the Act's provisions. It directed Watpac to ensure that the ballot process would protect the employees' right to vote without fear of reprisal or identification.

In conclusion, the Fair Work Commission mandated that Watpac Construction Pty Ltd conduct a lawful secret ballot of its employees as requested by the CFMEU. The court's decision underscored the importance of adhering to the statutory requirements for conducting such ballots to protect the rights of employees and maintain industrial peace.

Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction 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