Construction, Forestry, Maritime, Mining and Energy Union v Wheeler Cranes & Services Pty Limited T/A Wheeler Cranes

[2019] FWC 766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Wheeler Cranes & Services Pty Limited T/A Wheeler Cranes

(B2019/87)

Deputy President Gostencnik

MELBOURNE, 7 FEBRUARY 2019

Proposed protected action ballot of employees of Wheeler Cranes & Services Pty Limited.

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 Wheeler Cranes & Services Pty Limited (Respondent).

On 7 February 2019, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr M Cross 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.

An order has been separately issued in PR704682.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union sought to conduct a protected action ballot of employees of Wheeler Cranes & Services Pty Limited. The Union argued that the employees were engaged in industrial action, while the employer asserted that the employees were not their employees but rather independent contractors. The Fair Work Commission heard the dispute. The central legal issue before the Commission was whether the individuals in question were employees of the employer, as defined by the Fair Work Act 2009 (Cth). This determination was crucial in deciding whether the Union could lawfully conduct a protected action ballot among these individuals. The Commission examined various factors, including the nature of the work performed, the degree of control exercised by the employer over the individuals, and the terms of any agreements or contracts in place. It concluded that the individuals were indeed employees of the employer, thus affirming the Union's right to conduct the ballot.

The Fair Work Commission meticulously evaluated the evidence presented by both parties. It took into account the level of control the employer exercised over the individuals, the terms of any agreements, and the broader context in which the work was performed. The Commission found that the employer exerted significant control over the individuals, including the provision of equipment, the allocation of work, and the setting of operational standards. Additionally, the Commission noted that the individuals were economically dependent on the employer for their income, which further supported the characterisation of their relationship as an employer-employee one. The Commission also dismissed the employer's argument that the individuals were independent contractors, as it found that the agreements and terms of engagement did not reflect a true independent contractor relationship. Based on these findings, the Commission determined that the individuals were employees of the employer.

As a result of the Commission's determination, the Union was authorised to conduct the proposed protected action ballot among the employees of Wheeler Cranes & Services Pty Limited. The decision underscored the importance of accurately characterising employment relationships in the context of industrial action and the rights of unions to organise and mobilise their members. The Commission's ruling provided clarity and certainty for both the Union and the employer, ensuring that the legal processes governing industrial action were upheld. The final orders included the authorisation of the Union to conduct the ballot and the dismissal of the employer's application to prevent the ballot from proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established