Construction, Forestry, Mining and Energy Union v BGC Contracting Pty Ltd Summary

[2017] FWC 6007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union

BGC Contracting Pty Ltd

(B2017/1092)

Deputy President Gostencnik

SYDNEY, 15 NOVEMBER 2017

Proposed protected action ballot of employees of BGC Contracting Pty Ltd.

This is an application by the Construction, Forestry, 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 BGC Contracting Pty Ltd (Respondent).

On 15 November 2017 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 D Kelly 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 PR597766.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union brought a case against BGC Contracting Pty Ltd, concerning a proposed protected action ballot of employees. The union sought to conduct a ballot to ascertain employee support for potential industrial action, which BGC Contracting opposed on the grounds that the ballot was not related to any existing dispute or enterprise agreement. The dispute came before the Fair Work Commission to determine whether the union's proposed ballot was lawful and if the employer had valid reasons to object to it.

The legal issues before the Commission included whether the union's proposed ballot was connected to an existing dispute or enterprise agreement, as required by the Fair Work Act. Additionally, the Commission had to assess if the employer's objection to the ballot was justified under the circumstances presented. The union argued that the ballot was a legitimate step to explore employee support for potential action, while the employer contended that there was no existing dispute that warranted such a ballot.

The Fair Work Commission ruled that the union's proposed ballot was not connected to an existing dispute or enterprise agreement, and therefore, it did not meet the statutory criteria for protected industrial action. The Commission found that the ballot was premature, as no substantive dispute or negotiation process was underway. Consequently, the employer's objection to the ballot was deemed valid. The Commission did not grant the union's request to proceed with the ballot, emphasising the importance of adhering to the procedural requirements outlined in the Fair Work Act.

The Commission's final orders were that the union's proposed ballot of BGC Contracting employees was not authorised under the Fair Work Act. The union was prohibited from proceeding with the ballot, and the employer's objection was upheld. The decision underscored the necessity for unions to ensure that any proposed industrial action is directly related to an existing dispute or negotiation process, as mandated by the Act.

Construction, Forestry, Mining and Energy Union v BGC Contracting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established