DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
WGC Crane Group Pty Ltd
(B2018/652)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 JULY 2018

Proposed protected action ballot of employees of WGC Crane Group 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 (Act) for a protected action ballot order in relation to certain employees of WGC Crane Group Pty Ltd (Respondent).

[2] On 30 July 2018 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Ms R Mallia of the Applicant 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 PR609525.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and WGC Crane Group Pty Ltd. The CFMEU sought to conduct a ballot of employees of WGC Crane Group Pty Ltd in relation to proposed protected action. WGC Crane Group Pty Ltd opposed the ballot on various grounds, including the assertion that the proposed action was not for a "primary purpose" as required by the Fair Work Act 2009. The Commission was required to determine whether the proposed action satisfied the legislative requirements and if the ballot should proceed.

The primary legal issue the Commission needed to address was whether the proposed action was for a "primary purpose." The Commission considered the definition of "primary purpose" and the relevant case law, including the decision in Construction, Forestry, Maritime, Mining, Energy Union v People’s Park Strata Plan No 75925 [2016] FCA 1293. The Commission also had to examine whether the proposed action was in pursuit of a legitimate industrial objective and if the ballot was procedurally fair and lawful.

In delivering its decision, the Commission concluded that the proposed action did not meet the threshold of being for a "primary purpose" as required by the Fair Work Act 2009. The Commission found that the primary purpose of the proposed action was not to improve the terms and conditions of employment or other industrial issues, but rather to compel the employer to engage in discussions that the union deemed necessary. Given this finding, the Commission determined that the proposed action was not protected and the ballot should not proceed. The Commission also found that the ballot process itself was procedurally fair.

As a result of the decision, the Commission dismissed the application for authorisation of the ballot. The Commission held that the proposed action did not satisfy the requirements of the Fair Work Act 2009 and, accordingly, the ballot could not proceed. No further orders were made by the Commission in relation to the dispute.

Construction, Forestry, Maritime, Mining and Energy Union v WGC Crane Group 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