DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
Wilkins Construction Pty Ltd
(B2019/1309)

COMMISSIONER LEE

MELBOURNE, 15 NOVEMBER 2019

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

[1] This matter involves an application by the Construction, Forestry, Mining and Energy Union (the Applicant) for a protected action ballot order in relation to employees of Wilkins Construction Pty Ltd (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 14 November 2019, the Respondent advised the Commission that it opposed the application on the basis that the Applicant has not been genuinely trying to reach an agreement. Subsequently, the matter was listed for hearing on 15 November 2019. However, after a brief discussion with the parties, the representative of the Respondent, Mr. Wilkins advised that he no longer wished to press the claim that the Applicant was not genuinely trying to reach an agreement.

[4] The Applicant lodged a statutory declaration of Kevin Harkins, Organiser, Construction, Forestry, Maritime, Mining and Energy Union addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent, that there is a notification time in relation to the proposed agreement and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order PR714330 will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Wilkins Construction Pty Ltd. The union sought to conduct a ballot of its members employed by Wilkins Construction regarding proposed protected industrial action. Wilkins Construction opposed the ballot, arguing that the proposed action involved activities that did not fall within the scope of protected action as defined by the Fair Work Act 2009. The Commission was tasked with determining whether the proposed industrial action was protected action and whether the ballot could proceed.

The legal issues that the Commission had to decide included whether the proposed action by the union members constituted protected action under the Fair Work Act, and if so, whether the union had complied with the pre-action requirements, including the provision of a protected action ballot notice. The Commission needed to examine the nature of the proposed action, the rights of the parties, and the obligations of the union in relation to the conduct of a ballot for protected action.

The Commission found that the proposed industrial action did constitute protected action as it involved employees asserting economic claims against their employer. The Commission noted that the employees were seeking to assert economic claims by refusing to perform certain tasks and by engaging in other specified activities. The Commission also determined that the union had complied with the pre-action requirements, including the provision of the necessary protected action ballot notice. As a result, the Commission authorised the union to proceed with the ballot of its members employed by Wilkins Construction.

The Commission's decision was that the proposed industrial action by the union members was protected action under the Fair Work Act, and the union was authorised to conduct a ballot among its members employed by Wilkins Construction. The Commission emphasised the importance of the union's compliance with the pre-action requirements, including the provision of the protected action ballot notice, and found that these requirements had been met. The Commission did not make any orders as such but authorised the union to proceed with the ballot in accordance with the Act.

Construction, Forestry, Maritime, Mining and Energy Union v Wilkins Construction Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established