DECISION

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

Construction, Forestry, Mining and Energy Union
v
Broadspectrum (Australia) Pty Ltd
(B2017/798)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 SEPTEMBER 2017

Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd.

[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 Broadspectrum (Australia) Pty Ltd (Respondent).

[2] On 6 September 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 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.

[5] An order has been separately issued in PR595893.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the Construction, Forestry, Mining and Energy Union to hold a ballot of employees of Broadspectrum (Australia) Pty Ltd to determine whether those employees wished to engage in protected action. The dispute arose out of a proposed restructuring of Broadspectrum which would result in the loss of employment of a number of employees. The Union sought to hold a ballot in order to determine whether those employees wished to engage in protected action, including a strike. Broadspectrum opposed the ballot on the basis that it did not meet the requirements of section 358 of the Fair Work Act 2009 (Cth).

The central legal issue before the Commission was whether the proposed ballot complied with section 358 of the Fair Work Act, which sets out the requirements for a ballot of employees in relation to protected industrial action. Broadspectrum submitted that the ballot notice was deficient in a number of respects, including that it did not specify the protected action in sufficient detail and that it did not provide a sufficient period of time for the employees to consider the proposed action. The Union submitted that the ballot complied with the requirements of the Act.

In determining the issue, the Commission noted that the Act requires that a ballot notice specify the protected action in sufficient detail to enable the employees to make an informed decision as to whether or not to engage in that action. The Commission found that the ballot notice in this case provided sufficient detail for the employees to make an informed decision, and rejected Broadspectrum’s argument that the notice was deficient in this respect. The Commission also found that the period of time provided for the employees to consider the proposed action was sufficient. Accordingly, the Commission determined that the ballot complied with the requirements of the Act and ordered that the ballot proceed.

In light of this determination, the Commission ordered that the Union’s proposed ballot of Broadspectrum employees proceed in accordance with the directions set out in the reasons for the decision. Broadspectrum was ordered to facilitate the holding of the ballot and to take such steps as were necessary to enable the employees to vote in the ballot. The Union was ordered to provide Broadspectrum with a copy of the ballot papers and to provide such other information and materials as were necessary to enable the employees to make an informed decision as to whether or not to engage in the proposed protected action.

Construction, Forestry, Mining and Energy Union v Broadspectrum (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established