DECISION

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

Construction, Forestry, Mining and Energy Union
v
Bricks Australia Services Pty Limited
(B2017/1177)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 DECEMBER 2017

Proposed protected action ballot of employees of Bricks Australia Services Pty Limited.

[1] 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 Bricks Australia Services Pty Limited (Respondent).

[2] On 11 December 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 declarations of Mr M Cunningham and Mr P Connell 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 PR598585.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry, Mining and Energy Union and Bricks Australia Services Pty Limited. The dispute centred on a proposed ballot of employees by the Union to authorise protected industrial action. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over workplace relations. The Union sought to conduct a protected action ballot among the employees of Bricks Australia Services Pty Limited, a civil construction company. The legal issues that arose were whether the Union's proposed ballot complied with the requirements of the Fair Work Act 2009 (Cth) and the associated regulations, particularly those relating to the timing and content of the ballot.

The Commission examined whether the Union's ballot notice was clear, concise and in plain language, as required by the legislation. It also considered whether the ballot notice contained all the information necessary for employees to make an informed decision, including the nature and purpose of the proposed action, the potential impact on the employees, and the period for which the authorisation would be valid. Furthermore, the Commission assessed whether the ballot complied with the procedural requirements, such as the timing of the ballot relative to the proposed action and the distribution of the ballot notice to all affected employees. After considering the evidence and arguments presented by both parties, the Commission determined that the Union's proposed ballot did not comply with the requirements of the Fair Work Act 2009 (Cth) and the regulations. The Commission found that the ballot notice was not in plain language and did not contain all the necessary information for employees to make an informed decision. Consequently, the Commission disallowed the proposed ballot and declared it invalid.

The Commission's decision was based on a detailed analysis of the statutory provisions and the evidence presented in the case. The Union's failure to provide a ballot notice that was clear, concise and in plain language, and that contained all the necessary information, rendered the ballot invalid. The Commission's decision highlights the importance of ensuring that unions comply with the legal requirements when conducting protected action ballots to avoid potential legal challenges and ensure that employees are properly informed.

Construction, Forestry, Mining and Energy Union v Bricks Australia Services Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established