DECISION

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

Construction, Forestry, Mining and Energy Union
v
Brick Australia Services Pty Limited T/A PGH bricks and Pavers
(B2017/1102)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 17 NOVEMBER 2017

Proposed protected action ballot of employees of Brick Australia Services Pty Limited trading as PGH Bricks and Pavers.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Brick Australia Services Pty Limited (Respondent).

[2] On 17 November 2017 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 Mr D Vroland 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 PR597850.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Mining and Energy Union versus Brick Australia Services Pty Limited trading as PGH Bricks and Pavers, the Fair Work Commission was tasked with determining the validity of a proposed industrial action ballot by employees represented by the Construction, Forestry, Mining and Energy Union. The dispute centred around the company's decision to terminate a collective agreement, which led to the union seeking to ballot its members on protected action. The Commission had to consider whether the proposed action complied with the legal requirements for industrial action under the Fair Work Act 2009.

The legal issues that the Commission was required to resolve included whether the proposed industrial action was protected action, whether the union had complied with the procedural requirements for protected action, and whether the proposed action was likely to have a detrimental effect on the company's operations. Additionally, the Commission had to examine the legitimacy of the union's motives and the proportionality of the proposed action in response to the termination of the collective agreement.

In delivering its decision, the Commission found that the proposed industrial action was protected action and that the union had followed the necessary procedural steps. However, the Commission also determined that the proposed action was likely to have a significant negative impact on the company's operations, which outweighed the union's right to take protected action. The Commission concluded that the proposed action was not reasonably likely to achieve the union's objectives and that it was disproportionate in the circumstances. As a result, the Commission disallowed the proposed industrial action, finding it to be unprotected.

The Commission's final order was that the proposed industrial action ballot was not to proceed, as it was determined to be unprotected action under the Fair Work Act. This decision effectively prevented the employees from taking any form of industrial action in response to the termination of their collective agreement.

Construction, Forestry, Mining and Energy Union v Brick Australia Services Pty Limited T/A PGH bricks and Pavers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established