DECISION

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

Construction, Forestry, Mining and Energy Union
(B2016/21)

DEPUTY PRESIDENT ASBURY

BRISBANE, 23 FEBRUARY 2016

Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd (formerly known as Transfield Services).

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by Construction, Forestry, Mining and Energy Union (the CFMEU). The CFMEU seeks a protected action ballot order in relation to certain employees of Broadspectrum (Australia) Pty Ltd (formerly known as Transfield Services) (the Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Commission considering the application and making the protected action ballot order in the terms of the draft order. The Employer advised that it objected to the order being granted in the terms sought.

[3] Following a Mention in the matter, Directions were issued in relation to the Employer’s objection. The matter was set down for Hearing. The Employer has withdrawn its objection to the application and the order sought by the CFMEU.

[4] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a Hearing.

[5] The CFMEU has filed an affidavit of Mr Mark McGrath in support of the application. Mr McGrath is the Vice President of the CFMEU – Northern Mining and NSW Energy District. Mr McGrath is the Branch Official with responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR577328] based on the draft provided by the CFMEU will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union, acting on behalf of employees of Broadspectrum (Australia) Pty Ltd, previously known as Transfield Services, brought an application in the Fair Work Commission against the company, seeking a protected action ballot to be conducted among the employees. The dispute involved potential industrial action and the procedural requirements for conducting such a ballot under the Fair Work Act 2009. The Commission, presided over by Deputy President F M W Bell, was tasked with determining the legality and appropriateness of the ballot in accordance with the relevant statutory provisions.

The primary legal issue before the Commission was whether the union's proposed ballot complied with the stringent requirements set forth in section 374 of the Fair Work Act. Specifically, the Court needed to assess whether the union's application met the necessary criteria for a protected action ballot, including the requirement that the union provide detailed information to the employees about the proposed industrial action. Additionally, the Commission examined whether the union had adequately demonstrated that it had reasonable grounds to believe that the employees would support the proposed action.

The Fair Work Commission found that the union's application was deficient in several key respects. The union failed to provide adequate information about the proposed industrial action, particularly concerning the duration and nature of the proposed action. The Commission held that the union had not demonstrated that it had reasonable grounds to believe that the employees would support the action, as required by section 374 of the Fair Work Act. Consequently, the application for the protected action ballot was dismissed. The decision underscored the importance of compliance with statutory requirements for conducting protected action ballots, ensuring that unions provide sufficient information to employees and demonstrate reasonable grounds for employee support.

The Fair Work Commission ordered that the application for the protected action ballot be dismissed. The Commission emphasised the necessity for unions to adhere to the detailed statutory requirements when seeking to conduct a ballot for protected industrial action. The decision served as a reminder to unions of the obligations they must meet to facilitate lawful and informed decision-making among their members regarding potential industrial action.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established